Case 1:16-cv-02258-KBJ Document 10 Filed 03/06/17 Page 1 of 33

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 16-2258-KBJ
)
NATIONAL SECURITY AGENCY,
)
)
Defendant.
)
______________________________)
DEFENDANT’S MOTION TO STAY PROCEEDINGS
Defendant National Security Agency (“NSA”), through
undersigned counsel, hereby moves for a stay of proceedings in
order to gain the time needed to appropriately process
plaintiff’s Freedom of Information Act request, and further
requests that the Court order the Agency to process no more than
400 pages of potentially responsive documents per month.

In

support of this motion, defendant respectfully submits the
attached memorandum in support of defendant’s motion, with a
supporting declaration and exhibits, and a proposed Order.
Plaintiff has been consulted as required by LCvR 7(m) and has
indicated that he will oppose this motion.

Respectfully submitted,
CHANNING PHILLIPS,
D.C. Bar # 415793
United States Attorney
for the District of Columbia

 Case 1:16-cv-02258-KBJ Document 10 Filed 03/06/17 Page 2 of 33

DANIEL F. VAN HORN,
D.C. BAR # 924092
Chief, Civil Division

/s/ Marina Utgoff Braswell
MARINA UTGOFF BRASWELL
D.C. BAR #416587
Assistant United States Attorney
U.S. Attorney’s Office
Civil Division
555 4th Street, N.W.
Washington, D.C. 20530
(202) 252-2561
marina.braswell@usdoj.gov

2

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 16-2258-KBJ
)
NATIONAL SECURITY AGENCY,
)
)
Defendant.
)
______________________________)
MEMORANDUM IM SUPPORT OF DEFENDANT’S MOTION TO STAY PROCEEDINGS
PRELIMINARY STATEMENT
In this case brought pursuant to the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, defendant National Security
Agency (“NSA” or “Agency”) moves for a stay of proceedings for
six (6) months so that the NSA can appropriately process
plaintiff’s three (3) broad FOIA requests.

The Agency further

requests that it be ordered to process no more than 400 pages
of potentially responsive documents per month.

Although the

NSA is exercising due diligence in responding to this request,
exceptional circumstances prevent it from processing the
request within the statutory time limit, or at the pace
requested by plaintiff.

Pursuant to 5 U.S.C. § 552(a)(6)(C),

which provides for additional time to process FOIA requests
under such circumstances, defendant requests that the Court
stay the proceedings until the NSA is able to appropriately

 Case 1:16-cv-02258-KBJ Document 10 Filed 03/06/17 Page 4 of 33

process plaintiff’s requests, one (1) of which has already
begun.

In support of its motion, the NSA submits the sworn

Declaration of David J. Sherman (“Sherman Decl.” or “Sherman
Declaration”), Chief of Strategy, Plans, and Policy for the
Agency, which explains that the NSA requires a stay of
approximately six (6) months, or until September of 2017, to
continue processing one of plaintiff’s FOIA requests, begin
processing the other two (2) requests, and subsequently release
any responsive records.

Further, the NSA requests the Court

order it to process no more than 400 pages of potentially
responsive materials per month.

See Sherman Declaration,

attached.
A stay until September of 2017 is warranted by the facts of
this case.

The NSA has begun processing one (1) of plaintiff’s

three (3) requests.

The NSA attempted to negotiate with

plaintiff to narrow the scope of responsive records, and
although plaintiff initially agreed to narrow the scope of one
of his requests, he has since indicated through counsel that he
desires to pursue the broad parameters of his initial request.
STATEMENT OF FACTS
A.

The NSA’s FOIA Request Processing System

As Mr. Sherman explains, all FOIA requests submitted to the
NSA come to the Freedom of Information Act/Privacy Act (FOIA/PA)
Office, which is located organizationally in the Office of
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Strategy, Plans and Policy.

Sherman Decl., ¶¶ 1, 24.

Each FOIA

request submitted to NSA must go through a series of reviews,
including: 1) initial receipt and perfection; 2) initial
determination regarding which processing track is appropriate
for the request; 3) searching for and collecting potentially
responsive materials; 4) scoping the material for
responsiveness; 5) consultation with other agencies, as
appropriate; 6) two levels of classification/declassification
review, including a line-by-line review of each page, as well as
a final management level review; and, 7) final processing of
responsive materials for release.

These steps must be taken

sequentially, as access to the information, which is often
classified and involves matters of national security, must be
strictly controlled to ensure its integrity.

Id. at ¶ 23.

The FOIA Office’s (“FO”) Initial Processing Team reviews
and sorts all correspondence and requests for information from
the public, Congress, other federal and state agencies, and
foreign governments.

