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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-CV-20830-MOORE/Elfenbein

MORDECHAI KORF, et al.,

Plaintiffs,

UNITED STATES
DEPARTMENT OF STATE,

Defendant.
____________________________/

REPORT AND RECOMMENDATION ON PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on Plaintiffs Mordechai Korf and Uriel Laber’s
(“Plaintiffs”) Motion for Summary Judgment (the “Motion”), ECF No. [13], and Defendant United
States Department of State’s (“Defendant”) Consolidated Response in Opposition and Cross -
Motion for Summary Judgment, ECF No. [28]. The Honorable K. Michael Moore referred this
matter to the undersigned for a Report and Recommendation on all dispositive matters. See ECF
No. [4]. Having carefully reviewed Plaintiffs’ Motion, Defendant’s Response and Cross-Motion,
Plaintiffs’ Reply, the record, the Parties’ supporting declarations and exhibits, and the applicable
law, the undersigned RECOMMENDS that Plaintiffs’ Motion for Summary Judgment, ECF No.
[13], be GRANTED, and that Defendant’s Cross-Motion for Summary Judgment, ECF No. [28],
be DENIED.

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I. INTRODUCTION
A. Overview
This case centers on a dispute arising under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. See ECF No. [1] at ¶1. At the heart of the dispute lies Defendant’s alleged failure
to timely search for, review, and produce non-exempt records responsive to Plaintiffs’ November
29, 2022 FOIA request concerning, among other things, the nationalization of PrivatBank in
Ukraine, alleged misconduct relating to PrivatBank, various individuals and entities, and records
specifically relating to Plaintiffs the mselves. See id. at ¶¶ 36-37. Although Defendant
acknowledged receipt of Plaintiffs’ FOIA request, it denied Plaintiffs’ request for expedited
processing, and placed the request in its “complex” processing track. See ECF Nos. [28] at 6 and
[28-1] at ¶11. Defendant further advised Plaintiffs that it would be unable to comply with FOIA’s
statutory response deadline due to “unusual circumstances.” Id. Despite the passage of more than
two years following submission of the FOIA request, Defendant produced no records prior to the
commencement of this litigation. See ECF No. [27] at 2.
On February 21, 2025, Plaintiffs filed the instant action asserting three FOIA claims against
Defendant: (1) failure to conduct an adequate search under 5 U.S.C. § 552(a)(3)(C) (Count I); (2)
failure to respond within FOIA’s statutory timeframe under 5 U.S.C. § 552(a)(6)(A)(ii)-(iii) and §
552(a)(6)(B) (Count II); and (3) failure to disclose non-exempt records under 5 U.S.C. § 552(a)(3)
(Count III). See ECF No. [1] at 9- 10. Pursuant to the Court’s Order Setting Procedures and
Deadlines in FOIA Cases, Plaintiffs filed their Motion for Summary Judgment seeking judgment
in their favor on all three FOIA claims , arguing that Defendant violated FOIA by ( 1) failing to
conduct an adequate search, ( 2) failing to respond within the statutory timeframe , and ( 3)
withholding non-exempt records. See ECF No. [13] at 13-17. Plaintiffs specifically ask the Court
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to order Defendant to produce all responsive, non- exempt records within six months or,
alternatively, at a rate of 5,000 pages per month. Id. at 17. Defendant then filed its Response and
Cross-Motion, arguing that it conducted an adequate search, that untimeliness alone does not
entitle Plaintiffs to substantive relief, and that its standard processing rate of 300 pages per month
is reasonable. See ECF No. [28] at 11- 20. Plaintiffs have since filed their Reply . See ECF No.
[31]. The Parties’ cross-motions are fully briefed and ripe for review.
B. Factual Background
On November 29, 2022, Plaintiffs submitted a FOIA request to Defendant seeking records
concerning themselves and the nationalization of PrivatBank in Ukraine. See ECF No. [1] at ¶¶36-
37. Plaintiffs requested expedited processing of that FOIA request. See id. The request contained
seven separate subparts and sought documents and communications dating back to 2014 or 2015,
depending on the category of records requested. See id. The first subpart sought documents and
communications relating to or discussing the nationalization of PrivatBank in Ukraine from 2015
to the present. See id. at 37(a). The second subpart requested documents and communications
relating to or discussing potential fraud, insider dealing, or misconduct in PrivatBank in Ukraine
from 2014 to the present. See id. at 37(b). The third and fourth subparts sought documents and
communications relating to or discussing Ihor Kolomoisky and Gennadiy Boholiubov from 2014
to the present. See id. at 37(c) -(d). The fifth and sixth subparts requested documents and
communications relating to or discussing Plaintiffs from 2014 to the present. See id. at 37(e)-(f).
And t he seventh subpart sought documents and communications relating to multiple entities,
including Optima Ventures, LLC, Optima Acquisitions, LLC, Optima Specialty Steel, Inc.,
Zaporozhye Ferroalloy Plant, Joint Stock Company Nikopol Ferroalloy Plant, and several
additional entities identified in the request. See id. at 37(g).
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By letter dated December 8, 2022, Defendant acknowledged receipt of Plaintiffs’ FOIA
request and assigned it Case Control Number F-2023-02587. See ECF No. [28] at 6. In that same
letter, Defendant denied Plaintiffs’ request for expedited processing, explaining that the request
