UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAILY CALLER NEWS FOUNDATION, Plaintiff, v. Civil Action No. 18-1833 (CKK) FEDERAL BUREAU OF INVESTIGATION, Defendant.

MEMORANDUM OPINION (June 7, 2019)

Plaintiff Daily Caller News Foundation (“DCNF”) filed suit on August 6, 2018, against

Defendant, the Federal Bureau of Investigation (“FBI”), pursuant to the Freedom of Information

Act (‘FOIA”), 5 US.C. § 552, seeking access to records withheld by Defendant FBI. “relating to

FBI Special Government Employee (“SGE”) Daniel Richman, including FBI communications

with and about him, as well as his relationship with former FBI Director James Comey.” Compl.,

ECF No. 1, at ¶¶ 1-2. Plaintiff alleges that the FBI has failed to comply with the statutory

deadlines to respond to Plaintiff’s FOIA request.

Presently before the Court are Defendant’s [14] Motion for an Open America Stay and

Memorandum in Support thereof (“Def.’s Mot.”), Defendant’s [14-1] Declaration of David M.

Hardy (“Hardy Decl.”); Plaintiff’s [15] Opposition to Defendant’s Motion (“Pl.’s Opp’n”),

Plaintiff’s [15-1] Declaration of Eric R. Bolinder (“Bolinder Decl.”) and the exhibits thereto; and

Defendant’s [19] Reply to Plaintiff’s Opposition (“Def.’s Reply”). Upon consideration of the

pleadings, the relevant legal authorities, and the record as a whole, 1 the Court shall DENY

1 In connection with this Motion, the Court also considered the Plaintiff’s Complaint, ECF No. 1; the Defendant’s Answer, ECF No. 11; and the Joint Status Report, ECF No. 13. David M. Hardy 1 Defendant’s [14] Motion for an Open America Stay.

I. BACKGROUND

According to the Complaint, DCNF is “a 501(c)(3) non-profit organization that provides

original investigative reporting from a team of professional reporters who operate for the public

benefit” and provide content that is “available without charge to any eligible news publisher

that can provide a large audience.” Compl., ECF No. [1], at ¶ 6. On April 25, 2018, DCNF

submitted an online FOIA request to the FBI seeking access to “all records, documents, and

communications pertaining to Daniel Richman, a Special Government Employee hired by

former Director James Comey.” Compl, ECF No. 1, at ¶ 8 ; Ex. 1, ECF No. 1-1 (FOIA

Request).

By letter dated May 7, 2018, the FBI acknowledged receipt of DCNF’s FOIA request,

but it did not provide an estimated date of completion or otherwise indicate that the request was

being processed. Compl., ECF No. 1, at ¶ 14. Plaintiff filed suit on August 6, 2018. The

Complaint alleges, and the FBI does not dispute, that the FBI failed to make any determination

regarding DCNF’s FOIA request within the twenty-day deadline set by the FOIA. See Compl.,

ECF No. 1, at 3-4; Def.’s Answer, ECF No. 11, at 4.

By letter dated September 17, 2018, the FBI advised Plaintiff that its request to expedite

processing had been denied and further, that the FBI had located approximately 11,000 pages

of potentially responsive records. Hardy Decl., ECF No. 14-1, at ¶10. In an effort to accelerate

the processing of the request by moving it into a small processing queue, the FBI offered DCNF

an opportunity to reduce the scope of its request. Id. On October 24, 2018, DCNF narrowed

is the Section Chief of the FBI Record/Information Dissemination Section (“RIDS”, Information Management Division. Eric R. Bolinder is counsel for Cause of Action Institute, and he represents the Plaintiff in this matter. 2 the scope of its request as follows: “All final work product (i.e., memoranda) sent by Daniel

Richman to Director Comey or anyone else at the FBI, and all draft versions of any of this work

product can be excluded from processing. All other responsive records, such as

emails/communications, would still be included as responsive.” Hardy Decl., ECF No. 14-1, at

¶ 4. With respect to the narrowed request, the FBI has identified approximately 7,000 pages of

potentially responsive records. Id.