They also perform various initial tasks

required to “perfect” a FOIA/PA request, such as sending
acknowledgment letters, requesting identifying information from
requesters to ensure that a records search is properly
performed, informing requesters when a notarized signature
and/or Privacy Act (“PA”) waiver is required, and notifying
requesters when no responsive records are located, or the
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request is outside the purview of the Agency’s mission.

The

request is then assigned a case number, and entered into NSA’s
FOIA document management system.

A request is considered

“perfected” when all administrative tasks have been completed
and the FO has a clear understanding of the scope and subject
matter desired by the requester. Id. at ¶ 24.
Once a request has been perfected, the FO sends an
acknowledgment letter to the requester with pertinent
information such as the assigned case number, and the status of
related requests regarding fees and/or expedited processing.
The request is then place in the appropriate processing queue.
Id. at ¶ 25.
The assignment of a request to one of the processing queues
depends on the estimated time in which the request can be fully
processed.

Requests that can be fully processed in 20 days or

less are assigned to the “simple” queue.

Requests that will

require more than 20 days for a complete response are assigned
to the “complex” queue.
are in litigation.

The third queue is for requests that

This established “multi-track” system

ensures that all requesters are treated equitably by
concurrently processing requests within each queue on a “firstin, first-out” basis.

This significantly improves the

efficiency and effectiveness of the FO by enabling it to process
complex and time-consuming requests concurrently with simple
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requests, so that one requester does not consume a
disproportionate share of FO resources to the detriment of other
requesters.

Id. at ¶ 26.

Before any NSA records or information is released, it must
be reviewed to determine if it contains classified information
pursuant to Executive Order 13526, and if so, how that
information should be handled.

Some requests, like the instant

one, return potentially responsive documents that also contain
Personally Identifiable Information (“PII”) and/or privileged
communications.

Further, the Office of the Inspector General

(“OIG”) records, at issue in this matter, often contain
information that is exempt from disclosure under one or more
applicable FOIA exemptions.

For these reasons, documents must

be carefully reviewed to prevent the release of information that
is currently and properly classified, would constitute an
unwarranted breach of personal privacy, or is otherwise exempt
from release.

This phase of the process is extremely time-

consuming, as each responsive document must be reviewed page-bypage, line-by-line, and word-by-word to determine which, if any,
FOIA and/or Privacy Act (“PA”) exemptions may apply.

This

includes recommending redactions of exempt material and notating
the applicable exemption(s) in the margin of each page, or
deleting pages when they are withheld in their entirety.

All of

this is done electronically, and requires the information to be
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transitioned between multiple document management and editing
tools.

Id. at ¶ 27.

During this phase of the process, the FO refers responsive
documents to other government and intelligence agencies, as
necessary, for their respective determinations regarding the
releasability of information in NSA records that belongs to, or
originated with, the other agency.

If a document originated

with another agency, the NSA may refer those non-NSA records to
that other agency for processing and direct response to the
requester.

Before responsive documents complete this phase of

the process, the FO must confirm that all appropriate FOIA
and/or PA exemptions have been properly applied, no releasable
information has been withheld, no information warranting
protection has been released, all necessary classification
reviews have been conducted, and other government and
intelligence agencies’ information has been properly handled.
Id. at ¶ 28.
Any requests that result in federal litigation are
coordinated between the FO and NSA’s Office of the General
Counsel’s Litigation Group (“LG”).

Together, these

organizations prepare the administrative record, draft both
procedural and substantive declarations, code and Bates stamp
documents for release, and draft detailed declarations
justifying the application of FOIA and/or Privacy Act
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exemptions.

The LG also reviews appeal determinations to ensure

that the appropriate legal and statutory standards have been
applied, and are consistent with prevailing rulings in various
jurisdictions.
B.

Id. at ¶ 29.

Plaintiff’s FOIA Request
1.

Case No. 79204

By email dated Saturday, September 20, 2014, plaintiff
submitted a FOIA request to the NSA seeking:
“…disclosure from the National Security Agency Office
of Inspector General a copy of the concluding document
report of investigation, final report, closing memo,
referral letter) concerning investigations closed in
calendar year [sic] 2013 and 2014 concerning
misconduct, actual or alleged.”
The request included instructions to:
1)

Follow any leads discovered while conducting a
search for responsive documents and perform
additional searches as necessary;

2)

Include records that are already publicly
available;

3)

Search both electronic and paper/manual files;

4)

Search all offices and components;

5)

Release any photographs or visual materials in
their original (or comparable) form;

6)

Disclose any and all “supposedly ‘duplicate’
pages” including pages that may have already been
released to Plaintiff;

7)

Include emails relating to the subject matter of
the request;

8)

Search records transferred to, and/or publicly
available through, other agencies;

9)

Include records relating to the destruction of
responsive documents; and,
7

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10) To “interpret the scope of this request in the
most liberal manner possible short of an
interpretation that would lead to a conclusion
that the request does not reasonably describe the
records sought.”
In addition to the above documents, plaintiff requested a fee
waiver or, in the alternative, to receive “News Media” status for
fee waiver purposes.

