MIDDLE EAST FORUM v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY

Filing 28

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge G. Michael Harvey on 3/5/18. (lcgmh1) Modified event title on 3/6/2018 (znmw).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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MIDDLE EAST FORUM,
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)
Case No. 17-cv-0767 (RCL/GMH)
Plaintiff,
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v.
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)
U.S. DEPARTMENT OF HOMELAND )
SECURITY,
)
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Defendant.
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____________________________________)

MEMORANDUM OPINION AND ORDER
In this case, Plaintiff Middle East Forum seeks information from Defendant United States
Department of Homeland Security (“Defendant” or “DHS”) pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. The case was filed in April 2017, and Defendant
received several extensions of time to answer (with Plaintiff’s consent) while it searched for
documents responsive to Plaintiff’s requests. [Dkts. 8, 10, 12]. Beginning in August 2017,
however, Plaintiff began to oppose such extensions, noting that the parties had been unable to
agree on a timeline for production of documents. [Dkt. 15, ¶ 3; Dkt. 17, ¶ 3]. On December 20,
2017, the Honorable Royce C. Lamberth, United States District Judge, granted, nunc pro tunc,
Defendant’s September 2017 motion seeking an extension of time to answer until October 30,
2017, granted Plaintiff’s motion for a status conference, and referred the case to the undersigned
to “set a scheduling order . . . and give the government an opportunity to cure its current default
posture.” [Dkt. 21].
On January 25, 2018, the status conference was held. Defendant represented that its
searches had found over 27,000 potentially responsive documents, and proposed a schedule in

which it would review 500 documents per month to determine whether they were responsive or
subject to exemptions for disclosure. Minute Order dated Jan. 25, 2018. Plaintiff objected and
sought a schedule requiring Defendant to review at least 1,000 documents per month. Id. Plaintiff
further agreed to meet with Defendant to attempt to narrow the range of potentially responsive
documents. Id. The Court ordered a status update on the meet and confer process, written
submissions on the proposed review schedule, extended the time for Defendant to respond, nunc
pro tunc, to January 25, 2018, and with consent of Plaintiff, stayed Defendant’s obligation to
respond to the Complaint until “completion of its production of documents in this case, the
production schedule for which will be set . . . after review of the [ordered] filings.” Id.
On February 16, the parties reported that, pursuant to an agreement, the universe of
potentially responsive documents had been narrowed to approximately 3,400, and Defendant
anticipated that it would begin reviewing and processing those prioritized records beginning in
March 2018. [Dkt. 25]. Defendant also submitted a declaration from James V.L.M. Holzer, the
deputy chief FOIA Officer for the DHS Privacy Office (“DHS Privacy”)—which is responsible
for processing the requests at issue here—explaining the agency’s staffing and workload.1
According to Mr. Holzer, DHS Privacy has a FOIA staff of approximately 15 individuals
(including management personnel), and was responsible for almost 3,000 FOIA requests between
2013 and 2016, approximately 1,200 of which were complex requests. [Dkt. 26-1, ¶¶ 9–11]. In
2017, DHS Privacy received approximately 1,350 FOIA requests (representing an 87% increase
from the yearly average for the previous four years and a 125% increase from 2016 alone), 791 of

1
In addition to processing the FOIA requests it receives itself, DHS Privacy processes FOIA requests directed to
DHS’ Office of the Secretary, Office of the Citizenship and Immigration Services Ombudsman, Office for Civil Rights
and Civil Liberties, Office of the Executive Secretary, DHS Management Directorate, Countering Weapons of Mass
Destruction Office, Office of the General Counsel, Office of Legislative Affairs, Office of Public Affairs, Office of
Operations Coordination, and Office of Policy. [Dkt. 26-1, ¶ 7].

