Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) REPUBLICAN NATIONAL ) COMMITTEE, ) ) Plaintiff, ) ) v. ) Case No. 1:16-CV JEB ) UNITED STATES DEPARTMENT OF ) STATE, ) ) Defendant. ) ) DEFENDANT S REPLY IN SUPPORT OF ITS PROPOSED PRODUCTION SCHEDULE The Court should adopt defendant Department of State s ( State ) proposed production schedule for records potentially responsive to plaintiff Republican National Committee s ( RNC ) Freedom of Information Act ( FOIA ) request. Under that schedule, State would continue processing potentially responsive records at a rate of 500 pages per month. As set forth in the parties June 16 Joint Status Report and below, that rate is reasonable in light of all the other FOIA requests ahead of the RNC s in the FOIA processing queue and the limited resources State has to respond to those requests; the work that is involved in processing these records for release under FOIA; and the specific number of reviewer hours available to be allocated to this case. The RNC s contention that State should instead process all 7,000 pages of potentially responsive records well before November 2016, on the grounds that its request aims to shed greater light on presumptive presidential nominee Hillary Clinton s tenure as Secretary of State, Plaintiff s Opposition to Defendant s Proposed Production Schedule (ECF No. 12) at 1 ( Pl. s Opp n ), should be rejected. RNC bases its position not on the realities that face State s FOIA 1

2 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 2 of 10 office or the nature of FOIA review but rather on an inapt comparison to the number of pages that a contract attorney can process in the context of civil discovery. For all these reasons, the Court should adopt State s proposed production schedule. BACKGROUND On December 4, 2015, the RNC submitted the FOIA request at issue in this case to the Department of State, seeking all exchanges between 14 designated individuals (who were State Department employees during former Secretary of State Hillary Clinton s tenure) and 12 designated domains (certain outside accounts) dating from January 21, 2009 to February 1, See Declaration of Eric F. Stein 4 ( Stein Decl. ). The RNC requested a waiver of fees but did not request expedited processing of its request. Id. 10. State responded on January 27, 2016, acknowledging receipt of the FOIA request and denying RNC s request for a fee waiver. Id. 5. State also informed the RNC that unusual circumstances may arise that would require additional time to process the request, and promised to notify the RNC as soon as responsive materials are retrieved and reviewed. Id. Because the RNC did not request expedited processing, State placed the request in its complex processing track, in which requests are processed on a first-in-first out basis. There were thousands of FOIA requests ahead of the RNC s in the queue. Id. 11. Just over six weeks after receiving State s response, the RNC filed the instant action on March 14, 2016, (ECF No. 1). State answered the complaint on April 14, 2016 (ECF No. 2), and made an initial production of records responsive to the FOIA request a month later. At that time, the parties filed a status report reflecting the parties agreement that a second status report with a proposed production schedule would be filed on June 16, 2016 (ECF No. 10). The parties further agreed that State would process a minimum of 500 pages of potentially responsive 2

3 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 3 of 10 records and make a second production on June 16, Id. State met its commitment to process 500 pages between May 16, 2016 and June 16, 2016 and made a second production of responsive materials to the RNC on June 16, Stein Decl. 8. Along with these two productions, State has also completed its search for responsive records. It has identified approximately 3,900 potentially responsive records, totaling an estimated 7,000 pages. Id. In the June 16 status report, State agreed to continue processing records at a rate of 500 pages per month, explaining that it was unable to process the records at a faster rate due to finite resources that have remained constant and an explosion in FOIA requests and cases in litigation the great many of which are ahead of the RNC s in line. In an opposition filed on June 21, the RNC emphasized its desire to receive the records before the November election, claimed that State had done little thus far except delay, and argued that State should be able to process more than 500 pages per month. The sole basis for this latter argument is the allegation that a contract attorney can process 500 pages of records a day, presumably for purposes of civil litigation. The RNC has no effective response to the burdensome demands placed on State s FOIA office, claiming instead a right to receive the records it requested well before Election Day. ARGUMENT I. State Did Not Unreasonably Delay In Responding To The RNC s FOIA Request. Under FOIA and the State Department s implementing regulations, State generally must determine within twenty days after receipt of a FOIA request whether to comply with such request. 5 U.S.C. 552(a)(6)(A)(i); see also 22 C.F.R (d). Upon making this determination, State is required to immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of 3