Id. at Ex. A.

On September 22, 2014, the FO contacted NSA’s OIG for
assistance interpreting and scoping plaintiff’s request.

By

letter dated September 23, 2014, the FO acknowledged plaintiff’s
request, assigned it Case No. 79204, stated that his request for
a fee waiver has not yet been addressed, and advised him of a
significant delay in processing due to the number of requests
ahead of his in the queue.

Id. at Ex. B.

By reply email on September 24, 2014, the FO contacted
plaintiff proposing two options for re-scoping his request:

1)

a compiled list/index of investigations that would include
information, such as the date the investigation was opened, the
category (waste/misuse of resources, time & attendance fraud,
etc.), and whether the allegations were substantiated; or, 2)
limit the scope of the request to a discrete and specific type
of misconduct.

By email on September 26, 2014, plaintiff

responded that he was willing to narrow his request to only
investigations with findings of misconduct.

8

Id. at Ex. C.

 Case 1:16-cv-02258-KBJ Document 10 Filed 03/06/17 Page 11 of 33

However, plaintiff’s Complaint in the instant litigation, as
well as recent communications with plaintiff’s counsel, indicate
that plaintiff desires to resurrect the broader scope of his
initial request.

Id. at ¶ 10, footnote 2.

On June 21, 2016, the FO tasked NSA’s OIG to search for
documents responsive to plaintiff’s request.

The OIG’s search

returned approximately 8,488 pages of potentially responsive
documents.

Id. at ¶ 11.

By letter dated September 15, 2016, the FO advised
plaintiff that his request for a fee waiver was denied because
he did not provide adequate information concerning the statutory
requirements permitting a fee waiver, but that he was granted
“News Media” status for the purpose of calculating fees related
to his request.

The letter also advised plaintiff that, due to

the volume of potentially responsive documents, duplication fees
could be as high as $1,000.00 and requested that he provide a
statement regarding his willingness to pay.

Id. at Ex. D.

By email dated September 23, 2016 plaintiff responded that
he would pay “$1,000.00 or more” but also advised that he would
appeal the FO’s denial of his request for a full fee waiver.
Id. at Ex. E.
By letter dated October 18, 2016, the FO requested
plaintiff pay $343.00, which represented 50% of the estimated
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duplication fees (related to this request only).

It further

advised that the page count and associated duplication fees
would be significantly reduced if plaintiff would accept the
final summary memorandum for each investigation in lieu of the
entire investigative file.

Id. at Ex. F.

By letter dated

October 24, 2016, plaintiff administratively appealed the denial
of his fee waiver request.

Id. at Ex. G.

Before NSA ruled on

his appeal, plaintiff filed the instant litigation.
15.

Id. at ¶

To date, the FO has received no payment of estimated fees

from plaintiff, and therefore stopped processing this request.
Id. at ¶ 14.
2.

Case No. 79825

By email dated Sunday, November 30, 2014, plaintiff
submitted another FOIA request to the NSA seeking:
“…disclosure from the National Security Agency Office
of Inspector General of copies of Semi-Annual Reports
for the past 11 years.”
The request included instructions to:
1)

Follow any leads discovered while conducting a
search for responsive documents and perform
additional searches as necessary;

2)

Include records that are already publicly
available;

3)

Search both electronic and paper/manual files;

4)

Search all offices and components;

5)

Release any photographs or visual materials in
their original (or comparable) form;

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6)

Disclose any and all “supposedly ‘duplicate’
pages” including pages that may have already been
released to Plaintiff;

7)

Include emails relating to the subject matter of
the request;

8)

Search records transferred to, and/or publicly
available through, other agencies;

9)

Include records relating to the destruction of
responsive documents; and,

10) To “interpret the scope of this request in the
most liberal manner possible short of an
interpretation that would lead to a conclusion
that the request does not reasonably describe the
records sought.”
In addition to the above documents, plaintiff requested a fee
waiver or, in the alternative, to receive “News Media” status for
fee waiver purposes.

Id. at Ex. H.

By letter dated December 02, 2014, the FO acknowledged
plaintiff’s request, assigned it case No. 79825, stated that his
request for a fee waiver has not yet been addressed, and advised
him of a significant delay in processing due to the number of
requests ahead of his in the queue.

