Citizens United vs. State Dept

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS UNITED,

) ) ) )

Plaintiff, v.

) ) UNITED STATES DEPARTMENT ) OF STATE, ) ) Defendant. )  ____________________________________)  _________________________ ___________)

Civil Action No. 1:15-cv-374 (EGS)

JOINT STATUS REPORT

Pursuant to the Court’s Order of April 20, 2015, Plaintiff Citizens United and Defendant United States Department of State (“DOS” or “Department”) “Dep artment”) jointly submit the following Joint Status Report, and state as follows: 1. 

This matter arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, as amended. It concerns four FOIA FOIA requests made by Citizens United United between May 15, 2014 and July 29, 2014 201 4 for specifically identified records of correspondence between three identified State Department officials and outside entities. 2. 

In its April 20, 2015 Order, the Court ordered DOS and Citizens United to file, by

May 4, 2015, a joint status report to include any agreed upo upon n recommendations for further  proceedings and a proposed briefing schedule. 3. 

 Notwithstanding their efforts to confer in good faith, the parties have been unable

to reach agreement on a timetable for for production of non-exempt, responsive recor records. ds. As such, each party has submitted an individual recommendation for how to proceed. 4. 

Defendant’s Proposal: Proposal: At this time, DOS is not in a position to provide a

definitive timeline for further proceedings or a proposed briefing schedule and respectfully

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 2 of 6

requests permission to provide the Court with an estimated e stimated production schedule no later than June 30, 2015. This time is necessary in order for the the Department to compile the infor information mation required to provide Plaintiff and this Court with a good faith estimate of the time that will be required to process Plaintiff’s Plaintiff’s request.  request. 5. 

The Department’s need for additional time is reasonable and appropriate in light

of the tremendous workload of FOIA matters that the Department is currently handling. Defendant received approximately 19,000 FOIA requests last year and, as of March 2015, has experienced more than a 93% increase in the number of FOIA lawsuits compared to the same time period last fiscal fiscal year. Moreover, the FOIA lawsuits filed against Defendant have grown increasingly burdensome and complex. This surge in the number of FOIA lawsuits has necessitated the realignment of resources to meet court-imposed deadlines associated with litigation. These exceptional circumstances are compounded by the ffact act that a significant portion of Defendant’s Defendant’s FOIA-processing resources are currently devoted to reviewing for public release the complete collection of emails that were recently provided p rovided to the Department by former Secretary Clinton, consistent with the FOIA, and to making those documents available to the  public by posting them on a Department website. Indeed, contrary to Plaintiff’s contention, these circumstances constitute precisely the sort of extraordinary event which falls outside of  predictable agency workload demands and justifies the granting of additional time. The aggregate volume of FOIA work at the Department directly impacts the availability and allocation of resources to requests in litigation. 6. 

With finite resources and an extremely high FOIA workload, the Department

strives to adhere to and comply compl y with the FOIA’s statutory and regulatory requirements for responsiveness and processing times times to the maximum extent possible. This requires a care careful ful

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 3 of 6

 balancing of resources and priorities among both litigation and administrative requests, because the same reviewers who are working to comply with numerous existing FOIA litigation deadlines, including those which will attend a production schedule in this case, simultaneously handle a constantly high volume of administrative administrative requests. As of today, the Department is involved as a defendant in approximately 79 pending FOIA FOIA lawsuits nationwide. A number of these cases involve large volumes of records and will continue to require that the Department devote significant resources in order to comply with federal district court orders or agreed-upon, a greed-upon, court-entered deadlines. The Department of State, like all agencies, adheres to a firs first-in, t-in, first-out system of processing various FOIA requests. Every time an institutional rrequester equester sues to get a court order for faster processing, it jumps the queue and disadvantages all those requesters without the means to file suit who are waiting for their requests to be processed. 7. 

Plaintiff’s request Plaintiff’s  request is still in the FOIA queue, and therefore the Department does

not yet know how many man y documents will be responsive, and therefore how long it will take to  process those records.  Consequently, Defendant needs additional time to gather the information necessary to formulate a timeline timeline for further proceedings in this matter. In light of the extraordinarily high level of demand on Defendant’s D efendant’s resources, the Department respectfully requests that it be permitted to provide the Court Cou rt with an estimated production schedule no later than June 30, 2015. 8. 