Upon the filing of the FBI’s Answer, the Court ordered the parties to confer and propose

a schedule for proceeding in this matter. See Order (Oct. 15, 2018), ECF No. 12. Pursuant to

that Order, the parties filed a Joint Status Report, whereby the FBI proposed that “due to

workload and litigation constraints, it intend[ed] to file a motion for an Open America stay,”

and the parties set out two variations of a briefing schedule. Jt. Status Rpt., ECF No. 13, at 2-

3. The Court set a briefing schedule, and Defendant filed its Motion for an Open America Stay,

requesting a stay of proceedings until December 2020. Defendant’s Motion is ripe for

resolution by this Court.

II. LEGAL STANDARD

The Freedom of Information Act,

(a)(6)(A), provides in relevant part

that upon receipt of a FOIA request, the responding agency must:

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of (l) such determination and the reasons therefor, . . . [and] (lll) in the case of an adverse determination (aa) the right of such person to appeal to the head of the agency.

(a)(6)(A)(i). Section 552(a)(6)(C)(i) provides that if a requesting party files suit

following the responding agency’s failure to comply with the statutory deadlines, “[i]f the

Government can show exceptional circumstances exist and that the agency is exercising due

3 diligence in responding to the request, the court may retain jurisdiction and allow the agency

additional time to complete its review of the records.” In Open America v. Watergate Special

Prosecution Force,

(D.C. Cir. 1976), the D.C. Circuit found that an agency is

entitled to additional time under this “exceptional circumstances” provision when the

agency:

is 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 such requests within the time limits of subsection (6)(A), and when the agency can show that it “is exercising due diligence” in processing the requests.

at 616 (quoting

(a)(6)(C)).

Congress subsequently amended the Freedom of Information Act to include two

additional factors for the Court to consider in analyzing whether exceptional circumstances

exist in a particular case:

[T]he 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. Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) ... after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.

(a)(6)(C)(ii)-(iii). The legislative history of these amendments indicates

that Congress intended the amendments to be “consistent with the holding in Open America,”

and merely sought to “clarify that routine, predictable agency backlogs for FOIA requests do

not constitute exceptional circumstances.” H.R. Rep. 104–795 at 24 (1996), reprinted in 1996

U.S.C.C.A.N. 3448, 3467. See Elec. Privacy Info. Ctr., 933 F. Supp. 2d at 46 (Kollar-Kotelly,

J.) (“’[R]outine, predictable agency backlogs for FOIA requests do not constitute exceptional

circumstances.’”) (citing H.R. Rep. 104-795 at 24 (1996)).

4 Accordingly, it is not sufficient that an agency receives a high number of FOIA requests

or has a large backlog of requests to which it must respond. Instead, an agency must show that

the number of requests received in the relevant period was truly unforeseen and remarkable.

See Leadership Conference on Civil Rights v. Gonzales,

, 259 n.4 (D.D.C.

2005) (“[a]n agency must show more than a great number of requests to establish [ ] exceptional

circumstances under the FOIA”).

Courts have routinely held that in addition to the issues outlined in the statute, other

circumstances are relevant considerations when faced with a request for an Open America stay,

including “an agency’s efforts to reduce the number of pending requests, the amount of

classified material, [and] the size and complexity of other requests processed by the agency.”

Elec. Frontier Found. v. Dep’t of Justice,

(D.D.C. 2007) (Kollar-

Kotelly, J.) “[W]here an agency is making good faith efforts and exercising due diligence in

processing requests on a first-in, first-out basis, a stay of proceedings is authorized so long as

the agency also demonstrates ‘reasonable progress in reducing its backlog of pending

requests.’” Ctr. for Pub. Integrity v. Dep’t of State, Civ. Action No. 05-2313,

, at *2 (D.D.C. Apr. 24, 2006) (citing Appleton v. FDA,

, 9-10 & n.4

(D.D.C. 2003); Wilderness Soc’y v. Dep’t of the Interior, No. Civ. A. 04-0650,

, at *6 (D.D.C. Sept. 12, 2005) (Kollar-Kotelly, J.)).

When considering a request for an Open America stay, “[a]gency affidavits are accorded

a presumption of good faith, which cannot be rebutted by purely speculative claims.” SafeCard

Services, Inc. v. Securities and Exchange Commission,

(D.C. Cir. 1991)

(internal quotation marks and citation omitted); see also Gov’t Accountability Project v. U.S.

Dep’t of Health & Human Servs.,

(D.D.C. 2008) (Kollar-Kotelly, J.)