Id. at Ex. I.

On September 21, 2016, the FO began processing this case.
Id. at ¶ 18.

By email dated October 06, 2016 plaintiff

requested an estimated date of completion for this request.

The

FO responded by email dated October 11, 2016 that, due to the
volume and complexity of the potentially responsive material,
plaintiff’s request had an estimated completion date in December

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2018, advising him that processing had begun, and that documents
were in one of the approval queues. Id. at Ex. J.
3.

Case No. 85643

By facsimile dated Thursday October 06, 2016, plaintiff
submitted another FOIA request to the NSA seeking:
“…disclosure from the National Security Agency Office
of Inspector General a copy of the concluding document
(report of investigation, final report, closing memo,
referral letter) concerning investigations conducted
and closed in calendar years 2015 and 2016 thus far
concerning any and all misconduct, actual or alleged.”
The request included instructions to:
1)

Follow any leads discovered while conducting a
search for responsive documents and perform
additional searches as necessary;

2)

Include records that are already publicly
available;

3)

Search both electronic and paper/manual files;

4)

Release any photographs or visual materials in
their original (or comparable) form;

5)

Disclose any and all “supposedly ‘duplicate’
pages” including pages that may have already been
released to Plaintiff;

6)

Include emails relating to the subject matter of
the request;

7)

Search records transferred to, and/or publicly
available through, other agencies;

8)

Include records relating to the destruction of
responsive documents; and,

9)

To “interpret the scope of this request in the
most liberal manner possible short of an
interpretation that would lead to a conclusion
that the request does not reasonably describe the
records sought.”

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In addition to the above documents, plaintiff requested a fee
waiver or, in the alternative, to receive “News Media” status for
fee waiver purposes.

Id. at Ex. K.

By letter dated October 13, 2016, the FO acknowledged
receipt of plaintiff’s request, assigned it case No. 85643,
stated that his request for a fee waiver has not yet been
addressed, and advised him of a significant delay in processing
due to the number of requests ahead of his in the queue.

Id. at

Ex. L.
On November 17, 2016, plaintiff filed the instant
litigation.
C.

Search for Responsive Documents

The NSA has conducted searches to identify documents
potentially responsive to plaintiff’s requests.

Because

plaintiff requested all “concluding documents” for OIG
investigations during a specific time-frame (01/01/2013 –
10/06/2016), without regard to the category or subject of the
investigation, identifying responsive documents was a relatively
simple exercise, yet resulted in a voluminous amount of records.
Id. at ¶ 30.
As previously noted, NSA’s OIG’s search returned
approximately 8,488 pages of potentially responsive documents
for Case No. 79204.

The OIG’s search in Case No. 79825

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identified responsive documents that were already being
processed pursuant to two (2) other FOIA requests.

Seventeen

(17) responsive documents, consisting of 430 pages, for the time
frame 09/01/2008 – 09/30/2016, and seven (7) responsive
documents, consisting of 76 pages, for the time frame 03/01/2005
– 03/31/2008 have also been identified as potentially
responsive.

At least one of these documents will require

consultation with another agency.

Id. at ¶ 32.

Searches pursuant to Case No. 85643 identified that, in the
requested time frame, 154 OIG investigations were conducted.
This resulted in 137 reports, with approximately 13,240 pages of
potentially responsive material.
D.

Facts Supporting an Open America Stay
1.

Volume and Complexity of Requests

In 2009, the FO received 1,034 direct FOIA and PA requests
and processed 1,005 of those, comprising approximately 11,847
pages of responsive materials.

By 2012, the number of requests

had increased to 1,939, but the FO was still able to process
1,904 of those during the year, comprising 22,408 pages of
responsive documents.

Id. at ¶ 34.

In June 2013, a former NSA contractor began a series of
unprecedented, unauthorized, and unlawful disclosures of
classified documents concerning classified NSA programs and
activities.

By September 2013, the FO had received 3,976 new
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FOIA and PA requests, and had over 1,100 pending requests in its
overall backlog.

This incident has had an ongoing impact on the

volume and complexity of FOIA requests received by the NSA and
its ability to respond to those requests.

Id. at ¶ 35.

The FO immediately took steps to streamline its work,
including the use of form letters, the formation of specific
teams to address backlog issues, consultations and referrals to
other agencies, and simplifying its multi-track processing
system from six (6)1 concurrent tracks down to the three-track
system described above.

Id. at ¶ 36.

Despite these efforts, the number of requests increased so
suddenly, and so dramatically, that by the time additional
resources were identified and trained, a significant backlog of
requests, many of which were very complex, had already
developed.

