Case 1:16-cv-00048-RC Document 12 Filed 06/29/16 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS UNITED, INC.,

Plaintiff,

Civil Docket No. 16-cv-48 (RC)

v.

U.S. DEPARTMENT OF STATE,

Defendant.

DEFENDANTS MOTION FOR AN EXTENSION

The U.S. Department of State (State), by and through its undersigned counsel,
respectfully moves for an extension of time of twenty-seven months to complete production of
responsive, non-exempt portions of approximately fourteen thousand pages of emails and
attachments to Plaintiff.

State has determined that Plaintiffs FOIA requests involve

significantly more material, which is significantly more complicated, than the parties had
originally anticipated. In support of this motion, Defendant states as follows.
1.

This case arises under the Freedom of Information Act (FOIA). Plaintiff has

submitted six separate FOIA requests to State, seeking emails sent or received by four current or
former State employees Michael Fuchs, Melanne Verveer, Cheryl Mills, and Huma Abedin
to or from individuals associated with the Clinton Foundation and Teneo Holdings.
2.

On March 18, 2016, in response to this Courts minute order issued on March 8,

2016, State identified approximately 6,082 documents that were potentially responsive to
Plaintiffs six FOIA requests.
3.

At the time, State estimated that it is likely that a much smaller number of

documents will end up being responsive. ECF No. 8, at 2. In coming to this assessment, State

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had reviewed 300 of the above-identified 6,082 documents, and found that only 126 were
responsive to Plaintiffs requests. See id. Plaintiff agreed with States initial assessment that the
total number of actually responsive numbers will be much lower. See ECF No. 9, at 2 (Plaintiff
believes it is likely that the final percentage of documents that are responsive will end up being
far lower as the more documents that are sampled, the more documents should end up being
duplicative, especially in the case of the back-and-forth email chains that Plaintiff seeks.).
4.

On March 24, 2016, this Court entered a scheduling order, directing State to make

initial productions of responsive documents on April 22, 2016, May 23, 2016, and June 21, 2016,
and to complete its production of responsive documents to Plaintiff on or before July 21, 2016.
ECF No. 10, at 1-2.
5.

This Court also ordered State to complete its responsiveness review on or before

May 17, 2016. See id. at 1.

6.

As it began processing these documents, however, State determined that the

volume of responsive materials was much greater than initially estimated because its initial
search had inadvertently excluded potentially responsive materials. As explained in greater
detail in the attached Declaration of Eric F. Stein, Acting Co-Director of the Office of
Information Programs and Services (IPS) for State (the Stein Declaration), during the course
of its review, the Department discovered errors in the manner in which the searches had been
conducted in order to capture documents potentially responsive to Plaintiffs requests.
Specifically, it found that one office had not conducted the search by keyword, but rather had
only searched the To and From line of the latest e-mail in an e-mail communication, a method
that would not capture responsive e-mails found only in older communications that were part of
an e-mail chain. This led the Department to conduct a new search to ensure that all responsive

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material was captured. Stein Decl. 23. That search resulted in 34,116 potentially responsive
documents. Id. Upon completing that search, IPS then conducted a document-by-document
responsiveness review. Id. 24. The result of that review, which indicated 5,883 responsive
documents, was reported to this Court as ordered on May 17, 2016. See ECF No. 11, at 2; see
also Stein Decl. 24 n.3.
7.

Furthermore, after that status report was filed, State also learned that some

attachments to responsive e-mails were inadvertently marked as non-responsive. . . . [and] [a]s a

result, IPS is currently re-running this responsiveness review in order to ensure that no
responsive e-mail attachments were missed. Stein Decl. 25. In order to do so, as explained in
Mr. Steins Declaration, IPS must manually open and review every e-mail with an attachment
amongst the 34,116 potentially responsive emails in order to determine whether any responsive
attachments had inadvertently been omitted. Id. State deeply regrets these errors, and is working
diligently to correct them as quickly as possible. See Muhammad v. U.S. Customs & Border
Protection, 559 F. Supp. 2d 5, 8 (D.D.C. 2008) ([W]hat is expected of a law-abiding agency is
that it admit and correct error when error is revealed.) (quoting Meeropol v. Meese, 790 F.2d
942, 953 (D.C. Cir. 1986)); see also Stein Decl. 21.
8.

Considering material already released, and pending the identification of any

additional attachments as identified above, State estimates that it has 13,679 pages remaining to
review. Id. 26.
9.

