Feds for Freedom v. DOD, No. 23-3607, 2025 WL 522017 (D.D.C. Feb. 18, 2025) (Kelly, J.)

Feds for Freedom v. DOD, No. 23-3607, 2025 WL 522017 (D.D.C. Feb. 18, 2025) (Kelly, J.)

Re: Request for records concerning COVID-19 pandemic and Operation Warp Speed

Disposition:  Granting defendant’s motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that “[t]here is no genuine dispute of material fact that Plaintiff’s FOIA request would be unreasonably burdensome on Defendant.”  “The D.C. Circuit established [the] category [of burdensome searches] in American Federation of Government Employees v. Department of Commerce (AFGE), 907 F.2d 203 (D.C. Cir. 1990).”  “The Circuit identified two reasons for concluding that the requests at issue would impose an unreasonable burden on the agency.”  “First, responding would be quite costly as it ‘would require the agency to locate, review, redact, and arrange for inspection a vast quantity of material.’”  “Second, the requests were ‘largely unnecessary to the [requesters]’ purpose.’” “Defendant’s declaration from a former FOIA attorney establishes that Plaintiff’s request would involve significant resources and post-search efforts.”  “Specifically, the declaration asserts that, because of the cross-cutting impact COVID-19 had on the Department’s functioning, Plaintiff’s request would be akin to a FOIA request seeking ‘all communications regarding Iraq or Afghanistan during 25 months at the height of either campaign.’”  “In support, the declaration states that a preliminary search based upon Plaintiff’s request yielded over 1.2 gigabytes of records, a volume ‘so large that attempts to get an accurate document and page count have failed.’”  “Estimates, however, are that ‘there are over 2,000 [responsive] emails, each with attachments.’”  “With each email containing an estimated average of ‘3 pages per email’ and ‘10 pages per attachment,’ Plaintiff’s request would cover over ‘26,000 pages of records.’”
  
  “The sheer volume of responsive pages is not the only issue.” “Instead, as the requested ‘records are communication to or from the Department’s front office, the discussions would require the most scrutinous review.’”  “And because of various ‘required actions,’ including ‘initial review, the need to send documents to subordinate [Department] components or other federal agencies for consultations, final quality control, and legal review,’ processing each page would likely ‘take an average of 15 minutes.’”  “In sum, Plaintiff’s request would require about 6,500 hours of work.”  “This falls well beyond the normal range of time courts in this district have determined to be reasonable.”  “When searches or processing fall within the tens- or hundreds-of-hours range, courts routinely find the requests reasonable.”  “When search and review would extend into the multiple thousands of hours . . . a different pattern emerges.”  “Furthermore, if a search would require a multi-member team to spend every working hour for a year or more on a FOIA request, a court may be able to conclude that the search is burdensome.”  “Here, Plaintiff’s request fits neatly within the range of required-response time that courts have determined to be unreasonable.” “Additionally, it would take a team of three FOIA attorneys, working around the clock, over a year to accomplish the over 6,500 hours of work required to complete Plaintiff’s request.”
  
  “Plaintiff's responses are unpersuasive.”  “First, it argues that its request is not unduly burdensome as it targets only ‘a single official’s communications . . . related to a single operation.’”  “But this ignores the status of that official and the nature of the operation (not to mention it also ignores that the request sought all communications related to COVID-19 generally, not just Operation Warp Speed.”  “Second, Plaintiff argues that Defendant is making much ado about nothing because the 1.2 gigabytes of information Defendant found in a preliminary search would fit on a $2 flash drive or in five maximum-capacity emails sent by Gmail.” “But the size of any given file does not necessarily reflect the amount of time that it would take for Defendant to review it:  A high-resolution picture, for example, could take mere seconds to review despite having a large file size, while a small file containing a long document full of text could take much longer.”  “For this reason, courts have focused on an agency’s ‘good faith estimate of the excessive amount of time required to complete a search that it feels is unreasonably burdensome’ in deciding whether to ‘uph[o]ld the agency’s refusal to conduct the requested search.’”  “Third, Plaintiff argues that a search producing 26,000 pages of documents ‘is common for issues of this kind.’”  “Even if that is true, it still misunderstands the relevant inquiry.” “As just discussed, courts focus on the time and expense that responding to a FOIA request would require in assessing the request’s reasonableness.”  “The number of pages, divorced from the resources that would be required to process those pages, only tells a fragment of the story.” “Finally, Plaintiff argues that ‘the notion that each page would take an average of 15 minutes to review is inflated.’” “Instead, Plaintiff speculates that ‘[f]ifteen minutes is likely to be the outer limited expended on any single page, and likely to be an outer limit reached only rarely.’”  “Plaintiff’s support?”  “Nothing.”  “Yet ‘affidavits submitted by the agency to demonstrate the adequacy of its response [to a FOIA request] are presumed to be in good faith.’”
  
  “All the above said, ‘burdensomeness does not boil down to a simple game of numbers.’”  “FOIA requests can and do include productions that take years to complete.”  “This is where AFGE’s second consideration – the reasonableness of the request in light of the requester’s ‘purpose’ . . . – comes into play.” “Defendant argues that the breadth of Plaintiff’s request is unreasonable in light of Plaintiff’s asserted purpose.”  “In its complaint, Plaintiff alleges that its ‘purpose . . . is to protect employee rights by confronting the federal government’s mandates requiring vaccination for COVID-19.’”  “But Plaintiff’s FOIA request is not so limited.”  “It sought ‘all communications related to’ COVID-19 generally and, more specifically, ‘to Operation Warp Speed (OWS), companies contracted to work with [the Department,] and other government elements on OWS,’ including communications regarding “any commercial contracts and/or [Department] contracts made between the federal government and companies involved in OWS.”  “Thus, Plaintiff’s request asks for records well beyond its asserted interest, and it would undoubtedly require the agency to process ‘thousands of [pages] with no conceivable relation to the policies in which [Plaintiff] proclaims an interest.’”  “Thus, the burden that Plaintiff’s request would place on Defendant ‘is “more obvious[ly]” unreasonable given this mismatch between the material that [Plaintiff] says it wants and the material that [Plaintiff’s] requests will force [Defendant] to review.’”