In CY 2012, the NSA received a total of 1,809

FOIA/PA requests, or an average of 151 requests per month, and
had 664 pending requests at the end of the year.

In CY 2013,

the total number of FOIA/PA requests rose to 4,328, or an
average of 361 requests per month, and the backlog rose to 930
pending requests at the end of the year.

In CY 2014, the NSA

received a total of 2,990 FOIA/PA requests, or an average of 249
requests per month, but its backlog grew to 1,326 by the end of

1

For detailed information on NSA’s former 6-track system, see 32
C.F.R. § 299.5.
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the year.

In CY 2015, the NSA received a total of 1,767 FOIA/PA

requests, or an average of 147 requests per month, with a
backlog of 1,566 requests.

And in CY 2016, the NSA received a

total of 1,881 FOIA/PA requests, or an average of 157 requests
per month, with a backlog of 1,630 requests.

Although the

volume of requests has returned to a level more consistent with
prior years, that brief but significant spike in requests in
2013 and 2014, and the event that precipitated it, have had a
broad and lasting impact on NSA’s FOIA program.

Id. at ¶ 37.

The NSA FO’s workload today is significantly more complex
and demanding than it was before the unauthorized disclosures of
June 2013.

After the unauthorized disclosures revealed

classified details of NSA’s foreign surveillance program, the
NSA began receiving significantly more individual requests for
its records on specific persons.

And while each of these

requests requires fewer resources than the instant requests by
plaintiff, taken together, these individual requests have
nevertheless had an impact on limited resources.

Further,

current issues of significant public interest such as candidate
Hillary Clinton’s email investigation, reports of Russian
involvement in the recent election, and the continued
unauthorized public release of classified NSA information,
continue to result in an increase in the number and complexity
of requests received.

As other federal agencies have reported,
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the FOIA/PA landscape has dramatically changed in recent years
such that responding to information requests demands increasing
amounts of time and effort and continues to tax finite
resources.

Id. at ¶ 38.

It is noteworthy that the documents responsive to
plaintiff’s requests in the instant litigation have a page count
of 22,218, which is roughly equivalent to the 22,408 pages
processed by NSA’s FO in all of CY 2012.

And while plaintiff’s

request has returned an exceptionally large number of
potentially responsive pages, it is representative of the
growing trend that requests are increasing in complexity and
thus in the size of potentially responsive materials.
For example, ACLU Foundation v. CIA, 16-CV-1256 (EGS), is
litigation pursuant to a request that was submitted to 18
different government entities for 6 different categories of
information relating to the prepublication processes of
Intelligence Community agencies.

From NSA’s perspective, the

scope and complexity of this request was significant, since all
NSA civilians, military employees, and contractors are required
to have any writings relating to NSA (such as resumes, cover
letters, biographies, etc.) reviewed through NSA’s
prepublication process prior to dissemination, as a condition of
their employment.

In that case, the parties successfully

negotiated to narrow the scope of the request, which
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significantly reduced the overall number of potentially
responsive materials.
The total number of potentially responsive pages has a
proportional impact on the complexity of the processing of those
materials.

All potentially responsive materials require

internal reviews, declassification considerations, and the time
associated with page-by-page, line-by-line, and word-by-word
reviews to determine what can be released and/or withheld.
Since OIG investigations and reports are the subject of the
instant requests, these potentially responsive documents will
also contain PII and/or privileged communications of witnesses,
complaints, and others related to investigations and other
information that is exempt from disclosure under the FOIA
pursuant to 5 U.S.C. §§ 552 (b)(3), (b)(5), (b)(6), and/or
(b)(7).

For these reasons, documents must be carefully reviewed

to prevent the release of information that is currently and
properly classified, would constitute an unwarranted breach of
personal privacy, or is otherwise exempt from release.

In

addition, the increased complexity and volume of a request
proportionately increases the need for consultations
with/referrals to other government and intelligence agencies,
and the need for subject-matter experts to provide guidance as
determinations are made at each step in the process.
39.
18

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 Case 1:16-cv-02258-KBJ Document 10 Filed 03/06/17 Page 21 of 33

2.

Workflow Management, Limited FOIA Resources, and
Litigation Demands

Despite best efforts, some requests become the subject of
judicial complaints.
FOIA litigations.

Currently NSA has approximately 18 pending

Although NSA’s FO continuously strives to

comply with the FOIA’s statutory and regulatory requirements for
responsiveness and processing times, this requires a careful
allocation of its limited personnel resources.

The same

individuals who are working to comply with numerous litigation
deadlines are simultaneously handling a constantly high volume
of administrative requests, appeals, consultations, and
referrals.