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which were complex (representing a 164% increase from the yearly average for the previous four
years). Id., ¶ 11. There are currently 464 backlogged cases. Id. The office has also experienced
a 65% increase in FOIA-related litigation since 2016. Id., ¶ 13. Mr. Holzer asserts that the office
is subject to court orders in three cases that collectively require [it] to process at
least 2,500 pages per month, and anticipates that court orders may be issued in one
or more other pending cases. In addition [the agency] has been processing
approximately 3,000 additional pages per month for other cases that are in litigation
but for which the court has not ordered [it] to process a minimum number of pages
per month.
Id., ¶ 13. Processing 1,000 pages per month on Plaintiff’s requests would require DHS Privacy to
reallocate resources from other FOIA requests, some of which were received prior to Plaintiff’s,
and to corral additional personnel. Id., ¶¶ 17, 19–20. Even this might not substantially increase
processing capacity given that such processing requires knowledge of the relevant law and DHS’
organization and activities, and new staff would be inexpert. Id. Mr. Holzer is also concerned that
processing documents at a 1,000-per-month clip would not allow “adequate time to conduct intraagency and inter-agency reviews that [he] expect[s] will be necessary.” Id., ¶ 18.
Plaintiff responds that courts “regularly impose a production schedule greater than 500
pages per month upon the government in FOIA cases.” [Dkt. 27 at 2]. Citing a case from the
Northern District of Illinois, Plaintiff further contends that the Court should not take into account
the effect that ordering DHS Privacy to process more than 500 pages per month will have on other
FOIA requests because “the Court can only focus on the fairness of [the agency’s] treatment of
plaintiff, who made a proper and valid request for documents under the FOIA statute.” Id. at 3
(emphasis omitted) (quoting Transcript of Proceedings at 5, Boundaoui v. FBI, No. 17 C 4782
(N.D. Ill., filed Oct. 2, 2017)). Plaintiff seeks to avoid a “long delay” in receiving its documents,
and suggests that Mr. Holzer’s affidavit is not credible. Id. at 3–4.

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Plaintiff’s position fails to take into account two long-standing principles that apply to
FOIA cases in this Circuit. First, since 1976 at the latest, courts in this Circuit have considered
the effect of other FOIA requests when analyzing the burden on an agency of meeting deadlines
for review and production of FOIA material in a given case. See, e.g., Open America v. Watergate
Special Prosecution Force, 547 F.2d 605, 612, 614 (D.C. Cir. 1976) (noting that “team to which
Open America’s request has been assigned is in various stages of processing 33 other projects, all
of which were received prior to Open America’s request,” and that agency at issue had been
“deluged with a volume of requests for information vastly in excess of that anticipated by
Congress, when the existing resources are inadequate to deal with the volume of requests within
the [statutory] time limits”); see also, e.g., Energy Future Coalition v. Office of Mgmt. & Budget,
200 F. Supp. 3d 154, 161 (D.D.C. 2016) (rejecting plaintiff’s motion to mandate review of 1,000
documents per month, and taking into account increase in number of FOIA requests directed to
agency, number of FOIA requests under review, and number of FOIA litigations in which agency
involved); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 47 (D.D.C. 2014)
(denying plaintiff’s motion for preliminary injunction requesting immediate production of
documents pursuant to FOIA request and weighing effect injunction would have on other FOIA
requesters); cf. Nat’l Sec. Counselors v. U.S. Dep’t of Justice, 848 F.3d 467, 471–72 (D.C. Cir.
2017) (in context of challenge to FOIA processing fees, stating policy of processing 500 pages per
request per month “serves to promote efficient responses to a larger number of requesters”).
Moreover, “[a]gency affidavits are accorded a presumption of good faith, which cannot be
rebutted by purely speculative claims.” Energy Future Coalition, 200 F. Supp. 3d at 159 (quoting
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Plaintiff has presented no
evidence to undermine Mr. Holzer’s declaration. Rather, it cites scattered cases from various

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jurisdictions in which courts have entered orders requiring agencies to process more than 500
pages per month and a couple of articles stating that review for the purposes of discovery in a civil
action can progress significantly faster. [Dkt. 27 at 2–4]. Moreover, none of the cases concern
FOIA requests for which DHS Privacy is responsible—they relate to Immigration and Customs
Enforcement, the Department of Energy, the Department of Health and Human Services, and the
FBA—and Plaintiff has made no attempt to show that the processing capabilities of those agencies
are analogous to that of DHS Privacy. [Dkt. 27 at 2; Dkt. 26-1, ¶ 7]. The articles, as noted, concern
document review in the context of conventional civil litigation and do not address reviewing and
processing documents pursuant to FOIA [Dkt. 27 at 3–4], which “is distinct from civil discovery,”
with “different considerations determin[ing] the outcome of efforts to obtain disclosure,” Stonehill
v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009).
To be sure, “a court . . . may use its equitable powers to require the agency to process
documents according to a court-imposed deadline,” Clemente v. FBI, 71 F. Supp. 3d 262, 269
(D.D.C. 2014), but Plaintiff has not shown here that Defendant can or should process documents
at a rate faster than 500 per month. For example, it has not asserted that it is entitled to expedited
processing under FOIA or its implementing regulations, which can be available when a requester
establishes (1) an imminent threat to the life or physical safety of an individual, (2) an “urgency to
inform the public about an actual or alleged federal government activity,” (3) a threatened loss of
substantial due process rights, or (4) “[a] matter of widespread and exceptional media interest in
which there exist possible questions about the government’s integrity which affect public
confidence.”2 6 C.F.R. 5.5(e)(1). Nor has it claimed—other than in vague and generalized
statements that the material “is of significant importance to the debates of the day” and of “time                                                            
2

