Rolling Stone, LLC v. Department of Justice

Background

Rolling Stone renewed its motion to compel the Department of Justice to seek an Open America stay. An Open America stay is additional time for a government agency to respond to a Freedom of Information Act request when exceptional circumstances exist and the agency is exercising due diligence. The Department opposed the motion.

The court had previously denied Rolling Stone’s motion as moot based on its understanding that the Department would be ready to begin summary-judgment briefing by December 2024. At an August 8, 2024 status conference, however, the Department estimated that production would take approximately 12 to 14 months, or until sometime between August and October 2025. The court then allowed Rolling Stone to renew its motion.

Rolling Stone also reported that other Freedom of Information Act requests sought the same documents and that the Federal Bureau of Investigation had not told Rolling Stone whether expedited processing had been granted for those requests. The court noted that Rolling Stone had not shown an entitlement to correspondence about requests for which it was not the requester.

Legal standard

The court distinguished between an agency’s required determination and its later production of records. Under the Freedom of Information Act, an agency generally must determine within 20 days whether it will produce responsive records and must explain that determination. In unusual circumstances, the agency may receive an additional 10 days. If the agency misses those deadlines, the requester may proceed in federal court, where the agency may obtain additional time by showing exceptional circumstances and due diligence.

A determination does not require immediate production of the records. The agency must at least identify the records it will produce and the records it plans to withhold under exemptions. By contrast, the statute does not set a fixed deadline for producing non-exempt records; it requires that they be made available promptly. Courts may intervene if production is unreasonably delayed.

Under Open America, exceptional circumstances may exist when an agency receives far more requests than Congress anticipated, lacks enough resources to meet the statutory deadlines, and is processing requests diligently. The court explained that an Open America stay addresses a failure to make the required determination, not simply the time needed to complete production after the agency has begun reviewing and producing documents.

Court’s analysis

The Department had not moved for an Open America stay. The court held that Rolling Stone had not shown facts requiring the Department to seek one because Rolling Stone did not claim that the Department had failed to make the required determination. The Department was reviewing and producing documents responsive to Rolling Stone’s request, and Rolling Stone’s complaint concerned only the fact that production was not complete.

The court characterized Rolling Stone’s motion as a request to expedite production rather than a request to compel an Open America motion. The court noted that it has discretion to set a reasonable processing rate and may require faster processing in appropriate circumstances. It also observed that moving one request ahead of others can delay requests that may have a stronger need for expedited treatment.

The Department had committed to processing approximately 500 pages per month. The court described that rate as fairly standard. The court also noted that Rolling Stone expressly said it was not asking the court to order a particular processing rate or to deny a possible Department motion to proceed at 500 pages per month. The court therefore concluded that Rolling Stone’s letter presented no complaint for which the court could grant relief.

Disposition

The court denied Rolling Stone’s motion and directed the Clerk of Court to close Docket No. 25. The opinion did not state that the underlying Freedom of Information Act dispute was resolved on the merits.