5 (same); Nat’l Sec. Archive v. U.S. Securities and Exchange Commission,

(D.D.C. 2011) (quoting Elec. Frontier Found. v. DOJ,

(D.D.C. 2007)).

III. ANALYSIS

The Freedom of Information Act requires the FBI to make two showings before the

Court may grant a stay of the proceedings: (1) that exceptional circumstances exist, and (2) that

the FBI is “exercising due diligence” in responding to DCNF’s request.

(a)(6)(C)(i).

The FBI argues that it satisfies both of these prongs and asks the Court to stay this matter

“until December 25, 2020, at which time the FBI will begin processing Plaintiff’s FOIA request

at a rate of 500 reviewed pages per month.” Def.’s Mot., ECF No. 14, at 10. Under the FBI’s

proposal, processing of the 7,000 documents would be completed at the end of February 2022.

In support of its motion requesting a stay, the FBI submits a declaration from David Hardy, the

Section Chief at the FBI’s Record/Information Dissemination Section, Information

Management Division. See generally Hardy Decl., ECF No. 14-1.

A. Do Exceptional Circumstances Exist?

1. The Number of Requests Received over Time

Defendant relies on the Hardy Declaration to provide additional details in support of the

argument that exceptional circumstances exist. The FBI contends that since 2015, it has faced

a “spike in [the number of FOIPA] requests submitted to the agency,” resulting in a growing

backlog in the processing of such requests. Hardy Decl., ECF No. 14-1, at ¶ 12. The FBI points

to statistical analysis showing that in fiscal years (“FY”) 2011-2015, the FBI received an

average of approximately 19,400 requests, but starting in FY 2016, the number of requests grew

6 18 percent, and in FY 2017, “the growth trend increased at an even more accelerated pace” with

an increase of 23 percent over FY 2016, and a subsequent 18 percent rise in FY 2018. Hardy

Decl. at ¶ 12.

As a preliminary matter, Plaintiff points out that the FBI relies on a declaration that

“limits its discussion to only those requests received by the FBI from FY 2014 to the present”

and “lumps together both FOIA and Privacy Act requests.” Pl.’s Opp’n, ECF No. 15, at 5.

Plaintiff disputes the FBI’s claims about its unexpected increase in FOIA claims, noting that

“[t]he ‘recent surge’ in FOIA requests the FBI alleges to have experienced represents the normal

and expected increase following the election and inauguration of a new president and the start

of a new administration.” Pl.’s Opp’n, ECF No. 15, at 3. In contrast, the chart attached by

Plaintiff, which runs from 2005-2017, gives a more global picture of the total number of FOIA

requests, the number processed and the backlog, and it shows that “the FBI has received fewer

FOIA requests during the first two years of the Trump election and Administration than it did

under the first two years of the Obama election and Administration,” and further, that the

“backlog of FOIA requests has only gotten worse.” Pl.’s Opp’n , ECF No. 15, at 3; see Pl.’s

Opp’n at 6 (Table); Bolinder Decl., ECF 15-1, at ¶ 3.

Comparing the requests during the first year of the Obama Administration versus during

the first year of the Trump Administration, Plaintiff explains that in the 2008 election year, the

FBI received the highest number of requests received in the past decade — 17,241 — which

was also 4,732 more than it received the previous year. Pl.’s Opp’n, ECF No. 15, at 5. In

contrast, in the 2016 election year, the FBI “received 15,202 requests,” which was “2,039 fewer

than 2008 and only 2,271 more than the previous year.”

Plaintiff notes further that in 2009,

“the FBI received 15,664 FOIA requests, which was over 600 more than the 15,042 received in

7 2017.”

Plaintiff disputes the “FBI[‘s] claim[ ] that ‘[i]nstead of experiencing the peaks and

valleys of incoming requests within a relatively predictable range of annual requests, recent

figures demonstrate the FBI’s annual volume of requests has broken out to new levels not

sustainable with existent resources and technology.’” Pl.’s Opp’n at 6, citing Hardy Decl. at ¶

21. Plaintiff claims that this contention is “belied by the fact that the FBI processed an average

of 15,859 requests in 2008-2010, which exceeds the total number of requests received in each

of the years since then,” and furthermore, the historical data over the last thirteen years (provided

by Plaintiff) shows that the FBI processed “roughly the same number of requests as it received”

and “worked to make up the difference” in years where it received more requests, comparing

the period 2012-2013 with 2014-2015. Pl.’s Opp’n, ECF No. 15, at 6 (Table), at 7 (Chart);

Bolinder Decl. at ¶ 4.

