Energy Future Coal. v. OMB, No. 15-1987, 2016 WL 4007076 (D.D.C. July 25, 2016) (Kollar-Kotelly, J.)

Energy Future Coal. v. OMB, No. 15-1987, 2016 WL 4007076 (D.D.C. July 25, 2016) (Kollar-Kotelly, J.)

Re: Request for records concerning toxic emissions

Disposition: Granting defendant's motion for Open America Stay

• Litigation Considerations, "Open America" Stays of Proceedings: "[T]he Court finds that OMB has met its burden at showing both exceptional circumstances and due diligence." "As to the 'extraordinary circumstances' factor, the declaration of OMB's FOIA officer – which the Court accords a presumption of good faith that has not been rebutted by Plaintiffs on this issue – indicates that OMB has faced a significant increase in the number of FOIA requests, which has resulted in a growing backlog in the processing of such requests." The court also notes that "OMB has only two full-time employees devoted to processing FOIA requests." "The Court also finds that OMB 'is exercising due diligence' in processing Plaintiffs' request." The court explains that "OMB's counsel worked with Plaintiffs' counsel to narrow the scope of the FOIA request." Also, "[s]ince April 2016, OMB has reviewed 500 emails each month, and as of the date of this Memorandum Opinion, OMB has completed the review of approximately 2,000 of the 4,900 emails identified as potentially responsive to Plaintiffs' request." "In addition, the Court finds that OMB has exercised due diligence by processing Plaintiffs' FOIA request within OMB's 'multi-track' processing." "Furthermore, at present, OMB is processing 27 other FOIA requests that pre-date Plaintiffs' request and have been identified by OMB as 'complex' in nature." "[T]he Court notes that OMB has not specified the length of time for which they seek an Open America stay." However, the court finds that, "[a]t OMB's current rate of reviewing 500 emails per month, it is expected that OMB will complete its review of the emails at issue within the next six months." "Accordingly, the Court shall grant OMB a stay of six months, until January 25, 2017." "In the interim, OMB shall continue to review 500 documents per month and shall produce any responsive documents each month until it has produced all responsive documents that it has gathered." Also, "the Court shall require OMB to file a status report with the Court."