Daily Caller News Found. v. FBI, No. 18-1833, 2019 WL 2411286 (D.D.C. June 7, 2019) (Kollar-Kotelly, J.)

Daily Caller News Found. v. FBI, No. 18-1833, 2019 WL 2411286 (D.D.C. June 7, 2019) (Kollar-Kotelly, J.)

Re:  Request for records concerning FBI employee

Disposition:  Denying defendant's motion for Open America stay

Litigation Considerations, "Open America" Stays of Proceedings:  The court rejects defendant's request that the court "stay this matter 'until December 25, 2020, at which time the FBI will begin processing Plaintiff's FOIA request at a rate of 500 reviewed pages per month.'"  "The Court finds that the statistical evidence presented by the parties supports a finding of no exceptional circumstances."  First, "[w]hile the number of FOIA requests received by the FBI increased from 2015 to 2016, from 12,931 to 15,202, the number held steady at around 15,100 from 2016 to 2017, and this was not as high as the number of requests received during the 2008-2009 time frame, which ranged between 15,664 and 17,241 requests."  "The statistical evidence cited by the Defendant shows a steady increase in FOIPA requests (about 20 percent annually) from 2016-2018."  "Accordingly, the increase in the amount of FOIA requests cannot be said to be unforeseen or remarkable."  Second, the court finds that "[w]hile the FBI claims that the requests now being processed are more complex and further, that technological advances have made it more difficult to complete the processing, the FBI provides no evidence to support these claims other than anecdotal evidence, and accordingly, there is not enough information from which the Court could conclude that the overall complexity of the FBI's workload has increased over time or that technological advances have slowed the process."  Third, "[t]he Court finds that the FBI's involvement in other litigation regarding FOIA requests indicates that the number of cases being litigated has increased at a steady rate, which shows that the FBI is dealing with a predictable workload, and this does not weigh in favor of granting an Open America stay."  Fourth, "the Court finds that the FBI has not made reasonable progress in reducing its backlog of FOIA requests."  "During 2008 and 2009, the FBI was processing around 16,400 requests each year, similar to the approximately 15,600 requests processed in 2017; however, the backlog was around 1,400 requests in 2008-2009, while it stands at around 4,400 requests in both 2016 and 2017."  "Furthermore, while the number of requests processed in 2016 was approximately 13,750, which was on par with 2015, the backlog jumped from approximately 2,600 in 2015 to 4,300 in 2016."  The court explains that "the FBI mentioned that it is engaged currently in an 'aggressive hiring program' to try to keep up with 'constant personnel turnover,' and it has secured additional funding recently to hire more contract personnel; however, the FBI concedes that it 'takes years to fully develop a FOIA analyst' and thus, the 'increase in production from these contractors will likely be incremental.'"  Overall, "[the] Court finds no reason in this case to vary from the FBI's policy of processing 500 pages per month, which will result in a processing schedule spanning 14 months from June 2019 through August 2020."  "Because it is unclear what types of documents fall within the 7,000 pages, the Court directs that the FBI categorize the documents so that Plaintiffs can establish an order for production in which public documents are produced last. Production should be made on a rolling basis."