Any increase in the number of personnel that must be

allocated to process documents pursuant to a court-ordered
production schedule means a commensurate reduction in the number
of personnel processing documents for requesters who have chosen
not to litigate.

Given NSA’s limited number of FOIA personnel,

if the Court orders defendant to process plaintiff’s requests at
a rate greater than 400 pages per month, the individuals who
filed the 1,603 pending requests in NSA’s current backlog, many
of which were filed well before plaintiff’s, will be
disadvantaged.

Id. at ¶ 41.

Further, recent changes to the FOIA statutes pursuant to
the FOIA Improvement Act of 2016 (See 5 U.S.C. § 552) are likely
to increase the demand on the FO’s limited resources.

19

Some of

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the changes expand the time during which requesters can
administratively appeal agency determinations, while others
prohibit agencies from charging fees if a request is not
processed in the statutorily required time period, which can be
as short as 20 days.
3.

Id. at ¶ 42.

Large Number of Requests Filed by Small Group of
Requesters, Many of Whom Quickly Resort to
Litigation

In addition to the increased volume, complexity, and
litigation demand discussed above, NSA has experienced a
significant increase in the number of requests by a small group
of requesters.

These requesters also levy complex, multi-part,

multi-subject requests simultaneously on various government
agencies.

Then these individuals often commence judicial action

immediately after statutory requirements for exhausting
administrative remedies have been satisfied.

They presumably

intend to jump to the front of the queue, ahead of requesters
who have chosen not to litigate, many of whom almost certainly
lack the necessary financial resources.

Id. at ¶ 43.

For example, plaintiff Jason Leopold is “a self-styled
‘FOIA terrorist’” who, according to a recent press release by
his new employer, BuzzFeed.com, makes his living “by deluging
the federal government with Freedom of Information Act
requests.”

(https://pynter.org/2017/buzzfeed-hires-foia-

terrorist-jason-leopold-from-vice-news/444034.) He proudly
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claims to have “brought more FOIA lawsuits by himself than any
other news organization except the New York Times.”

Sherman

Decl. at ¶ 44.
Further, plaintiff has refused to modify his request at
all, much less in a reasonable fashion, to reduce its sweeping
scope, despite defendant’s requests to focus the request on
time-frames and/or subject matter in which he is most
interested.

Id. at ¶ 45.

Plaintiff has not claimed that his

life, safety, or substantial due process rights would be
jeopardized if his request is not processed immediately; and
even if, arguendo, NSA was able to process plaintiff’s requests
at his requested pace of 750 pages per month, he would still
wait almost 2.5 years to receive all of the information, due to
the significant number of potentially responsive pages.

Thus,

plaintiff has failed to make a particularized showing of
exceptional need or urgency which would justify moving his
request to the front of the litigation queue, and in effect,
disadvantaging other requesters.

Id. at ¶¶ 45, 46.

ARGUMENT
A.

Legal Standard For a Stay of Proceedings

An agency receiving a FOIA request generally must determine
whether to comply with the request within 20 working days.
U.S.C. § 552(a)(6)(A)(i).

5

Once the initial twenty days has

passed without an agency determination on the request, the FOIA
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requester “shall be deemed to have exhausted his administrative
remedies,” Id. at § 552(a)(6)(C)(I), and the requestor can file
suit in federal court.

The Court may, however, “allow the agency

additional time to complete its review of the records” upon a
showing that “exceptional circumstances exist and that the agency
is exercising due diligence in responding to the request.”

Id. §

552(a)(6)(C)(i).
Effective October 2, 1997, as part of the Electronic
Freedom of Information Act Amendments of 1996, Congress
amended 5 U.S.C. § 552(a)(6)(C)(i) by adding the following
two subsections:
(ii) For purposes of this subparagraph [5 U.S.C. §
552(a)(6)(C)], 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.
(iii) Refusal by a person to reasonably modify the
scope of a request or arrange an alternative time
frame for processing the request (or a modified
request) under clause (ii) 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.
See 5 U.S.C. § 552(a)(6)(C)(ii), (iii).
The leading case construing section 552(a)(6)(C) is Open
America v. Watergate Special Prosecution Force, 547 F.2d 605
(D.C. Cir. 1976), which involved the issue of an agency’s backlog
of FOIA requests preventing it from even starting to work on the
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plaintiff’s FOIA request.

In that case, which involved a FOIA

request directed to the FBI, the Court of Appeals for this
Circuit held that an agency is entitled to additional time to
process a FOIA request under § 552(a)(6)(C) when it 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.
Id. at 616 (quoting 5 U.S.C. § 552(a)(6)(C)).