4 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 4 of 10 the agency any adverse determination. 5 U.S.C. 552(a)(6)(A)(i). Thereafter, if State identifies responsive, non-exempt records, the records shall be made promptly available to such person making [the] request. Id. 552(a)(6)(C)(i); see also Daily Caller v. State, -- F. Supp. 3d --, 2015 WL at *5 (D.D.C. Dec. 8, 2015). If State fails to make and communicate its initial determination within the twenty-day statutory timeframe, the requester is deemed to have exhausted his administrative remedies and may seek immediate judicial review of the agency s processing of his request, including its delayed response. In that situation, the agency may continue to process the request, and the court... will supervise the agency s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.... Once in court,... the agency may further extend its response time if it demonstrates exceptional circumstances to the court. Daily Caller, 2015 WL at *7-8 (citing Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n, 711 F.3d 180, 185 (D.C.Cir.2013)). Barring a request being granted expedited processing, State processes incoming FOIA requests on a first-in/first-out basis. See Daily Caller, 2015 WL at *5 (citing Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C.Cir.1976) (holding that this first-in/first-out approach is generally consistent with an agency's responsibilities under FOIA)). Even when a request is granted expedited processing, that only entitles the requester to have the request processed as soon as practicable. 5 U.S.C. 552(a)(6)(E)(iii); Daily Caller, 2015 WL at *5. 4

5 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 5 of 10 Here, the RNC did not request expedited processing of its request. 1 Thus, State properly placed the RNC s request in its complex processing track, in which requests are processed on a first-in/first-out basis, and did not unreasonably delay in responding to the request, Pl. s Opp n at 4, by not responding to it before this case was filed, given the thousands of FOIA requests ahead of this request in the queue. Stein Decl Once a FOIA request becomes the subject of litigation, State often prioritizes it. See Daily Caller, 2015 WL at *6. State did so here by taking this request out of line and beginning work on it. As noted above, State completed its search for responsive records, began reviewing the records identified as potentially responsive for responsiveness and processing them for exemptions, and made two rolling productions to the RNC, all within two months of the complaint being filed. II. State s Proposed Production Schedule Is Reasonable State s proposal to continue processing potentially responsive records at a rate of 500 pages per month is reasonable under the circumstances that State s FOIA office currently faces. In Daily Caller, Judge Howell found at the end of last year that the circumstances facing State are sufficiently unusual as to allow for some delayed processing even of expedited FOIA requests WL at*9. The burdens imposed on State have increased over the past six months, with FOIA requests and cases in litigation continuing to rise, particularly as more and more requesters have filed requests for records in advance of the election. As discussed in the attached declaration from the head of State s FOIA office, Eric Stein, State currently has approximately 29,000 pending FOIA requests (as compared to 22,000 at the end of fiscal year 2015) and over 100 FOIA litigation cases (up from the three dozen noted by Judge Howell, Daily Caller, 2015 WL at*9), many of which involve court-ordered 1 In its Opposition, the RNC incorrectly claimed that it filed a request for expedited processing. Pl. s Opp n at 1. 5

6 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 6 of 10 document production schedules. See Stein Decl. 18. Since October 2015 alone, State has received approximately 8,500 new FOIA requests. Id. 37. The process of reviewing and processing these FOIA requests, many of which are complex, is quite involved and timeconsuming. It typically includes searching for responsive records, determining whether records identified as potentially responsive (often through computer key word searches) are in fact responsive to the request, reviewing the records (often line-by-line) to determine whether any information needs to be redacted pursuant to nine FOIA exemptions, consulting within the State Department and other federal agencies about whether to redact information pursuant to exemptions, and preparing the records for release to the requester. Stein Decl For cases in litigation, the work extends to an additional layer of review of records by the Office of the Legal Advisor. Id. 24. At the same time that State s FOIA workload continues to increase dramatically, the funds available to process FOIA requests have remained nearly constant since Fiscal Year Id. 18. The RNC s proposal that State process all 7,000 pages of potentially responsive records well before Election Day this November, Pl. s Opp n at 6, wholly fails to account for the realities of State s burgeoning FOIA workload and all that it entails, resource constraints, and technological limitations, which have been described in filings in other cases and in the media and are further described in Mr. Stein s declaration. Id. 19 (citing Jason Leopold v. U.S. Department of State.1:15-cv RC, First Declaration of Eric F. Stein, February 10, 2016, at 5 (Noting that the Department s FOIA processing system, named FREEDOMS, can be extremely rigid and slow, making the necessary steps in the process more time consuming than one might otherwise expect ); Julian Hattem, State Dept. to release 550 Clinton s over Presidents Day weekend, The Hill, February 10, 2016). 6