With respect to Plaintiff’s proposal, proposal , the Department notes that the FOIA does not

require that agencies produce responsive documents docume nts within twenty working days of a FOIA request; rather, the FOIA requires that an agency agenc y make a determination of whether  it  it will  produce documents within twenty days. See Citizens for Responsibility and Ethics in Washington v. Fed. Election Fed. Election Com’n, Com’n, 711 F.3d 180, 182 (D.C. Cir. 2013) 2013).. The remedy for non-

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 4 of 6

compliance with the twenty day deadline for making a final determination is filing suit in district court, which Plaintiff has done. In addition, the Department notes that contrary to Plaintiff’s  proposed schedule, Vaughn Declarations need not be provided in advance of the Department’s summary judgment motion. See, e.g., e.g., Pinson v. U.S. Dep’t of Justice, Justice, 2013 WL 5423107, **8 (D.D.C. Sept. 30, 2013) (citing Schoenman v. F.B.I., F.B.I., 604 F. Supp. 2d 174, 178 (D.D.C. 2009)). 9. 

Plaintiff’s Proposal: Proposal: Citizens United proposes that the Court establish concrete

deadlines of the production of documents and the filing of di dispositive spositive motions. FOIA sets out statutory deadlines that administrative administrative agencies must follow. This case is before the Court  because DOS has failed to produce documents in a timely manner. Citizens United’s four FOIA requests are narrowly tailored to include communications made by three DOS employees. Citizens United has further limited those requests to a specific subset of communications co mmunications which involve identified third party organizations and individuals. DOS has already had more tthan han eight months since receipt of these FOIA requests to locate and disclose responsive documents. Under FOIA, DOS was supposed to have ha ve produced responsive records within twenty working days of receipt of the FOIA request. See See 5  5 U.S.C. § 552(a)(6)(A)(i). If there were unusual circumstances warranting additional time for producing records, DOS could have availed itself of an automatic ten day extension of time, see time, see 5  5 U.S.C. § 552(a)(6)(B)(i), but it failed to do so. DOS has not shown any an y “exceptional circumstances” that would warrant the court granting the agency any additional time to complete its its review of the records records.. The contention that DOS has  been operating under an increased workload of pending FOIA requests is insufficient grounds for granting the agency additional time. In fact FOIA FOIA specifically excludes “predictable agency workload of [FOIA] requests” requests” from the term “exceptional circumstances” that would justify the court granting the agency additional time. See See 5  5 U.S.C. § 552(a)(6)(C)(ii). 552(a)(6)(C)(ii). It is customary in

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 5 of 6

FOIA cases to set deadlines for records production and dispositive motions in briefing schedules. Therefore Citizens United proposes that the Court set the following deadlines deadlin es in this matter: a.

DOS to make a full and complete production of records and a Vaughn

Index by June 4, 2015,  b.

DOS to file its Motion for Summary Judgment by July 6, 2015,

c.

Citizens United to file its Opposition and Cross-Motion for Summary

Judgment by August 5, 2015, d.

DOS to file its Reply and Opposition by September 4, 2015, and

e.

Citizens United to file its Reply by September 21, 2015.

10. Citizens United anticipates that that once DOS completes its product production ion of responsive records the issues remaining for resolution will be: (a) the sufficiency of the DOS search, (b) the appropriateness of any withholdings made by b y DOS pursuant to FOIA’s statutory exemptions, and (c) Citizens United’s United’s entitlement, if any, to litigation costs, including attorneys’ fees.  fees.   11.

In light of the parties’ disagreement reflected in paragraphs 4 through 10, two

 proposed orders are attached hereto. Dated: May 4, 2015

Respectfully submitted, CITIZENS UNITED  _/s/ R. Christian Berg_ Ralph Christian Berg D.C. Bar No. 496321 [email protected] 1006 Pennsylvania Avenue, S.E. Washington, DC 20003 (202) 547-5420  Attorney for Plaintiff BENJAMIN C. MIZER   Principal Deputy Assistant Attorney General

 

Case 1:15-cv-00374-EGS Document 5 Filed 05/04/15 Page 6 of 6

  ELIZABETH J. SHAPIRO Deputy Director  /s/ Caroline Anderson CAROLINE J. ANDERSON Trial Attorney U.S. Department of Justice, Civil Division 20 Massachusetts Avenue NW, Room 7305 Washington, D.C. 20530 Tel: (202) 305-8645 Fax: (202) 616-8470 [email protected] Counsel for Defendant