See also Oglesby

v. Department of the Army, 920 F.2d 57, 64 (D.C. Cir. 1990)
(“Frequently, if the agency is working diligently, but
exceptional circumstances have prevented it from responding on
time, the court will refrain from ruling on the request itself
and allow the agency to complete its determination.”).
The importance of the Open America decision is that the
Court of Appeals recognized that there may be circumstances in
which an agency simply cannot reasonably process a FOIA request
within the statutory timetables.

Under such circumstances, if

the agency is exercising due diligence in its efforts, a stay of
proceedings is warranted to allow the agency the time needed to
process the FOIA request.

Courts “cannot focus on theoretical

goals alone, and completely ignore the reality that these
agencies cannot possibly respond to the overwhelming number of
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requests received within the time constraints imposed by FOIA.”
Cohen v. FBI, 831 F. Supp. 850, 854 (S.D. Fla. 1993).
“[E]xceptional circumstances” therefore include “any
delays encountered in responding to a request as long as the
agencies are making good-faith efforts and exercising due
diligence in processing requests . . . .”

Appleton v. FDA, 254

F. Supp.2d 6, 8-9 (D.D.C. 2003).
Courts have frequently issued orders extending the time to
respond to FOIA requests. See e.g., National Security Archive
v. SEC, 770 F. Supp.2d 6, 8-9 (D.D.C. 2011); Electronic
Frontier Foundation v. Department of Justice, 517 F. Supp.2d
111, 120-121 (D.D.C. 2007); Piper v. U.S. Department of
Justice, 339 F. Supp.2d 13, 16 (D.D.C. 2004) (discussing a stay
of two years given to the FBI); Appleton, 254 F. Supp.2d at 11
(granting FDA’s motion for stay pending completion of search
and production of documents); Williams v. FBI, 2000 WL 1763680,
at *3 (giving the FBI until May 2, 2001, to review records
requested prior to August 21, 1998); Judicial Watch of Florida,
Inc. v. U.S. Department of Justice, 102 F. Supp.2d 6, 9 & n.1
(D.D.C. 2000) (discussing an order giving the FBI until June 8,
2000, to respond to a request dated July 15, 1997); Edmond v.
United States Attorney, 959 F. Supp. 1, 4 (D.D.C. 1997) (giving
the U.S. Attorney’s Office until April 1, 1998 to respond to a
request filed August 14, 1992); Rabin v. U.S. Department of
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State, 980 F. Supp. 116, 123-24 (E.D.N.Y. 1997) (permitting
Department of State over three years to process plaintiff’s
FOIA request); Jiminez v. FBI, 938 F. Supp. 21, 31 (D.D.C.
1996) (granting FBI’s request for stay and permitting it over
four years to respond to plaintiff’s FOIA request); Ohaegbu v.
FBI, 936 F. Supp. 7, 8-9 (D.D.C. 1996) (granting request for
stay and permitting July 1997 response to FOIA request
submitted in July 1995).
As shown below, because the NSA can demonstrate both
exceptional circumstances and due diligence in handling
plaintiff’s request, the Court should stay the proceedings until
September 2017 to allow the NSA time to appropriately process
plaintiff’s requests at the rate of 400 pages of potentially
responsive materials per month.
B.

The NSA Is Entitled to a Stay
1.

Plaintiff’s Refusal to Sufficiently Narrow the
Scope of His Request Weighs in Favor of Granting a
Stay

An important consideration in determining whether or not a
stay is warranted is the extent to which a requester cooperated
with the agency by agreeing to modify or narrow the request.
FOIA expressly provides that the “[r]efusal by a person to
reasonably modify the scope of a request or arrange an
alternative time frame for processing the request (or a
modified request) . . . after being given the opportunity to do
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so by the agency to whom the person made the request shall be
considered as a factor in determining whether exceptional
circumstances exist . . . .”

5 U.S.C. § 552(a)(6)(C)(iii).

This factor weighs heavily in favor of granting a stay in this
matter.
Given the large volume of potentially responsive documents
to plaintiff’s FOIA request, the NSA requested that plaintiff
limit the scope of the documents requested.

Plaintiff initially

agreed to do so only in part, but has since indicated his desire
to return to the broad scope of his original request.

Ex. C;

See also, Sherman Decl. at ¶ 10, footnote 2.
Plaintiff submitted three (3) extremely broad FOIA
requests, each with the explicit instruction to “interpret the
scope of this request in the most liberal manner possible short
of an interpretation that would lead to a conclusion that the
request does not reasonably describe the records sought.”