The Court finds that the statistical evidence presented by the parties supports a finding

of no exceptional circumstances. While the number of FOIA requests received by the FBI

increased from 2015 to 2016, from 12,931 to 15,202, the number held steady at around 15,100

from 2016 to 2017, and this was not as high as the number of requests received during the 2008-

2009 time frame, which ranged between 15,664 and 17,241 requests. The statistical evidence

cited by the Defendant shows a steady increase in FOIPA requests (about 20 percent annually)

from 2016-2018. Accordingly, the increase in the amount of FOIA requests cannot be said to

be unforeseen or remarkable.

2. Complexity of the Requests

The FBI claims that FOIA requests have “grown significantly more complex” because

they “contain numerous and/or multi-faceted subject and often require much more coordination

8 with external and internal stakeholders to ensure the FBI makes appropriate disclosure

decisions.” Hardy Decl., ECF No. 13-1, at ¶ 13. Moreover, because FBI records “increasingly

contain OGA [other government agency] information equities” —in response to information-

sharing arising after September 11, 2001 — the FBI is required to seek the OGA’s redaction

determination prior to release of information.

. Additionally, because the FOIPA

requests received are “more sophisticated,” the FBI must “seek guidance from FBI personnel .

. . with the subject matter expertise needed to make informed, appropriate disclosure decisions.”

. Likewise, because of the shift from paper and physical records, the FBI “has been

forced to also dedicate more of its finite resources on developing its workforce’s capability and

expertise to process an increasing number of audio and video records.”

.

Plaintiff counters the FBI’s claims that requests have grown more complex over the last

several years by pointing out that “the agency does not provide a date range for this so-called

increase in complexity or any evidence, beyond the bald statement, to support the contention.”

Pl.’s Opp’n, ECF No. 15, at 7. Instead, the Hardy Declaration “list[s] the usual requirements

for the processing of FOIA requests that all agencies face: reviewing each document for

redactions and consulting with internal stakeholders” where such activities area “the basic

elements of processing any FOIA request.” Id.; see Elec. Privacy Info. Ctr., 933 F. Supp. 2d at

48 (Kollar-Kotelly, J.) (finding “insufficient evidence in the record to draw any concrete and

meaningful conclusions as to the composition of the [FBI’s] workload today in comparison to

years past, at least in terms of complexity.”) (internal quotation marks and citation omitted); see

also Clemente, 71 F. Supp. 3d at 267 (same). In both Elec. Priv. Info. Ctr. and Clemente, the

courts found that the FBI could not satisfy the exceptional circumstances test applicable to a

request for an Open America stay and had not adequately reduced the backlog of outstanding

9 FOIA requests.

Plaintiff sheds doubt similarly on the FBI’s claim that it is overly burdened by the need

for greater “inter-agency information sharing” resulting from the September 11, 2001 terrorist

attacks. Pl.’s Opp’n, ECF No. 15, at 8. Plaintiff surmises that ‘[t]he FBI must long ago have

adapted to the policy and technology reforms that followed 9/11 and can no longer plead that

excuse to avoid transparency almost two decades later” nor has the FBI claimed that the request

at issue here “implicates national security interests or would require extra-sensitive review of

inter-agency consultation.” Id. Furthermore, Plaintiff notes that “the FBI[’s] claim[ ] that

advances in technology have made FOIA request more difficult to process, not less” is not

backed by any supporting evidence that such changes are “anything other than the natural

evolution . . . from paper to digital recordkeeping.” Id. Moreover, there is no explanation why

the FBI could “handle the higher volume of requests in the Obama years, but now finds itself

unable to do so . . . ” particularly when the staffing has increased from 187 employees

processing 17,717 FOIA requests in 2008 to 252 employees processing 15,611 requests in 2017.

Pl.’s Opp’n, ECF No. 15, at 8-9. Plaintiff notes that the FBI increased its staffing between 2008-

2012, but then as the new election cycle approached, it “appears the FBI has decided to cut the

number of employees, rather than staff up.” Pl.’s Opp’n, ECF No. 15, at 9 (Table).