State is reviewing these materials as quickly as possible. In doing so, however, it

is constrained by the availability of qualified, cleared, reviewers. As further explained in the

Stein Declaration, State engages the services of approximately 71 part-time, retired Foreign
Service Offices, some of whom have served as Ambassadors, to serve as subject matter experts

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in reviewing potentially responsive documents for Department equities. Stein Decl. 17.
However, only 15 of these part-time reviewers are dedicated to IPSs FOIA litigation, while the
remaining are assigned to work on the approximately 29,000 FOIA requests that are not in
litigation. Id. 18. Because of the growing number of cases in active litigation, State 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, and currently, more than 80 percent of
non-litigation reviewers are working on litigation cases. Id.
10.

States ability to increase the number of reviewers is further limited by its budget,

id. 20, which has remained largely flat over the last several years, despite the fact that its
FOIA caseload has greatly increased, id. 11. States ability to expand its reviewer pool is
also limited 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. Id. 20.
11.

Even when State is able to find and assign new reviewers, as it has done for this

case, it still takes time for these reviewers to gain expertise, and even when they gain experience,
they must split their time across multiple cases. State has assigned 4 new part-time reviewers to
this case. Id. 26. Most of these reviewers are also working on multiple other cases. Id. 26
n.4. However, States ability to review materials has been hindered by the relative inexperience
of these reviewers. Because [t]hese initial reviewers are new and are still receiving training on
the application of FOIA and Privacy Act Exemptions, Executive Order 13526, and other relevant
statutes and regulations, and on the use of F2[,] . . . . these reviewers are not able to review
documents as quickly as those who are more experienced. Id. Furthermore, because these
reviewers are inexperienced, their work must be reviewed by a senior reviewer, an additional

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step that also slows the pace of review. Id.; see also id. 16 (If the reviewer completing this
process is relatively inexperienced then his or her work must undergo second-level review by a
senior reviewer to ensure that FOIA exemptions were properly applied to the document and
consultations with relevant Department bureaus and federal agencies occurred.).

That

bottleneck is further compounded by the fact that the two part-time senior reviewers who are
splitting those duties are both working on several other cases as well as spending time training
IPSs new litigation reviewers. Id. 26.
12.

Furthermore, in this case in particular, the substantive review process is

challenging given the wide-ranging subject matters covered by the documents at issue in this
case. Id. 25. The documents implicate subject areas governed by multiple different bureaus
within the State Department, all of which must be consulted before materials may be released.
Id. State must also consult with other agencies within the U.S. Government. Id. Moreover,
because Plaintiffs requests cover communications with outside organizations, State must consult
with such outside organizations if the organizations confidential business information is at issue.
Id.
13.

State is working diligently to meet the Courts production deadline. However, in

light of the fact that the volume of materials at issue in these six FOIA requests is significantly
higher than either the Plaintiff or Defendant originally anticipated, see ECF No. 8, at 2; ECF No.
9, at 2, as well as the limitations of reviewer capacity, and the complexity of the review process
that are discussed in Mr. Steins Declaration, IPS is unable to meet its current deadline of July
21, 2016, Stein Decl. 30.
14.

Based on the FOIA and Privacy Act demands IPS is currently facing, the limited

number of part-time reviewers currently working on litigation, the fact that many of those part-

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time reviewers, including those working on this case, are inexperienced, and the bottleneck
caused by limited senior reviewer capacity, State estimates that it can review records for
releasability in this case at a rate no faster than 500 pages per month. See Stein. Decl. 27.
15.

State thus requests an extension of its deadline to complete production to October

20, 2018. State regrets that it is not able to produce all responsive, non-exempt records by July
21, 2016.
16.

Pursuant to Local Civil Rule 7(m), undersigned counsel has consulted with

Plaintiffs counsel, who represented that Plaintiff opposes this motion.

Dated: June 29, 2016

Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
CHANNING D. PHILLIPS
United States Attorney for the District of Columbia
ELIZABETH J. SHAPIRO
Deputy Director
/s/ Joseph E. Borson___
JOSEPH E. BORSON
Trial Attorney (Virginia Bar No. 85519)
U.S. Department of Justice,
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone: (202) 514-1944
Facsimile:
(202) 616-8460
E-mail:
joseph.borson@usdoj.gov
Counsel for the Defendant

Case 1:16-cv-00048-RC Document 12 Filed 06/29/16 Page 7 of 7

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 29, 2016, I have electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, which will send a notification of electronic
filing to the parties.
/s/ Joseph E. Borson
JOSEPH E. BORSON