Korf v. U.S. Dep’t of State, No. 25-20830, 2025 WL 2256143 (S.D. Fla. Aug. 7, 2025) (Elfenbein, Mag. J.)

Korf v. U.S. Dep’t of State, No. 25-20830, 2025 WL 2256143 (S.D. Fla. Aug. 7, 2025) (Elfenbein, Mag. J.)

Re: Request for records concerning plaintiff, as well as nationalization of PrivatBank in Ukraine

Disposition:  Denying defendant’s motion to stay; denying plaintiff’s motion to strike defendant’s reply

• Litigation Considerations, “Open America” Stays of Proceedings:  “Because Defendant has neither demonstrated exceptional circumstances nor shown that it has acted with due diligence, [the court finds that] a stay of these proceedings is not justified.”  Regarding the existence of exceptional circumstances, the court holds that “Defendant’s principal arguments – that the volume and complexity of Plaintiffs’ FOIA request and competing demands from other FOIA cases constitute exceptional circumstances – amount to routine administrative burdens associated with a large workload.”  “Indeed, [defendant’s] Declaration describes predictable and long-standing trends, not unforeseen or remarkable events as required by 5 U.S.C. § 552(a)(6)(C)(ii).” “[Defendant’s] Declaration points to a growing number of FOIA requests year over year, . . . an exponential increase in electronic records over the past decade, . . . and staffing shortages due to budget cuts and part-time employment caps . . . .”  “These conditions described have developed over time and reflect systemic challenges, not sudden or extraordinary disruptions.” “The reference to the COVID-19 pandemic, . . . is outdated in this context, because the effects of COVID-19, five years later, are foreseeable and not an extraordinary circumstance.” “Courts have repeatedly held that increasing workloads, budget constraints, and backlogs are insufficient to justify delay, . . . unless the agency shows reasonable progress in reducing its backlog, which the Defendant has not done, as its backlog has ‘continued to grow.’”  “Defendant states that, from 2019 to 2025, it tripled its processing speed, but received double the number of requests, and its backlog has continued to increase.” “While the Defendant may be making efforts to manage its caseload, the continued growth of its backlog indicates it has not made the progress required to invoke the ‘exceptional circumstances’ defense.”  “Defendant has not provided any credible evidence of meaningful progress toward backlog reduction, relying instead on conclusory statements, and has not, therefore, satisfied the exceptional circumstances requirement.”
  
  Regarding the due diligence analysis, the court relates that “[h]ere, Defendant attests that it processes FOIA requests ‘on a first-in, first-out basis within each of three request tracks: expedited, simple, and complex.’”  “Moreover, Plaintiffs do not argue that there is an exceptional or urgent need to process their request.”  “Instead, Plaintiffs argue that due diligence ‘does not apply to the facts of this case because “unreasonable delays in disclosing nonexempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [such] abuses.”’”  The court finds that, “[h]ere, Defendant failed to provide processing records to demonstrate that it is actually following its claimed first-come, first-served policy.”  “Instead, Defendant relies on conclusory statements regarding its general procedures, without specific reference to Plaintiffs’ request.”  “In fact, [defendant’s] Declaration fails to address any actions taken to process Plaintiffs’ request before February 2025 other than a search for responsive records in December 2022, and it remains unclear to the Court whether Plaintiffs’ pre-suit request was indeed placed in the queue given the failure to produce a single document for two and a half years until after Plaintiffs filed this lawsuit.”  “Additionally, [defendant’s] Declaration discusses an increase in requests in 2023.”  “Plaintiffs point out that ‘[a]ny post-2022 influx of FOIA requests is irrelevant and does not justify the Defendant's failure to process Plaintiffs’ request.’” “The Court agrees as any influx in cases in 2023 would, in theory, not impact Defendant’s document production in response to Plaintiffs’ request (if the Defendant is following the first-come, first-served policy).”  “Without more, Defendant fails to establish that it has complied with its first-come, first-served procedure.”  “As to Plaintiffs’ primary argument, the Court agrees that Defendant has not shown due diligence to warrant a stay of the proceedings.”  “Plaintiffs’ request has been pending for over two years, and Defendant only recently produced some records.”  “In Defendant’s Notice, it fails to state how many documents or pages were produced in this first production or how many remain outstanding.”  “Defendant’s claim that Plaintiffs contributed to the delay by initially failing to clarify their request is unpersuasive as the record evidence shows that Defendant engaged Plaintiffs in ‘narrowing discussions’ only after the filing of this lawsuit in February 2025.”  “Even after Plaintiffs agreed to narrow and prioritize specific subparts, ultimately reducing the initial request from tens of thousands of documents to only 500 priority emails, Defendant has still failed to fully produce those subparts.”  “In short, the Court finds that Defendant has fallen short of demonstrating its due diligence.”
   
• Litigation Considerations, Summary Judgment:  The court relates that “[f]inally, Defendant contends that summary judgment determinations are premature at this time because it has not provided the Court with information needed to assess FOIA exemptions.”  “This argument, however, ignores the claims that are at issue in Plaintiffs’ Complaint and Motion for Summary Judgment.”  “Plaintiffs are not asking the Court to evaluate the validity of any FOIA exemptions.”  “Rather, in their Complaint, Plaintiffs are asking the Court to find that Defendant: (1) failed to conduct an adequate search under 5 U.S.C. § 552(a)(3)(C); (2) failed to respond to their request within the statutory timeframe under 5 U.S.C. § 552(a)(6)(A)(ii)-(iii) and (a)(6)(B); and (3) failed to disclose non-exempt records under 5 U.S.C. § 552(a)(3).” “And a preliminary review of the issues raised on summary judgment reveal that they relate to Defendant’s alleged failure to act on Plaintiffs’ FOIA request prior to the filing of the lawsuit and not to some future action that the Defendant has not yet taken, such as the filing of FOIA exemptions.”