The Court finds that overall, the number of requests the FBI receives on an annual basis

has decreased since it peaked in 2008. While the FBI claims that the requests now being

processed are more complex and further, that technological advances have made it more difficult

to complete the processing, the FBI provides no evidence to support these claims other than

anecdotal evidence, and accordingly, there is not enough information from which the Court

could conclude that the overall complexity of the FBI’s workload has increased over time or

10 that technological advances have slowed the process.

3. Pending FOIA Litigation

The FBI contends that, “over the last five years the number of pending FOIPA litigations

has unpredictably increased to all-time program highs, from 160 in FY 2014 to 292 in 2018.”

Hardy Decl., ECF No. 14-1, at ¶¶ 18-21. The FBI notes that “FOIPA litigation draws upon a

disproportionate share of the agency’s processing resources when compared to traditional,

administrative FOIPA requests.” Def.’s Mot., ECF No. 14, at 7; see Hardy Decl. at ¶ 20.

Plaintiff argues that although the FBI cites its current FOIA litigation load as a

justification for its failure to timely process Plaintiff’s FOIA request, the FBI cites selectively

to statistics from 2014-present, which show a “steady” and “completely predictable” increase

over the past five years, instead of putting it in perspective over a longer period of time. Pl.’s

Opp’n, EF No. 15, at 10. See Clemente, 71 F. Supp. 3d at 267 (finding that “anecdotal evidence”

does not show the FBI’s “workload as it has developed over time” and noting that the Court

could not conclude that obligations arising from the [FOIA] lawsuits were “more than the

predictable workload of the agency”); see also Elec. Privacy Info. Ctr., 933 F. Supp. 2d at 48

(“[W]ithout more elaboration as to the FBI’s litigation-related processing obligations over

specific periods of time, the Court cannot determine what, if any, impact these obligations

should have on the Court’s analysis of the FBI’s FOIA workload.”)

The Court finds that the FBI’s involvement in other litigation regarding FOIA requests

indicates that the number of cases being litigated has increased at a steady rate, which shows

that the FBI is dealing with a predictable workload, and this does not weigh in favor of granting

an Open America stay.

11 4. FOIA Backlog

The Hardy Declaration does not specifically address steps taken by the FBI to alleviate

any backlog of FOIA requests nor does it indicate how denying a stay might affect others in the

que of front of Plaintiff’s request. The Declaration focuses instead on the general manner in

which the FBI processes FOIA requests, the structure of RIDS, and technological

improvements. The Declaration mentions that RIDS is currently engaging in an ”aggressive

hiring program” designed to “keep up with constant personnel turnover,” with the proviso that

“it takes years to fully develop a FOIA analyst.” Hardy Decl., ECF No. 14-1, at ¶¶ 37-39.

Plaintiff notes that the backlog of FOIA requests significantly increased from 2015

(around 2,600) to 2016-2017 (hovering around 4,400) from where it was during 2008-2010

(around 1,450), even though the number of FOIA requests was highest in 2008-2009, and the

number of FOIA requests was comparable in 2016-2017 to the number in 2010. See Pl.’s Opp’n

at 6 (Table). Plaintiff includes a Chart in its Opposition titled “FBI Backlog Against Number of

Requests” and observes that while “the FBI absorbed the significant increase in FOIA requests

in 2008-2010 without carrying a significant backlog,” the FBI has failed to respond to the

“steady increase in the number of FOIA requests over the last six years” or to address the

“bump” at the onset of the new administration, and therefore, the backlog has grown. Pl.’s

Opp’n, ECF No. 15, at 12 (Chart). Plaintiff contends that the FBI has not done enough to control

or reduce its backlog with regard to FOIA processing generally or this case specifically, where

“the only backlog reduction noted in the FBI’s declaration is that, through negotiation, it reduced

the number of pages to be processed.” Pl.’s Opp’n, ECF No. 15, at 12. Plaintiff relies on

Clemente, 71 F. Supp. 3d at 268 and Elec. Info. Privacy Ctr., 933 F. Supp. 2d at 49, for the

proposition that the Defendant’s Open America stay should be denied on grounds that the FBI

12 has not done enough to control or reduce its backlog of FOIA requests. Plaintiff distinguishes

Democracy Forward Found. v. Dep’t of Justice, No. 18-00734,

(D.D.C.