7 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 7 of 10 In contrast, State s proposal that it continue to process potentially responsive records at a rate of 500 pages per month, resulting in the production of all responsive, non-exempt records within 14 months, is based on available resources. All of the reviewers who work on FOIA litigation are fully committed to cases currently in litigation. Stein Decl. 13. State is currently subject to court orders in at least 27 other active litigation matters that, in sum, require State to process a minimum of approximately 7,500 pages per month. Id. 28. In addition, the litigation reviewers continue to review documents for release in approximately 23 additional litigation matters in which State is currently still producing documents. Id. Due to competing court deadlines and the part-time nature of reviewer s schedules, reviewer resources are often shifting between cases, and one reviewer could be handling as many as four litigation cases in any given month. Id. Given that State s litigation reviewers are already overcommitted, State currently has only one reviewer available to work on this case. This reviewer, however, is already committed to work on four other cases, including three additional cases brought by the RNC. Id. 16. While State is currently working on assigning a second reviewer to this case, any such reviewer would either be a new reviewer, and therefore expected to process pages at a slower rate, at least initially, or would be part of the Department s group of reviewers who work on non-litigation FOIA work, and therefore already tasked with responding to numerous other FOIA requests. Id. In addition, based on the review that has been completed to date, State anticipates that additional time will be needed to review the documents responsive to the instant FOIA request because those documents cover a wide range of subject matters that implicate equities across the Department. Id. 33. As a result, reviewers in this case have already had to consult Department employees in multiple bureaus in order to properly process documents for release, including 7

8 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 8 of 10 employees within the Bureaus of Western Hemisphere Affairs, European and Eurasian Affairs, East Asian and Pacific Affairs, Near Eastern Affairs, African Affairs, and South and Central Asian Affairs. The number of different bureaus and documents involved in such consultations necessarily increases IPS s review time. Id. In light of all of the foregoing, State estimates that it can feasibly process a total of approximately 500 pages per month for this case. Id. 17, The RNC makes two arguments for a faster rate of production, neither of which is convincing. First, the RNC argues that a contract attorney working in the private sector on civil litigation document review can review 500 pages of documents a day. Pl. s Opp n at 5. RNC s analogy fails, however, because FOIA processing is simply not comparable to private contractor processing in civil litigation. See Stein Decl. 3, 14, State s FOIA review process is more time-consuming and labor intensive than reviewing documents for civil litigation purposes, requiring coordination and consultation with multiple bureaus, offices, and posts, often with employees around the world, let alone other federal agencies. See id. Unlike private sector civil litigation discovery, FOIA requests to State are likely to implicate information related to the national security or foreign relations of the United States. Id. 19. Additionally, State s ability to process records for release is constrained by severe resource limitations as well as the snowballing demands that are being placed on those resources. Id. 3, 13, 18-19, For example, State s ability to increase the number of reviewers is constrained by the availability of existing financial resources and also by the need for reviewers to possess the necessary security 2 It is important to note that processing is not the equivalent of simply reading a document. The amount of time it takes to process a document includes coordination with various bureaus and offices within the Department; the revision of redactions as necessary; and the other processing work that is required to fully prepare documents for public release under the FOIA. A reviewer reads and initially marks redactions on many more documents per month than can be fully processed and released in the same time span. Stein Decl. 10 n.4. 8

9 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 9 of 10 clearances and subject matter expertise to review materials related to U.S. foreign relations and diplomacy that may be responsive to FOIA requests. Id. 30. Second, the RNC claims that it needs the requested records before the election. But that goes for many other requesters and many other requests, many of which were submitted before the RNC s. There are currently 85 other production deadlines the Department must meet prior to November 2016, with an unknown number of additional deadlines still to be scheduled during that time. Id. 36. Many of these productions are in other cases where other plaintiffs have likewise emphasized the need for production before November Id. Nor has the RNC shown a willingness to narrow the scope of its request here in order to expedite its receipt of responsive records. Id Moreover, the RNC s argument that State should accelerate the processing of the records before the presidential election is an impracticable timetable that ignores the realities attendant to processing of a FOIA request like the one at issue here and would cause significant harm to the balancing of FOIA s competing interests. The fact that the records may shed light on a presidential candidate does not outweigh the harm to the public interest that could be caused by compelling disclosure on an impractical timeline, risking inadvertent disclosure of exempt materials that were intended to be protected. See Daily Caller, 2015 WL , at *11. 3 Even if this were not the case, the Court cannot focus on theoretical goals alone, and completely ignore the reality that these agencies cannot possibly respond to the overwhelming number of requests received within the time constraints imposed by FOIA. Cohen v. FBI, 831 F. Supp. 850, 854 (S.D. Fla. 1993); see also Edmond v. United States Attorney, 959 F. Supp. 1, 3 (D.D.C. 1997) (Sporkin, J.) ( Courts have uniformly granted the government reasonable periods of time in which to review FOIA requests when there is a backlog. ); Jiminez v. FBI, 938 F. Supp. 21, 31 (D.D.C. 1996) (quoting Kuffel, 882 F. Supp. at 1127); Ferguson v. FBI, 722 F. Supp. 1137, 1140 (S.D.N.Y. 1989) ( In the D.C. Circuit, courts generally have granted extensions when presented with evidence of an overburdened agency following necessary procedures ) (citations omitted). 9

