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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`______________________________
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`JASON LEOPOLD, )
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`Plaintiff,
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`NATIONAL SECURITY AGENCY,
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`Defendant.
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`______________________________)
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`DEFENDANT’S MOTION TO STAY PROCEEDINGS
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`Defendant National Security Agency (“NSA”), through
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`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.
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`Respectfully submitted,
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`CHANNING PHILLIPS,
`D.C. Bar # 415793
`United States Attorney
`for the District of Columbia
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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 2 of 33
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`DANIEL F. VAN HORN,
`D.C. BAR # 924092
`Chief, Civil Division
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` /s/ Marina Utgoff Braswell
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`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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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 3 of 33
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`______________________________
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`JASON LEOPOLD, )
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`Plaintiff,
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`v.
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`NATIONAL SECURITY AGENCY,
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`Defendant.
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`______________________________)
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`MEMORANDUM IM SUPPORT OF DEFENDANT’S MOTION TO STAY PROCEEDINGS
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`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
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`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.
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`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
`The NSA’s FOIA Request Processing System
`A.
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`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. The third queue is for requests that
`are in litigation. This established “multi-track” system
`ensures that all requesters are treated equitably by
`concurrently processing requests within each queue on a “first-
`in, 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-by-
`page, 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. Id. at ¶ 29.
`B.
`Plaintiff’s FOIA Request
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`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.”
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`The request included instructions to:
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`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,
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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.”
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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. A.
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`On September 22, 2014, the FO contacted NSA’s OIG for
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`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.
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`By reply email on September 24, 2014, the FO contacted
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`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. Id. at Ex. C.
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`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.
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`On June 21, 2016, the FO tasked NSA’s OIG to search for
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`documents responsive to plaintiff’s request. The OIG’s search
`returned approximately 8,488 pages of potentially responsive
`documents. Id. at ¶ 11.
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`By letter dated September 15, 2016, the FO advised
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`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.
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`By email dated September 23, 2016 plaintiff responded that
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`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.
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`By letter dated October 18, 2016, the FO requested
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`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. Id. at ¶
`15. To date, the FO has received no payment of estimated fees
`from plaintiff, and therefore stopped processing this request.
`Id. at ¶ 14.
`Case No. 79825
`2.
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`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.”
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`The request included instructions to:
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`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.”
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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. H.
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`By letter dated December 02, 2014, the FO acknowledged
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`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.
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`On September 21, 2016, the FO began processing this case.
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`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
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`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.”
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`The request included instructions to:
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`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.
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`By letter dated October 13, 2016, the FO acknowledged
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`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.
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`On November 17, 2016, plaintiff filed the instant
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`litigation.
`C.
`Search for Responsive Documents
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`The NSA has conducted searches to identify documents
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`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.
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`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.
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`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
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`1.
`Volume and Complexity of Requests
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`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
`
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`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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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 20 of 33
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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. Id. at ¶
`39.
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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 21 of 33
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`2.
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`Workflow Management, Limited FOIA Resources, and
`Litigation Demands
`
`Despite best efforts, some requests become the subject of
`judicial complaints. Currently NSA has approximately 18 pending
`FOIA litigations. 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. Some of
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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 22 of 33
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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. Id. at ¶ 42.
`3.
`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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`Case 1:16-cv-02258-ACR Document 10 Filed 03/06/17 Page 23 of 33
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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
`
`Legal Standard For a Stay of Proceedings
`A.
`An agency receiving a FOIA request generally must determine
`whether to comply with the request within 2
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