Rojas v. FAA, No. 16-03067, 2019 WL 4016613 (D. Ariz. Aug. 26, 2019) (Snow, C. J.)

Rojas v. FAA, No. 16-03067, 2019 WL 4016613 (D. Ariz. Aug. 26, 2019) (Snow, C. J.)

Re:  Plaintiff's challenge concerning estimated completion dates ("ECDs"), production issues, and fee issues

Disposition:  Denying plaintiff's motion

• Litigation Considerations:  The court relates that "[plaintiff's] primary contention here is that in some instances, the FAA has unreasonably revised its initial ECDs and that in other instances the FAA has failed to meet the ECDs it gave."  The court finds that "Court intervention regarding the ECDs is not warranted here" because "the Court declines to second-guess the agency's determinations regarding its own work capacity."  The court also relates that "[plaintiff] also complains that the FAA did not meet some of the original ECDs – and the FAA admits as much."  "But for those requests, it did make productions shortly after the ECD."  "In fact, for each of those requests, the FAA completed its response within three business days of the ECD."  "Since, again, the ECDs are estimates, a production made within three business days of an ECD is not unreasonable and does not warrant judicial intervention."
  
  The court also finds that "a specific page quota for each month is not necessary or even workable here."  "The Petitioner has not demonstrated that the FAA has the capacity to supply any particular monthly-rolling quota."  "The FAA has represented that it will make monthly productions, and it has provided ECDs for each of the requests."  "How to meet those ECDs is best left to the discretion of the agency at this point."
   
• Procedural Requirements, Administrative Appeals:  The court holds that "[r]equiring the FAA to allow interim appeals of its rolling productions is not necessary here."  "Although DOJ guidelines do suggest that interim appeals be allowed, they do not require that they be."  "And neither does the FOIA itself."
   
• Fees and Fee Waivers, Fees:  The court relates that "within the original twenty-day period for response by the agency, the FAA acknowledged receipt of [the] Request . . . and informed [plaintiff] that it had determined that 'unusual circumstances' applied because 'it [was] necessary to search for and collect the requested records utilizing an office that is separate from the office(s) processing the request.'"  "The FAA's letter also invited [plaintiff] to discuss reformulation of the request or an alternative time frame for processing the request."  The court finds that "[t]he FAA's response . . . thus complied with the requirements for notice under (a)(6)(B)."  "For that reason, because the agency had determined that unusual circumstances existed and that more than 5,000 pages would be necessary to respond to the request, it was allowed to assess fees."
  
  The court also relates that "[plaintiff] contends that the agency cannot assess fees for the request because the FAA's September 14 letter did not specify that the agency had concluded that its response to the request required more over 5,000 pages of documents."  "But he misreads the statute."  "In order to assess fees, the FAA was only required to 'determine[ ] that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request' so long as 'the agency has provided a timely written notice to the requester in accordance with [§ 552(a)(6)(B] and the agency has discussed with the requester via written mail . . . how the requester could effectively limit the scope of the request.'"  "Paragraph (A)(viii) does not require the FAA to tell [plaintiff] that it had concluded that the response would require more than 5,000 pages."  "And neither does paragraph (6)(B)."  "Rather, it requires only that the agency set forth the unusual circumstances it had determined applied, notify [plaintiff] that the request could not be completed within the ten-day extension, and 'provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request.'"  "The agency's letter met those requirements."