10 Case 1:16-cv JEB Document 13 Filed 06/27/16 Page 10 of 10 CONCLUSION For all of the reasons set forth above and in the June 16 Joint Status Report, the Court should approve State s proposed production schedule. Dated: June 27, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General MARCIA BERMAN Assistant Director Federal Programs Branch /s/ Jean-Michel Voltaire JEAN-MICHEL VOLTAIRE NYS Bar Trial Attorney U.S. Dept. of Justice Civil Division 20 Mass. Ave., NW Washington, DC (202) phone (202) fax jean.michel.voltaire@usdoj.gov Attorney for Defendant 10

11 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REPUBLICAN NATIONAL COMMITTEE, Plaintiff, v. Civil Action DEPARTMENT OF STATE, Defendant. DECLARATION OF ERIC F. STEIN Pursuant to 28 U.S.C. 1746, I, Eric F. Stein, declare and state as follows: 1. I am the Acting Co-Director of the Office of Information Programs and Services ( IPS ) of the United States Department of State (the Department ) and have served in this capacity since March 21, I am the Department official immediately responsible for responding to requests for records under the Freedom of Information Act (the FOIA ), 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable records access provisions. Prior to serving in this capacity, from April 2013, I worked directly for the Department s Deputy Assistant Secretary ( DAS ) for Global Information Services ( GIS ) and served as a senior advisor and deputy to the DAS on all issues related to GIS offices and programs, which includes IPS. As the Acting IPS Co-Director, I have original classification authority and am authorized to classify and declassify national security information. I make the following statements based upon my personal knowledge, which in turn is based upon information furnished to me in the

12 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 2 of 17 course of my official duties. I am familiar with the efforts of Department personnel to process the subject request, and I am in charge of coordinating the agency s search and recovery efforts with respect to that request. 2. The core responsibilities of IPS include: (1) responding to records access requests made by the public (including under the FOIA, the Privacy Act, and the mandatory declassification review requirements of the Executive Order governing classified national security information), by members of Congress, by other government agencies, and those made pursuant to judicial process such as subpoenas, court orders and discovery requests; (2) records management; (3) privacy protection; (4) national security classification management and declassification review; (5) corporate records archives management; (6) research; (7) operation and management of the Department s library; and (8) technology applications that support these activities. 3. This declaration addresses the issues raised in Plaintiff s June 21, 2016, Brief in Opposition to Defendant s Proposed Production Schedule ( Opposition ). In that Opposition, Plaintiff makes a number of arguments regarding the Department s ability to process records potentially responsive to Plaintiff s request. In response, this declaration explains the numerous steps required to properly process documents for release under FOIA. Further, this declaration details how the Department s ability to process records for release is constrained by finite resources that are subject to increasing demands due to the Department s more than 100 FOIA cases currently in litigation, 1 many of which have overlapping and competing court orders. 1 To be clear, the more than 100 cases currently in litigation involve significantly more than 100 different FOIA requests, as many cases pertain to numerous separate FOIA requests. For instance, at least one current FOIA litigation case involves more than 30 different FOIA requests. 2 Republican National Committee v. U.S. Dep t of State

13 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 3 of 17 SUMMARY OF PLAINTIFF S FOIA REQUEST 4. In a letter dated December 4, 2015, the Republican National Committee ( RNC ) submitted a FOIA request seeking communications between designated Individuals (14 individuals who were State Department employees during former Secretary of State Hillary Clinton s tenure) and 12 designated domains (certain outside accounts). Plaintiff s request covers the time period from January 21, 2009, to February 1, Plaintiff s FOIA request was received by Defendant on December 16, In a letter dated January 27, 2016, the Department acknowledged receipt of the RNC s FOIA request and assigned it Case Control Number F That acknowledgment letter stated that unusual circumstances, including the number and location of Department components involved in responding to the request and the volume of requested records, could arise that would require additional time to process Plaintiff s request. 6. Plaintiff filed the instant action based on the above FOIA request on March 14, 2016, (ECF No. 1) and the Department answered on April 14, 2016 (ECF No. 8). 7. On May 16, 2016, the Department made an initial production of records responsive to Plaintiff s FOIA request. Also on that date, the parties filed a status report reflecting the parties agreement that a second status report with a proposed production schedule would be filed on June 16, 2016 (ECF No. 10). The parties further agreed that the Department would process a minimum of 500 pages of potentially responsive records in this case and make a second production on or before June 16, (ECF No. 10). 8. The Department met its commitment to process 500 pages between May 16, 2016, and June 16, 2016, and made a second production of responsive materials to Plaintiff on June 16, 3 Republican National Committee v. U.S. Dep t of State

