N.Y. Times Co. v. DOD, No. 19-9821, 2022 U.S. Dist. LEXIS 73396 (S.D.N.Y. Apr. 21, 2022) (Broderick, J.)

N.Y. Times Co. v. DOD, No. 19-9821, 2022 U.S. Dist. LEXIS 73396 (S.D.N.Y. Apr. 21, 2022) (Broderick, J.)

Re:  Request for records concerning interrogation technique

Disposition:  Ordering defendants to review records for production at minimum rate of 500 pages every sixty days and ordering parties to jointly file status updates  

• Litigation Considerations: "In exercising its judicial review, a court has 'broad discretion to determine a reasonable processing rate for a FOIA request.'"  The court notes "[t]he parties disagree as to the rate of CENTCOM's review.  Plaintiff primarily argues that courts have 'regularly ordered agencies to process records at significantly higher rates than the rates either party here proposes.'"  "Defendants counter that 'higher processing rates that may be reasonable for other agencies are not necessar[il]y reasonable for CENTCOM . . . .'"  "CENTCOM has a starting backlog of 3,421 FOIA requests, and . . . the number of FOIA requests has increased more than 500 percent in the last seven years."  "The FOIA requests themselves have also become more complicated over time."  The court acknowledges that "most of CENTCOM's searches must be 'conducted using SECRET and TOP-SECRET-level computer systems,' and 'documents must undergo classification reviews before they can be processed for FOIA exemptions.' " However, "while the difficulty of processing classified materials is certainly relevant, it cannot be dispositive."  "Defendants have offered evidence that CENTCOM has increased its capacity."  "CENTCOM 'doubled its staff' in 2020 to eight full-time FOIA employees.  While two of those eight employees have since departed, 'CENTCOM is working to replace employees,' and . . . CENTCOM should [soon] have double the capacity to process FOIA requests compared to the capacity it had before 2020."  "Considering the totality of the circumstances . . . [the court finds] that a rate of 500 pages every 60 days should be practicable."