Jewell v. U.S. Dep’t of Educ., No. 22-53, 2022 WL 3367760 (D. Vt. Aug. 16, 2022) (Doyle, Mag. J.)

Jewell v. U.S. Dep’t of Educ., No. 22-53, 2022 WL 3367760 (D. Vt. Aug. 16, 2022) (Doyle, Mag. J.)

Re:  Requests for records concerning plaintiff

Disposition:  Granting in part and denying in part defendant’s motion to enter proposed scheduling order; denying plaintiff’s motion for court to order expedited response from defendant

• Litigation Considerations:  First, “the Court modifies the proposed scheduling order to explicitly require status reports to include updates on pages provided for ‘in-progress’ reports.”  Second, the court notes that “[a]lthough Plaintiff’s requests appear to be broad in scope and numerous, at present the Court has no basis to gauge how close the DOE’s production is to completion.”  The court, “[t]o ensure ‘the fullest possible agency disclosure of such information consistent with a responsible balancing of competing concerns,’ . . . requires the next status report to provide an approximate date by which the agency reasonably anticipates completing Plaintiff’s requests.”  Third, the court orders that “DOE’s monthly status report shall include a line item providing the total pages produced over the previous month.”  “As the number of pages released in July 2022 is unclear in the DOE’s first status report, the DOE shall also file an addendum to its July 2022 status report denoting how many pages were released to Plaintiff during that reporting period.”  Fourth, the court notes that “Plaintiff proposes that the DOE prioritize ten requests for production.”  “The agency has agreed to provide nearly half of the requests in the order of priority that Plaintiff proposed, and it represents that it responded to another of the requests before it submitted its proposed schedule.”  “For the remaining requests, the information presently before the Court does not establish a ‘compelling need’ under the statute to warrant an expedited response to the identified requests.”  Fifth, “[t]o the extent that Plaintiff seeks to modify the scope of any request for documents from the DOE, it is appropriate for Plaintiff and the DOE to address the matter in the first instance.”  “As the Scheduling Order is intended to govern the timing and procedure of the production of documents, the Court does not address substantive modifications to the FOIA requests in the Scheduling Order.”
  
  The court also notes that “[a]t the scheduling conference, Plaintiff discussed the DOE’s production of certain responsive documents and its subsequent ‘clawing back’ and re-production of the documents in redacted form.”  “Plaintiff asserts that these 662 pages were ‘[her] evidence that was never requested’ . . . .”  “She therefore requests the production of 1,300 pages ‘to offset the time the agency spent rectifying their own mistake.’”  “Although the Court appreciates Plaintiff’s concern that some of the documents produced thus far apparently consist of documents that she already possesses, this ‘clawing back’ and redaction effort does not affect whether the agency ‘can or should process documents at a rate faster than [650] per month.’”
   
• Litigation Considerations, Vaughn Index/Declaration:  “[T]he Court declines to order the DOE to produce a Vaughn index in conjunction with its ongoing responses to each document request.”  “Given the detail required for each index, producing individualized indices with the agency’s rolling production of responsive documents would likely affect the efficiency of the agency’s responses to Plaintiff’s other pending requests.”  The court explains that “[c]ourts generally do not require the agency to produce Vaughn indices until completion of the document production.”