14 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 4 of The Department also informed Plaintiff that it had completed its searches in this case and had identified approximately 3,900 documents totaling an estimated 7,000 pages 2 as potentially responsive to Plaintiff s request. The Department offered, consistent with the agreement made in its May 16 status report and due to State s limited resources, of which Plaintiff was already aware, to continue to process 3 those pages at a minimum rate of 500 pages per month and produce them on a rolling basis. RNC rejected this proposal. 9. In the status report filed June 16, 2016 (ECF No. 11), the Department proposed a production schedule reflecting an anticipated processing rate of 500 pages per month, resulting in the production of all responsive records within 14 months. 10. Plaintiff s Opposition claims that the Department has unreasonably delayed in responding to its FOIA request, including during the search and collection process conducted in this case. (Opp. at 3-5). Plaintiff s claims of delay are unwarranted. The FOIA provides for multi-track processing of requests based on the amount of work or time (or both) involved in processing requests. See 5. U.S.C. 552(a)(6)(D). The Department has established three processing tracks: simple, complex, and expedited. The complex request track is used for requests that require multiple searches that are anticipated to locate more voluminous responsive records for review, as in the case at issue. Requests that seek and are granted expedited 2 The Department calculated, based on a combination of industry-standard e-discovery metrics and its own knowledge of the Department s files and practices, including the materials that have been processed to date in this case, that each would have an average length of 1.8 pages. See Lexis Nexis Discovery Services Fact Sheet, available at: (last visited June 1, 2016). 3 Processing means reviewing a document and (1) determining whether it is responsive to the request; (2) referring the document to another agency for consultation, if necessary; or (3) producing the document (with redactions, if appropriate) to Plaintiff; it does not mean that 500 pages will be released to Plaintiff each month. 4 Republican National Committee v. U.S. Dep t of State

15 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 5 of 17 processing are placed in a separate queue. Notably, Plaintiff did not request expedited processing in this case. 11. A large majority of the Department s requests fall into the complex processing track. To ensure that requesters are treated fairly, requests in each track are processed on a firstin/first-out basis. Plaintiff s FOIA request was processed using this methodology. At the time that Plaintiff s FOIA request at issue in this case was received, there were thousands of requests in the complex processing queue ahead of Plaintiff s. 12. Further, the search for and collection of documents at the Department requires coordination and consultation with multiple bureaus, offices, and posts, and often employees around the world. As Plaintiff concedes in its Opposition, the Department has been transparent with Plaintiff as to the status of its search and collection process. (Opp. at 3-4). The Department met each of the commitments made to Plaintiff regarding the completion of its searches for potentially responsive records in this case. 13. All of the Department s reviewers who work on FOIA litigation ( litigation reviewers ) are fully committed to cases currently in litigation, including the one assigned to this case. Based on my analysis of the available figures from past FOIA cases, I estimate that the Department is able to finalize, on average, approximately pages per month per litigation reviewer. The term finalized describes the stage at which documents have had their redactions burned. This estimate therefore takes into account the average amount of time required for IPS to complete any interagency consultation that may be required. Because the Department counts a page as processed once it is referred out for interagency consultation, rather than when the interagency consultation process is completed, I believe that the average number of pages that can be processed per month per reviewer is somewhat higher than pages per month. 5 Republican National Committee v. U.S. Dep t of State

16 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 6 of 17 However, at this time, the Department has not been able to isolate figures that would allow it to calculate the average numbers of pages that can be processed per month per reviewer. We are working to gather more information that will allow the Department to quantify this information going forward. 14. It is important to note that neither finalizing nor processing documents is the equivalent of simply reading a document. The amount of time it takes to process a document includes coordination with various bureaus and offices within the Department; the revision of redactions as may be needed; and the preparation of documents for public release under the FOIA, amongst other work. Any given reviewer in IPS reads and initially marks redactions on up to thousands of pages per month. 4 These pages are then put into the pipeline for processing and finalization, which necessarily occurs at a slower rate than the pace at which documents can be read. 15. The exact rate at which the Department is able to process pages depends heavily on the nature of the request at issue and the content of the documents received in response to the search for the request. 16. The Department currently has one reviewer assigned to work on this case. This reviewer is currently committed to four other cases, including three additional cases brought by the RNC, to which she is currently devoting approximately two-thirds of her time. The Department is currently working to assign a second reviewer to this case; however, any second reviewer who might be available to work on this case would (a) be a litigation reviewer with a similar existing case load; (b) be new to the Department s FOIA litigation office and would likely process pages at a lower than average rate, at least initially; or (c) be part of the 4 The Department likewise does not currently have figures on the average number of pages reviewed per month per reviewer, but is working to try to quantify this information. 6 Republican National Committee v. U.S. Dep t of State

