Washington v. GSA, No. 21-00794, 2022 WL 823550 (W.D. Wash. Mar. 18, 2022) (Lin, J.); Washington v. Pub. Bldg. Reform Bd., No. 21-00566, 2022 WL 823548 (W.D. Wash. Mar. 18, 2022) (Lin, J.); Washington v. NARA, No. 21-00565, 2022 WL 823551 (W.D. Wash. Mar.

Washington v. GSA, No. 21-00794, 2022 WL 823550 (W.D. Wash. Mar. 18, 2022) (Lin, J.); Washington v. Pub. Bldg. Reform Bd., No. 21-00566, 2022 WL 823548 (W.D. Wash. Mar. 18, 2022) (Lin, J.); Washington v. NARA, No. 21-00565, 2022 WL 823551 (W.D. Wash. Mar. 18, 2022) (Lin, J.); Washington v. OMB, No. 21-00564, 2022 WL 823547 (W.D. Wash. Mar. 18, 2022) (Lin, J.)

Re: Related requests seeking records regarding the Federal National Archives in Seattle

Disposition:  Granting in part and denying in part plaintiff's motions for summary judgment, denying plaintiff's requests for a status conference, and ordering defendants to produce all remaining non-exempt responsive records within twenty-one days and Vaughn indices within ten days of completing productions

• Procedural Requirements, Time Limits:  "[Agencies] appear[] to concede that [they] missed [their] statutory deadline[s] but argue[] that [they] eventually met [their] determination obligations by informing Plaintiff of the results of [their] search efforts, the scope of exemptions invoked in [their] initial productions, and [their] expectation that similar exemptions would be required for future productions."  "Plaintiff argues that the information [agencies] ha[ve] provided is not specific enough to communicate the scope of documents [they] will produce or withhold, sufficient to meet [their] FOIA obligations."  "Although undeniably untimely, the Court finds that [agencies] ha[ve] nonetheless met [their] obligation[s] to provide a substantive determination."  "The record here indicates that the Parties worked cooperatively, at least until Plaintiff decided to file this motion, to identify the universe of documents that would be reviewed for responsiveness and exemption based on negotiated search parameters and then to determine a production schedule based on the results of those searches."  "Thus, Plaintiff was fully aware of the scope of records involved in its request."  "Further, having produced a subset of those records upon which exemption determinations were made, [agencies] appear[] to have met [their] obligations as to the scope of potential exemptions contemplated in CREW." 
   
• Litigation Considerations, Pattern-or-Practice Claims:  "The only allegations regarding its prior FOIA requests included in [plaintiff's] Complaint[s] are an oblique reference to this being the second round of FOIA requests related to the Seattle National Archives . . . and a footnote referencing the then still pending litigation stemming from the first round of requests."  "Even if these references were sufficient to imply a pattern or practice claim was being raised, as [plaintiff] appears to argue, they are not sufficient to meet the future harm requirement needed to establish standing for such a claim."  "Nor may [plaintiff] amend its Complaint[s] through briefing on summary judgment."
   
• Litigation Considerations, Preliminary Injunctions:  "[Plaintiff] argues that the amount of time between its initial request and the [agencies'] initial production[s] demonstrates an egregious delay."  "Even though length of delay was a consideration in [prior] cases, it was not the sole determinative factor in deciding that the agencies' actions constituted egregious delay."  "[H]ere the Agenc[ies]: (1) actively communicated with [plaintiff] about [their] efforts to identify the universe of potentially responsive documents; (2) worked with [plaintiff] to ensure [they] w[ere] conducting the appropriate searches; and (3) upon identifying the scope of potentially responsive documents, cooperated with [plaintiff] to negotiate a review and production schedule."  "At no point was [plaintiff] left completely in the dark as to whether the Agenc[ies] would respond to its request[s]."  "To the contrary, [plaintiff] was kept informed of the [agencies'] progress along the way."  "While there is no doubt that the [agencies] failed to meet the statutory deadline for providing a complete determination, [their] actions do not rise to the level of egregious delay as to warrant injunctive relief."  "The appropriate 'penalty' for the [agencies'] delay is to relieve [plaintiff] of FOIA's administrative exhaustion requirement, but that is not at issue here."
   
• Procedural Requirements, Responding to FOIA Requests; Litigation Considerations, "Open America" Stay of Proceedings:  "Here, more than [four to six] months elapsed before the [agencies] w[ere] prepared to even begin producing documents and, even then, at a relatively constrained pace."  "That this kind of months long delay could result in summary judgement should be no surprise to the [agencies]."  "The Parties appear to agree that such a delay is excusable if the Agency can show that the delay was due to exceptional circumstances and that the Agency is nonetheless acting with due diligence to complete the request."  "FOIA provides that 'the term 'exceptional circumstances' does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.''  With respect to GSA, NARA, and OMB the court held that "[agencies] fail[] to meet [their] burden of demonstrating 'reasonable progress in reducing [their] backlog[s]' and, therefore, cannot establish the delay was due to exceptional circumstances."  "For this reason, the Court need not decide whether [agencies were] acting with due diligence, as [their] delay cannot be excused without a showing of exceptional circumstances."  "PBRB relies on the fact that it has no dedicated FOIA staff and decided to hire outside contractors to complete [plaintiff's] request."  "PBRB was well aware of its FOIA obligations . . . and provides no explanation for why it could not have predicted the need for sufficient staffing to respond to a request such as [plaintiff's]."  "Regardless of the 'practical difficulties' FOIA presents to federal agencies, 'Congress wrote a tough statute on agency delay in FOIA compliance.'"  "PBRB's predictable lack of adequate staffing and decision to hire contractors does not amount to 'exceptional circumstances' considering FOIA's clear mandates."
  
  "Essentially, [agencies] argue[] that the balance of equities tilts in [their] favor because of the hardships an expedited production schedule would cause to [their] process, likely negatively effecting the processing of other requests, and because it would likely increase the risk of inadvertent disclosure of exempt records."  "Thus, whatever the balance of equities may have been at the time, [agencies have] now had ample time, by [their] own estimation, and the records request should be nearly complete."  "Any argument against [plaintiff's] requested injunctive relief based on the balance of equities is no longer availing."  "For these reasons, the Court GRANTS summary judgment for [plaintiff] due to [agencies'] failure to promptly produce requested records."  "As such, the Court ORDERS [agencies] to produce all remaining non-exempt public records responsive to the state's request within 21 days of the date of this Order."
   
• Litigation Considerations, Vaughn Index/Declaration:  "Specifically, [plaintiff] argues that the Agenc[ies] failed to produce [] Vaughn ind[ices], or the equivalent, with [their] initial productions."  "That said, the Court recognizes that the Agenc[ies] had produced only a fraction of the documents involved in this litigation at the time [plaintiff] filed its motion and does not intend to make exemption determinations on a piecemeal basis, as that would be extremely inefficient."  "Therefore, the Court DENIES as premature [plaintiff's] challenges to the Agenc[ies] exemption claims in its limited production set."  "However, the Court notes that 'counsel . . . did offer to prepare [] Vaughn ind[ices] as a potential way to try and resolve any disputed withholding following the completion of [Agencies'] FOIA productions.'"  Therefore, the court "ORDERS [agencies] to provide [plaintiff] with a complete and comprehensive Vaughn index within ten (10) days of completing its production (or within ten (10) days of the date of this order, if the production has already been completed)."