Dec. 7, 2018), where an Open America stay was granted because there, “the DOJ OIP

demonstrated that the number of FOIA requests it received increased at a ‘steady pace’ from

‘904 in FY 2008 to 1803 in FY 2016’ but then showed a substantial, unprecedented spike from

2016-2019 from 1,803 to 2,818, a nearly 34% increase.” Pl.’s Opp’n, ECF No. 15, at 13.

Analyzing the date provided by Plaintiff, the Court finds that the FBI has not made

reasonable progress in reducing its backlog of FOIA requests. During 2008 and 2009, the FBI

was processing around 16,400 requests each year, similar to the approximately 15,600 requests

processed in 2017; however, the backlog was around 1,400 requests in 2008-2009, while it

stands at around 4,400 requests in both 2016 and 2017. Furthermore, while the number of

requests processed in 2016 was approximately 13,750, which was on par with 2015, the backlog

jumped from approximately 2,600 in 2015 to 4,300 in 2016.

With regard to any affirmative steps taken by the FBI in this case to reduce its FOIA

backlog, the FBI did effectively encourage Plaintiff to modify its request with a resulting

reduction from 11,000 to 7,000 regarding the number of potentially responsive pages. The FBI

mentioned that it is engaged currently in an “aggressive hiring program” to try to keep up with

“constant personnel turnover,” and it has secured additional funding recently to hire more

contract personnel; however, the FBI concedes that it “takes years to fully develop a FOIA

analyst” and thus, the “increase in production from these contractors will likely be incremental.”

Hardy Decl., ECF 14-1, ¶¶ 37-39 & n.19. The Court finds that the FBI has not demonstrated

that it has addressed its FOIA backlog in a meaningful and timely fashion so as to warrant an

Open America stay.

13 IV. CONCLUSION

Upon review of the parties’ submissions, the Court finds that the FBI has not shown

exceptional circumstances or made sufficient progress in reducing its backlog to warrant an

Open America stay. 2 Having determined that a stay is not appropriate, this Court must now

decide whether to grant Plaintiff’s request that the FBI to process 1,200 pages per month instead

of applying the FBI’s usual processing rate of 500 pages per month because of Plaintiff’s

allegations of “critical media interest in this story[ ] and its relevance to ongoing current

events[.]” Pl.’s Opp’n, ECF No. 15, at 19. Defendant argues that this “unsupported” request

for 1,200 pages a month is contrary to the “500 pages per month set forth in the FBI’s policy

and typically ordered by this Court.” Def.’s Reply, ECF No. 19, at 3; see, e.g., Nat’l Sec.

Counselors v. U.S. DOJ,

(D.C. Cir. 2017) (recognizing that the FBI’s

500-page-per-month policy “serves to promote efficient responses to a larger number of

requesters’); Freedom Watch v. Bureau of Land Mgmt.,

(D.D.C. Sept.

25, 2018) (Kollar-Kotelly, J.) (upholding the FBI’s interim release policy of 500 pages per

month despite the fact that processing of plaintiff’s FOIA request would take approximately 500

months); see also Hardy Decl., ECF No. 14-1 at ¶¶ 31-36 (explaining the rationale and

justification for the FBI’ interim release policy). The FBI has indicated that there are 7,000

potentially responsive documents to Plaintiff’s modified request. This Court finds no reason in

this case to vary from the FBI’s policy of processing 500 pages per month, which will result in

a processing schedule spanning 14 months from June 2019 through August 2020. Because it is

unclear what types of documents fall within the 7,000 pages, the Court directs that the FBI

2 In light of this ruling, this Court need not address Plaintiff’s allegations that it should have received expedited processing of its request. 14 categorize the documents so that Plaintiffs can establish an order for production in which public

documents are produced last. Production should be made on a rolling basis.

In the parties’ [13] Joint Status Report, they noted that they did not have a view on the

necessity of a Vaughn Index, as the Open America request needed to be resolved before the

parties could set a production schedule. Accordingly, the parties shall provide this Court with

a Status Report by no later than June 28, 2019, setting forth a production schedule and a deadline

for completion of all production, and indicating the parties’ positions on a Vaughn Index.

For the foregoing reasons, the Court shall DENY Defendant’s [14] Motion for an Open

America Stay. An appropriate Order accompanies this Memorandum Opinion.

___________/s/_____________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

15