17 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 7 of 17 Department s group of reviewers who work on non-litigation FOIA work and therefore already tasked with responding to numerous FOIA requests. 17. The Department offered to process 500 pages per month and has delivered on this commitment. Any additional commitment cannot honestly be made at this time due to the reasons explained in more detail below. The Department remains committed to the previously offered 500 pages-processed monthly production schedule with an understanding that it may need to leverage additional resources, beyond the one reviewer currently assigned to this case, to meet this commitment. Therefore, the maximum number of pages that the Department estimates it can feasibly process in this case is 500 pages per month, 5 an offer that has been made in good faith to Plaintiff. THE DEPARTMENT S FOIA CASELOAD AND DOCUMENT REVIEW PROCESS 18. Context is crucial in order to understand the Department s position that it is unable to process Plaintiff s FOIA request at a rate higher than 500 pages per month. Over the past several years, the Department s FOIA caseload has greatly increased. In FY 2008, the Department received fewer than 6,000 new FOIA requests; that number of new FOIA requests annually increased, reaching nearly 25,000 in FY 2015 (an increase of over 300%). By the end of Fiscal Year 2015, the Department had nearly 22,000 FOIA requests pending. The Department currently has approximately 29,000 FOIA and Privacy Act requests pending and is engaged is 106 FOIA litigation cases, many of which involve court-ordered document production schedules. 5 Based on its review of potentially responsive documents to date in this case, the Department does not anticipate that the material being reviewed will be overly complex, e.g., involving large amounts of classified material, or will have unusually high page counts per document. Its estimated ability to process 500 pages per month in this case is based on its expectation that this trend will continue. 7 Republican National Committee v. U.S. Dep t of State

18 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 8 of 17 At the same time that the Department s FOIA caseload is increasing dramatically, the funds available to process FOIA requests have remained nearly constant since Fiscal Year Plaintiff s Opposition fails to account for the realities of the Department s technological and resource limitations, which have been described in detail in other public filings and in the media. See, e.g., Jason Leopold v. U.S. Department of State.1:15-cv RC, First Declaration of Eric F. Stein, February 10, 2016, at 5 (Noting that the Department s FOIA processing system, named FREEDOMS, can be extremely rigid and slow, making the necessary steps in the process more time consuming than one might otherwise expect ); Julian Hattem, State Dept. to release 550 Clinton s over Presidents Day weekend, The Hill, February 10, For instance, Plaintiff cites to multiple publications that discuss the industry-recognized standard for contract attorneys hired by private sector entities. (Opp. At 5). The veracity of Plaintiff s statements regarding non-foia document reviews conducted by private sector entities is beyond my knowledge. However, my understanding is that the comparison between private sector standards for civil discovery and a FOIA suit against the Department of State, which has the potential to implicate information related to the national security, 6 is inappropriate, as the Department has previously argued in other cases. See Citizens United v. U.S. Department of State 1:15-cv EGS, Declaration of John F. Hackett, September 21, 2015 at (noting that Plaintiff, who argued that the State Department s ability to process FOIA documents should be measured against the standards of private companies and law firms engaging in e-discovery wrongly fail[ed] to account for the realities of the Department s technological limitations or the need, unique to the federal government, to engage in interagency consultation in order to protect information relevant to the national security). Based 6 Precisely for this reason, the Department s ability to process pages expediently is tempered by the need to avoid the risk of the inadvertent disclosure of exempt materials. 8 Republican National Committee v. U.S. Dep t of State

19 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 9 of 17 on my knowledge of the FOIA process, as well as the statute and guidelines that shape that process, I can confidently state that the FOIA review process is both unique and complex. 20. IPS commences its review process upon the receipt of potentially responsive materials from bureaus, offices, and posts throughout the Department. Because IPS s document review system, known as FREEDOMS 2 (or F2 ) cannot ingest most forms of electronic data, most of the potentially responsive records must be printed (if they were provided to IPS in an electronic format) and then scanned into F2. Each document is assigned a unique identification number, and an IPS employee manually inputs certain bibliographic data associated with each document, including the date, to, from, and subject line (if available). IPS then assigns those documents for review to an IPS employee (a reviewer ) who has the appropriate security clearance and subject matter expertise to handle that set of documents Plaintiff contends that the Department has proposed an unreasonably slow review and production schedule. (Opp. at 5). But the FOIA review process, as required by statute, is in fact quite involved. Upon receiving an assigned set of potentially responsive documents, the reviewer performs a line-by-line review of the document to determine whether the document is responsive to the request, whether it contains any classified or other sensitive information that must be withheld under one of the nine FOIA exemptions, and whether it contains information belonging to other federal agencies. These determinations each require a 7 As described infra, and has been extensively litigated in other cases, Plaintiff s attempt to compare State Department FOIA reviewers to private-sector contract attorneys reviewing documents in civil discovery is egregiously inapt. Because of the sensitive nature of the Department s work and its implications for national security, the requirements for reviewers are rigorous. See Leopold v. Department of State, 1:15-cv RC, Third Declaration of John Hackett, October 13, 2015, at 10 (Noting that reviewers are required to have substantial experience and subject matter expertise in order to be able to evaluate the risks of public release of State Department records, determine whether referrals to State bureaus or other agencies are necessary, and make final release determinations. Reviewers must have deep knowledge of State s programs, policies, and objectives, as well as of various public pronouncements by government officials, to effectively evaluate records for public release and protect U.S. government equities ). 9 Republican National Committee v. U.S. Dep t of State