Expedited processing requires submission of a special request, along with “a statement, certified to be true and
correct, explaining in detail the basis for making the request for expedited processing.” 6 C.F.R. § 5.5(e)(2)–(3).

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sensitive importance” to debates over appropriations—that accelerated processing is necessary.
Cf., e.g., Clemente, 71 F. Supp. 3d at 268–69 (ordering FBI to process 5,000 pages per month
where requests involved serious allegations of widespread corruption in law enforcement,
requester represented in litigation individuals who were victims of allegedly corrupt FBI agent,
and requester provided medical records showing she had terminal illness); cf. also, e.g., Seavey v.
Dep’t of Justice, 266 F. Supp. 3d 241, 247–48 (D.D.C. 2017) (ordering FBI to process 2,850 pages
per month where request culled over 100,000 potentially responsive documents and agency
administratively treated request as 372 distinct requests by assigning 372 different tracking
numbers, but considered request as singular for purposes of 500-page-per-month rate of review).
At Defendant’s proposed rate of 500 pages per month, the current universe of prioritized
material will be processed in approximately seven months, rather than the three-and-one-half
months Plaintiff urges. On this record, 500 pages per month is an appropriate rate of production.3
This opinion should not be read to imply that Plaintiff’s requests are insignificant or unimportant,
or that a more robust schedule should not be ordered in a suitable case. Here, however, Plaintiff
has not provided reasons that its requests should take precedence over the duly-made FOIA
requests of others.

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In a number of recent cases in this District, a production rate of 500 pages per month has been approved. For
example, in Judicial Watch v. Dep’t of Justice, No. 16-cv-2046, the Honorable Tanya S. Chutkan approved such a
rate over the plaintiff’s objection. Compare Joint Status Report, ¶ 5, Judicial Watch v. Dep’t of Justice, No. 16-cv2046 (D.D.C. Jan. 6, 2017), with Joint Status Report at 1–2, Judicial Watch v. Dep’t of Justice, No. 16-cv-2046
(D.D.C. Apr. 17, 2017), and Minute Order, Judicial Watch v. Dep’t of Justice, No. 16-cv-2046 (D.D.C. Apr. 19, 2017).
The Honorable James E. Boasberg has similarly approved a “500 page-per-month pace.” Republican Nat’l Comm. v.
U.S. Dep’t of State, No 16-cv-486, 2016 WL 9244625, at *1 (D.D.C. Sept. 16, 2016). The Honorable Colleen KollarKotelly did so twice in Energy Future Coalition v. Office of Mgmt. & Budget. See Energy Future Coalition, 201 F.
Supp. 3d 55, 59–60 (D.D.C. 2016) (“OMB shall continue to review 500 documents per month with respect to
Plaintiffs’ request, in accordance with the Order issued on July 25, 2016.”).

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It is therefore
ORDERED that Defendant shall process records responsive to Plaintiff’s FOIA requests
at a rate of at least 500 pages per month; it is further
ORDERED that Defendant shall make its first production under this Order no later than
March 30, 2018; it is further
ORDERED that Defendant shall produce responsive documents on a rolling basis every
thirty days until production is complete; it is further
ORDERED that the parties shall file a joint status update on March 30, 2018, and every
thirty days thereafter until production is complete or the Court orders otherwise.
SO ORDERED.

Date: March 5, 2018

Digitally signed by
G. Michael Harvey
Date: 2018.03.05
12:43:11 -05'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE

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