Case Detail

FOIA Project Annotation: Judge John Bates has ruled that the State Department should be granted an Open America stay to allow it to finish responding to seven requests filed by the Center for Public Integrity. The agency had already completed five of the requests and anticipated finishing the sixth in several weeks. To bolster its argument, the agency provided evidence that over the past several years it had taken action to reduce its backlog, but that its FOIA and Privacy Act requests had increased about 50 percent in the past two years, entitling the agency to claim "exceptional circumstances." While the Center agreed the agency had a backlog, it argued that the department had not shown reasonable progress in reducing its current backlog as required by the 1996 EFOIA amendments. Bates noted that "as a general matter, the Court agrees that to the extent an agency is unable to reduce its backlog due to an unpredictable increase in the number of FOIA requests, the 1996 amendments do not disqualify an agency from an Open America stay of proceedings. This is because the amendments link the requirement to demonstrate 'reasonable progress' to those cases where an agency claims exceptional circumstances based on 'predictable agency workload.' The legislative history contemplates that where an agency faces an 'unforeseen' increase in FOIA requests and the request for a stay is not based on a 'routine backlog,' a stay may be justified notwithstanding the lack of a reduction in the backlog." Saying that whether the State Department's situation was "exceptional" was a "close call," Bates sided with the agency, noting that "on the whole, weighing the increase in the number of FOIA requests for the two most recent fiscal years and also the unforeseen increase in [the information staff's] other information access duties, including the increase in Privacy Act requests, requests from Congress, and declassification review duties, the Court concludes that the increase in the workload was not 'predictable,' and thus, that the 'reasonable progress' requirement does not apply here." Bates agreed that it was reasonable to look at backlog reduction over a period of years, but he noted that "the problem with the Department's approach, however, is that it potentially allows the agency to claim 'reasonable progress' as long as its backlog remains below peak levels, giving the agency little incentive to avoid backsliding. It would be anomalous to incorporate a loophole into the reasonable process requirement that would create such a disincentive." He added, however, that "although the backlog has increased in the first five months of the current fiscal year, the Court finds that this increase is not, by itself, sufficient to negate the overall progress shown to date."
Issues: Delay - Backlog reduction activities, Delay - Exceptional circumstance

Date Filed	Doc #	Docket Text
2005-11-30	1	COMPLAINT against U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT (Filing fee $ 250) filed by CENTER FOR PUBLIC INTEGRITY.(lc, ) (Entered: 12/02/2005)
2005-11-30	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR PUBLIC INTEGRITY (lc, ) (Entered: 12/02/2005)
2005-11-30		SUMMONS (5) Issued as to U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 12/02/2005)
2005-12-20	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 12/5/2005., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. U.S. DEPARTMENT OF STATE served on 12/8/2005, answer due 12/30/2005; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 12/5/2005, answer due 12/30/2005; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT served on 12/5/2005, answer due 12/30/2005, SUMMONS Returned Executed by CENTER FOR PUBLIC INTEGRITY. U.S. DEPARTMENT OF STATE served on 12/8/2005, answer due 12/30/2005; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 12/5/2005, answer due 12/30/2005; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT served on 12/5/2005, answer due 12/30/2005. (Attachments: # 1 Exhibit Declaration (Service on US Atty)# 2 Exhibit Certified Mail to Def Dept of State# 3 Exhibit Certified Mail to Def Dept of HHS# 4 Exhibit Certified Mail to Def USAID# 5 Exhibit Certified Mail to Attorney General)(Smith, Peter) (Entered: 12/20/2005)
2006-01-06	4	NOTICE of Appearance by Amy E. Powell on behalf of all defendants (Powell, Amy) (Entered: 01/06/2006)
2006-01-11	5	Unopposed MOTION for Extension of Time to File Response/Reply by U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT. (Powell, Amy) (Entered: 01/11/2006)
2006-01-11		MINUTE ORDER: Upon consideration of 5 defendants' unopposed motion for enlargement of time beyond the December 30, 2005 deadline to respond to the complaint, it is hereby ORDERED nunc pro tunc that the motion is GRANTED; and it is further ORDERED that defendants' answer or other response to the complaint shall be filed by not later than January 31, 2006. Signed by Judge John D. Bates on 1/11/2006. (CK ) (Entered: 01/11/2006)
2006-01-11		Set/Reset Deadlines: Defendants' answer due by 1/31/2006. (CK ) (Entered: 01/11/2006)