20 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 10 of 17 careful assessment of the document s contents. Quite unlike the review of documents outside of the FOIA context, this assessment often includes whether the release of information would potentially harm U.S. national security or damage relations with a foreign country. 22. During this process, the reviewer may consult other Department employees (including, for example, employees in regional bureaus with additional subject matter expertise or attorneys, particularly for cases in litigation). These consultations often occur more than once in the process and are extremely important. The bureaus being consulted are the most knowledgeable parties concerning contemporary issues, including the sensitivity of the documents or the subject matter therein. For instance, certain documents may concern the views or activities of individuals who could suffer reprisals if their identities or opinions are revealed. The documents may also reflect certain policies, activities, or other information of a heightened sensitivity to U.S. foreign relations. Consequently, IPS requires its reviewers to clear documents that were created within the previous five years and contain substantive information with the relevant bureaus prior to finalizing release determinations. 23. Next, if the reviewer determines that a document originated with the Department, but contains another federal agency s information (or equities ), an IPS employee will send that document to the relevant federal agency for consultation. While these consultations are to be conducted with all practicable speed, the Department has a very limited ability to control the pace of that consultation process. 8 If the reviewer determines that a document originated with another federal agency, s/he redacts any Department information that must be withheld under the 8 Due in large part to this inability to control the response time from other agencies, the Department counts towards its page processing commitments the referral of pages out to another agency for consultation rather than the completion of that inter-agency consultation. 10 Republican National Committee v. U.S. Dep t of State

21 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 11 of 17 FOIA, and the document is sent to that federal agency for review and direct reply to the requester. 24. Finally, for cases that are in litigation, documents proposed for release must be reviewed by attorney-advisers within the Office of the Legal Adviser, a process that often involves consultations between the attorney-adviser and IPS as well as with other Department offices. 25. After completing the internal and external consultation processes, 9 the reviewer redacts any information that must be withheld under the FOIA and marks the documents that the Department will release in full or in part with the required stamps, indicating the release determinations and FOIA exemptions applied. Once this process is completed, the Department provides those documents to the requester with an explanatory cover letter, including whether the requester should expect to receive additional release determinations from the Department in the future or whether the Department s response to the request is complete. 26. At this point in time, the Department engages the services of approximately 71 either full- or part-time retired Foreign Service Officers 10 to serve as subject matter experts in reviewing potentially responsive documents for Department equities, to make inter-agency consultations, and to apply appropriate FOIA exemptions to protect exempt information. Fifteen of these reviewers are dedicated to IPS s FOIA litigation, while the remaining are assigned to 9 The legally mandated need for such consultations is, to my knowledge, unique to the federal government, and unlike more streamlined processes that may be available in private sector document production and/or litigation. See 5 U.S.C. 552(a)(6)(B)(iii)(III)(2006) amended by OPEN Government Act of 2007, Pub. L. No , 121 Stat (acknowledging the need for consultation, in processing a FOIA request, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein ). 10 Each of these retired Foreign Service hours has an individual work schedule varying from 16 to 40 hours per week. The exact number of reviewers is in flux at any given point in time, as many of these reviewers work schedules vary throughout the calendar year. 11 Republican National Committee v. U.S. Dep t of State

22 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 12 of 17 work on the approximately 29,000 FOIA requests that are not in litigation ( non-litigation reviewers ). 27. Due to the growing number of cases in active litigation, the Department has been assigning some non-litigation reviewers to litigation cases on an ad-hoc basis in order to meet the demands of various court ordered production schedules. Today, more than 80 percent of these non-litigation reviewers are being used to do work on litigation cases to meet existing production deadlines required by court orders. This reallocation of resources severely detracts from the Department s ability to process the non-litigation cases that account for more than 99 percent of the Department s current FOIA workload. In fact, reassigning so many individuals to work on FOIA requests in litigation lengthens the time needed to respond to requests that are not in litigation and in turn may lead to additional FOIA litigation cases being brought against the Department. 28. The Department is currently subject to court orders in at least 27 of its active litigation matters that, in sum, require the Department to process a minimum of approximately 7,500 pages per month. The Department reasonably anticipates that new court-ordered production schedules will continue to be imposed in coming months. In addition, the litigation reviewers continue to review documents for release in the approximately 23 additional litigation matters in which the Department is currently still producing documents. Due to competing Court deadlines and the part-time nature of reviewer s schedules, reviewer resources are often shifting between cases, and one reviewer could be handling as many as four litigation cases in any given month. 29. As the above numbers show, the Department s litigation reviewers are already overcommitted, and the Department is close to having committed all of its non-litigation 12 Republican National Committee v. U.S. Dep t of State