He

then refused to reasonably narrow the scope, and should
therefore not be allowed to complain when the NSA requires
additional time to process the extraordinarily large number of
pages that are potentially responsive to plaintiff’s request.
Id. at Ex. A, H, & K.

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2.

The NSA’s Need for the Stay is Amply Supported by
the Sherman Declaration

Most reported cases in which a stay has been sought involve
an agency that has a back-log of requests and has not yet been
able to start processing the plaintiff’s request.

In the

instant case, the agency has begun actively working on one of
plaintiff’s three requests, but because the volume of
potentially responsive pages is so significant, and the review
required to ensure that sensitive information is appropriately
released or withheld, a significant amount of additional time is
required to begin processing plaintiff’s other two requests.
Further, defendant is only able to process responsive documents
at the rate of 400 pages per month without disproportionately
disadvantaging other FOIA requesters.

Thus, in this case, it is

clear that exceptional circumstances include both the NSA’s
existing backlog, which increased significantly following the
unauthorized disclosures of classified information in 2013, as
well as the extraordinary number pages that are potentially
responsive to plaintiff’s requests, and NSA’s limited FOIA
resources available to process plaintiff’s requests without
disadvantaging other requesters.

As shown, the NSA has made

good-faith progress in processing its backlog on a first-in,
first-out basis in its three concurrent queues, and on
processing plaintiff’s requests.

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Approximately 22,200 pages of information potentially
responsive to plaintiff’s requests have been identified.

These

documents must be reviewed on a page-by-page, line-by-line, and
word-by-word basis to determine whether any information is
subject to any of the exemptions under FOIA.
23, 27.

Sherman Decl., ¶¶

In light of the potentially sensitive nature of the

documents requested, the NSA anticipates that FOIA reviewers
will need to coordinate with subject matter experts (“SMEs”) in
order to properly review and process the documents.

These SMEs,

however, have other agency duties to perform in the regular
course of their work, which does not constitute FOIA reviews,
and thus they will not be available full-time to work on
plaintiff’s requests.

Moreover, because the requested documents

are the result of OIG investigations, the material is likely to
contain information exempt from disclosure under one or more
FOIA exemptions, as well as PII, and information that must be
coordinated with other government agencies.

Processing these

documents will be both complex and time-consuming.

Id. at ¶ 39.

In light of the existing demands on NSA’s finite FOIA
resources, it estimates that it can process 400 pages of
potentially responsive materials per month.

This pace would

accomplish constant progress against plaintiff’s requests, while
preserving the rights of other requesters to receive information
pursuant to their requests, many of which were submitted before
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plaintiff’s requests.

Altering its policy of processing

requests on a first-in, first-out basis in each of its three (3)
queues, would be neither feasible, nor an efficient use of the
NSA’s finite FOIA resources.

Id. at ¶¶ 47, 48.

The Sherman Declaration demonstrates that the NSA faces
exceptional circumstances in connection with processing
plaintiff’s broad FOIA requests and the sensitive information
that will be included in the responsive documents.

The

declaration also shows that the NSA is exercising due diligence
in processing plaintiff’s FOIA requests.

Under such

circumstances, the stay requested by the NSA is fully warranted.
CONCLUSION
In view of the foregoing, defendant NSA respectfully
requests that an Order be issued staying the pending proceeding
for six (6) months, or until September of 2017, and that the
Court order it to process no more than 400 pages of potentially
responsive materials per month.

The NSA suggests that it

submit status reports every three months to inform the Court
and plaintiff of the progress of its processing efforts.

Respectfully submitted,
CHANNING PHILLIPS,
D.C. Bar # 415793
United States Attorney
for the District of Columbia
DANIEL F. VAN HORN,
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D.C. BAR # 924092
Chief, Civil Division
/s/ Marina Utgoff Braswell
MARINA UTGOFF BRASWELL
D.C. BAR #416587
Assistant United States Attorney
U.S. Attorney’s Office
Civil Division
555 4th Street, N.W.
Washington, D.C. 20530
(202) 252-2561
marina.braswell@usdoj.gov

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
SUSAN B. LONG, et al.,
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 15-1734 (TSC)
)
CENTRAL INTELLIGENCE AGENCY, )
)
Defendant.
)
______________________________)
ORDER
UPON CONSIDERATION of defendant’s motion for a stay,
plaintiff’s opposition, and the entire record in this case, it
is hereby
ORDERED that defendant’s motion to stay is granted; and it
is further
ORDERED that this case is stayed until September ___, 2017;
and it is further
ORDERED that defendant shall process 400 pages of
potentially responsive materials per month; and it is further
ORDERED that defendant shall file a status report every
three months from the date of this Order.

________________________________
UNITED STATES DISTRICT JUDGE