2006-01-31	6	ANSWER to Complaint by U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT.(Powell, Amy) (Entered: 01/31/2006)
2006-02-02	7	SCHEDULING ORDER. Signed by Judge John D. Bates on 2/2/2006. (CK) (Entered: 02/02/2006)
2006-02-02		Set/Reset Deadlines: Proposed briefing schedule due by 2/22/2006. (CK) (Entered: 02/02/2006)
2006-02-22	8	Joint MOTION To Set a Briefing Schedule by U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT. (Powell, Amy) (Entered: 02/22/2006)
2006-02-22	9	ORDER granting 8 joint motion to set briefing schedule and dismissing Department of Health and Human Services as a defendant. See text of order for details. Signed by Judge John D. Bates on 2/22/2006. (CK ) (Entered: 02/22/2006)
2006-02-22		Set/Reset Deadlines: Defendant's motion for stay due by 3/14/2006. Plaintiff's response due by 3/24/2006. Defendant's reply due by 3/31/2006. (CK ) (Entered: 02/22/2006)
2006-02-24	10	MINUTE ORDER: Upon consideration of the parties' stipulation to the voluntary dismissal of defendant U.S. Agency for International Development 8 , it is hereby ORDERED that the U.S. Agency for International Development is DISMISSED. Signed by Judge John D. Bates on 2/24/2006. (CK ) (Entered: 02/24/2006)
2006-03-14	11	MOTION to Stay the Proceedings, or in the Alternative, for an Extension of Time by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Memorandum in Support of Motion for an Open America Stay, or in the Alternative, an Extension of Time# 2 Exhibit A - Declaration of Margaret G. Peppe# 3 Attachments 1-13 to Peppe Declaration# 4 Attachments 14-23 to Peppe Declaration# 5 Exhibit B - Al-Fayed v. CIA unreported slip opinion# 6 Text of Proposed Order)(Powell, Amy) (Entered: 03/14/2006)
2006-03-14	12	MOTION for Extension of Time to Process Plaintiff's FOIA request by U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES. (See docket entry #11 for document images). (lc, ) (Entered: 03/15/2006)
2006-03-25	13	Memorandum in opposition to re 11 Defendant's Motion for an Open America Stay filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Text of Proposed Order)(Smith, Peter) (Entered: 03/25/2006)
2006-03-31	14	REPLY to opposition to motion re 12 MOTION for Extension of Time to, 11 MOTION to Stay the Proceedings, or in the Alternative, for an Extension of Time filed by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 03/31/2006)
2006-04-24	15	MEMORANDUM OPINION. Signed by Judge John D. Bates on 4/24/2006. (CK) (Entered: 04/24/2006)
2006-04-24	16	ORDER granting 11 defendant's motion to stay proceedings until June 30, 2006 and requiring parties to file proposed briefing schedule by not later than July 14, 2006.Signed by Judge John D. Bates on 4/24/2006. (CK) (Entered: 04/24/2006)
2006-07-14	17	STATUS REPORT jointly filed, with proposed briefing schedule by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 07/14/2006)
2006-07-17	18	Scheduling Order, Signed by Judge John D. Bates on 6/14/06. (hs,) (Entered: 07/17/2006)
2006-07-27		Set/Reset Deadlines: Summary Judgment motions due by 9/22/2006. Response to Motion for Summary Judgment/Cross Motion for Summary Judgment due by 10/13/2006. Reply to Motion for Summary Judgment/Opposition to Cross Motion due by 11/3/2006. Reply due by 11/20/2006. (tb) (Entered: 07/27/2006)
2006-09-08	19	Joint MOTION to Stay Proceedings by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 09/08/2006)
2006-09-08		MINUTE ORDER: Upon consideration of 19 the parties' joint for a stay of proceedings, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that a status hearing is scheduled for October 11, 2006, at 9:00 a.m. in Courtroom 8. Signed by Judge John D. Bates on 9/8/2006. (CK) (Entered: 09/08/2006)
2006-10-10	20	STATUS REPORT , filed jointly by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 10/10/2006)
2006-10-10		MINUTE ORDER: Upon consideration of the joint status report submitted on this date, the parties' request for a further stay of proceedings, and the suggestion that the status hearing be cancelled, it is hereby ORDERED that the status hearing scheduled for October 11, 2006 at 9:00 a.m. remains in effect. Signed by Judge John D. Bates on 10/10/2006. (CK) (Entered: 10/10/2006)
2006-10-11		Minute Entry Status Conference held on 10/11/2006 before Judge John D. Bates : Stipulation of Settlement due by 10/25/2006. (Court Reporter Elaine Merchant.) (mm) (Entered: 10/11/2006)
2006-10-25	21	Joint MOTION for Extension of Time to File Stipulation by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 10/25/2006)
2006-10-26		MINUTE ORDER: Upon consideration of 21 the parties' joint motion for extension of time to file the stipulation of dismissal, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the stipulation shall be filed by not later than November 1, 2006. Signed by Judge John D. Bates on 10/26/2006. (CK) (Entered: 10/26/2006)
2006-11-01	22	STIPULATION of Dismissal filed jointly by U.S. DEPARTMENT OF STATE. (Powell, Amy) (Entered: 11/01/2006)
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