23 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 13 of 17 reviewers to at least some litigation work. Accordingly, the Department has a very limited capacity to commit to additional page minimums in any case. Here, the Department is willing to commit to 500 pages per month based on its current estimation of the complexity of this review and its reviewer resources. The Department s ability to commit to a page processing minimum in any case will continue to be driven by these and other factors, as every FOIA request and every document review is different. 30. IPS s ability to increase the number of reviewers is constrained by the availability of existing financial resources and also by the need for reviewers to possess the necessary security clearances and subject matter expertise to review materials related to U.S. foreign relations and diplomacy that may be responsive to FOIA requests. (See supra n. 4.) IPS cannot determine, based on a request alone, whether any potentially responsive material collected for review will be classified. Moreover, pursuant to its authority under Executive Order 13526, IPS may determine to classify information responsive to a FOIA request (for example, IPS may determine that certain unmarked information or information marked unclassified must be classified at the confidential or secret level). Finally, F2 operates on a classified network, which requires any reviewers using the system to hold a security clearance of at least the SECRET level. Consequently, IPS reviewers must have clearances because they cannot know from the outset whether they will be handling classified information and because they need the clearances to operate in F2, the document review system. 31. Because of the increase in both FOIA requests and litigation, IPS is under a significant strain as employees struggle to keep up with the increase in FOIA requests and FOIA litigation cases. For the past few years, many employees have worked overtime and on weekends in an effort to meet statutory and court-imposed deadlines. 13 Republican National Committee v. U.S. Dep t of State

24 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 14 of 17 STATE S REVIEW OF DOCUMENTS POTENTIALLY RESPONSIVE TO PLAINTIFF S FOIA REQUEST 32. Plaintiff asserts that the Department has acknowledge[d] that it does not believe many of the responsive records are subject to interagency consultation. (Opp. at 4). This is not the case. Each individual document must be reviewed before the Department can determine whether that document requires further consultation. As stated in the June 16, 2016, status report, the Department did previously inform Plaintiff that it believed a large number of potentially responsive records might be categorically subject to interagency consultation. Upon additional review and discussion, the Department determined that this was not the case. However, the Department has taken no position as to how many individual documents in this case will ultimately require interagency consultation. 33. Based on the review that has been completed to date, the documents responsive to Plaintiff s FOIA request cover a wide range of subject matters that implicate equities across the Department. As a result, reviewers in this case have already had to consult Department employees in multiple bureaus in order to properly process documents for release, including employees within the Bureaus of Western Hemisphere Affairs, European and Eurasian Affairs, East Asian and Pacific Affairs, Near Eastern Affairs, African Affairs, and South and Central Asian Affairs. The number of different bureaus and documents involved in such consultations necessarily increases IPS s review time. 34. Plaintiff is currently engaged in four other litigations against the Department that involve a total of 14 different FOIA requests. In each of these cases, Plaintiff has emphasized its need to obtain records before the election. The Department has been processing a combined total 14 Republican National Committee v. U.S. Dep t of State

25 Case 1:16-cv JEB Document 13-1 Filed 06/27/16 Page 15 of 17 of approximately 750 pages per month for Plaintiff across three of those litigations. 11 A production schedule in this case that reflects the Department s commitment to process 500 pages per month would bring the total combined number of pages currently being processed for RNC per month to Despite emphasizing the urgency with which it needs to receive responsive records, Plaintiff s initial FOIA request did not seek expedited processing. Further, Plaintiff has never offered to negotiate alternative means of getting responsive materials to them more quickly. Plaintiff has instead refused to narrow the scope of its request or provide search terms to reduce the volume of potentially responsive records for IPS to review, which could provide a feasible route to obtaining the records it seeks prior to the election. 36. There are already at least 85 other production deadlines for FOIA cases in litigation that the Department must meet prior to the November 2016 presidential election, with an unknown number of additional deadlines still to be scheduled during that time. 12 Many of these productions are in other cases where different plaintiffs have likewise emphasized the need for production before November Further, while the Department is leveraging its resources first and foremost to comply with each of the existing court orders that have been issued in FOIA litigation cases to date, the Department is also working to address in a timely manner the extremely high number of FOIA requests not in litigation, many of which also seek information by specific deadlines, including deadlines before November The Department has contested the Plaintiff s FOIA requests in the fourth of those cases as unreasonably burdensome and has filed a motion for summary judgment in that case. See Republican National Committee v. United States Department of State, 16-cv ABJ (D.D.C. 2016), ECF No Of course, the Department s litigation-related production commitments continue long after November Republican National Committee v. U.S. Dep t of State