Open Society Justice Initiative v. Department of Defense
- Jesse Furman
- 1:20-cv-05096
- U.S. District Court · Southern District of New York
- 4
In Open Society Justice Initiative v. Department of Defense, Judge Furman ordered agencies to increase their monthly processing of COVID-19 FOIA requests.
Open Society Justice Initiative and the twelve federal agencies covered by the minimum processing plan, including the Department of Defense and other named agencies, were affected by the required monthly processing schedule.
What happened
Open Society Justice Initiative v. Department of Defense concerns requests for records about the federal government’s response to the COVID-19 pandemic under the Freedom of Information Act. The requests covered fourteen federal agencies, and an earlier agreement set minimum monthly processing rates for twelve of them.
Open Society Justice Initiative asked the court to require most agencies to process 2,000 pages per month immediately, with a different temporary schedule for the U.S. Indo-Pacific Command. The agencies opposed that request, arguing that the proposed rates were impracticable because of pandemic restrictions, increased requests, and limited resources.
Judge Jesse M. Furman ordered a dynamic processing plan. Each agency had to begin at the previously agreed rate and then increase its rate by 50 percent each month until reaching 2,000 pages per month; the Food and Drug Administration received a separate schedule. The court also allowed the parties to seek further relief if circumstances affecting processing changed.
The detailed version
- Open Society Justice Initiative v. Department of Defense · No. 1:20-cv-05096
- Jesse Furman
- Dec. 15, 2020
Background
Open Society Justice Initiative sought records from fourteen federal agencies concerning the federal government’s response to the COVID-19 pandemic under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The agencies included the Food and Drug Administration, Department of Defense, Department of Health and Human Services, Centers for Disease Control and Prevention, and Central Intelligence Agency. The opinion notes that the requests to the Central Intelligence Agency were being addressed through separate summary-judgment proceedings and were excluded from the processing plan at issue here.
On December 3, 2020, the court approved a stipulation establishing minimum processing rates for twelve agencies. The plan required different agencies to process between 20 records or 60 pages and 500 pages per month, with the Food and Drug Administration required to process between 200 and 270 pages per month in December 2020 and January 2021 and 1,400 pages per month afterward. The parties also agreed on dates when the agencies would begin production.
Parties’ Positions
Open Society Justice Initiative asked the court to require each agency covered by the plan to begin processing 2,000 pages of responsive records per month immediately. It proposed that the U.S. Indo-Pacific Command process 750 pages per month in December 2020 and January 2021 and then increase to 2,000 pages per month beginning in February 2021. The organization relied on its requests for expedited processing under 5 U.S.C. § 552(a)(6)(E) and argued that the pandemic-related requests were sufficiently urgent and important.
The agencies opposed the proposed rates. They argued that the rates were not practicable and that they were working diligently while the requests were placing substantial demands on their resources. The court found that both sides presented compelling arguments: the pandemic involved heightened national importance and urgency, while pandemic-related work restrictions made the requested rates practically difficult to meet.
Ruling
Judge Jesse M. Furman ordered a dynamic processing plan rather than immediately imposing the requested rates. In the first month after the agreed start dates, each agency had to process the number of pages specified in the minimum plan. In each later month, each agency had to increase its processing rate by 50 percent until reaching 2,000 pages per month. For example, the Department of Defense was required to process 500 pages in the first month, 750 in the second, and 1,125 in the third.
The court preserved the parties’ separate schedule for the Food and Drug Administration: 200 to 270 pages per month in December 2020 and January 2021, 1,400 pages per month beginning in February 2021, and 2,000 pages per month beginning in March 2021. The parties were required to inform the court about changes that could affect the agencies’ ability to meet the rates, and any party could seek appropriate relief if circumstances changed.
The court acknowledged that the plan would burden the agencies but concluded that those burdens were necessary to comply with Congress’s goal of broad and timely FOIA disclosure. The order did not decide the separate summary-judgment proceedings involving the Central Intelligence Agency.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.