did not demonstrate a “compelling need” for the requested information. See id. Defendant also
advised Plaintiffs that it would be unable to respond within FOIA’s 20- working-day statutory
period because “unusual circumstances” appl ied. I d. Defendant identified those unusual
circumstances as including “ the need to search for and collect requested records from other
Department offices or Foreign Service posts.” I d. Defendant thereafter placed Plaintiffs’ FOIA
request in its “complex” processing track. Id.
On December 8, 2022, that same day, a member of the Department’s FOIA intake team
determined that the Bureau of European and Eurasian Affairs (“EUR”) and the Department’s
eRecords Archive were reasonably likely to contain responsive records. See ECF No. [28-1] at 7.
The intake team then tasked EUR and the FOIA Search Team to conduct searches for documents
responsive to Plaintiffs’ request. See id. On December 21, 2022, an employee in EUR’s Office
of Eastern European Affairs searched an individual electr onic drive and the office’s shared drive
on the unclassified network and located 27 potentially responsive records. Id. On December 22,
2022, an analyst on the FOIA Search Team conducted an initial search of eRecords on the
Department’s unclassified and classified networks and reported 6,721 potentially responsive
records. See id. After those initial searches, Plaintiffs’ request was placed in the queue of pending
complex FOIA requests awaiting assignment to an IAP/FCP analyst for responsiveness review.
See id. Defendant admits that, based on the date Plaintiffs’ request entered the complex FOIA
queue and the number of requests ahead of it, Plai ntiffs’ request was not assigned to an IAP/FCP
analyst for subsequent action before Plaintiffs filed this lawsuit in February 2025. See id.
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Plaintiffs eventually filed this action on February 21, 2025, after more than two years had
passed without any production of responsive records. See ECF Nos. [1] at 1 and [27] at 2. As
noted above, Plaintiffs’ Complaint asserts three claims under FOIA against Defendant for failure
to conduct an adequate search for responsive records under 5 U.S.C. § 552(a)(3)(C) , failure to
respond within FOIA’s statutory timeframe, and failure to disclose non-exempt responsive records.
See generally ECF No. [1].
After Plaintiffs filed suit, Defendant transferred the request to the litigation arm of the
Department’s FOIA processing unit. See ECF No. [28] at 7-8. Defendant represents that it
received Plaintiffs’ FOIA Complaint on February 24, 2025 and that, on the next day, February 25,
2025, the FOIA case was assigned to a FOIA analyst on the litigation team within IAP/LA. See
ECF No. [28-1] at 7. On March 5, 2025, the FOIA analyst, the analyst’s supervisor, an Attorney-
Adviser from the Department’s Office of the Legal Adviser, and a FOIA senior reviewer met to
discuss a strategy for processing Plaintiffs’ FOIA request. See ECF No. [28-1] at 7-8. As a result
of that meeting, Defendant determined that supplemental searches of EUR and the eRecords
Archive were required and that the Bureau of Economic and Business Affairs (“EB”) should also
be tasked with conducting a search. See ECF No. [28-1] at 8. Defendant tasked EUR and EB on
March 6, 2025, and EUR located 40 potentially responsive records while EB located 8 potentially
responsive records. See id.
On April 25, 2025, Defendant conducted additional searches of the eRecords Archive. See
id. Defendant ran separate searches for each of the seven subparts of Plaintiffs’ request to facilitate
potential narrowing of the request. See id. Defendant used search terms corresponding to the
subject matter of each subpart, including terms relating to PrivatBank nationalization, fraud,
insider dealing, misconduct, Ihor Kolomoisky, Gennadiy Boholiubov, Mordechai Korf, Uriel
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Laber, and the entities listed in subpart seven. See id. at 8-9. Defendant used a date range of
January 1, 2014 through November 29, 2022 for those searches. See ECF No. [28-1] at 9.
The April 2025 searches yielded a substantial volume of potentially responsive records
broken down as follows:
• For subpart one, Defendant identified 10,743 potentially responsive documents on
the unclassified network and 1,987 potentially responsive documents on the
classified network. See id. at 9.
• For subpart two, Defendant identified 8,027 potentially responsive documents on
the unclassified network and 1,922 potentially responsive documents on the
classified network. See id.
• For subpart three, Defendant identified 31,380 potentially responsive documents
on the unclassified network and 14,852 potentially responsive documents on the
classified network. See id.
• For subpart four, Defendant identified 6,353 potentially responsive documents on
the unclassified network and 40 potentially responsive documents on the classified
network. See id.
• For subpart five, Defendant identified 981 potentially responsive documents on the
unclassified network and 30 potentially responsive documents on the classified
network. See id.
• For subpart six, Defendant identified 1,009 potentially responsive documents on
the unclassified network and 158 potentially responsive documents on the classified
network. See id.
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• For subpart seven, Defendant identified 2,362 potentially responsive documents on
the unclassified network and 248 potentially responsive documents on the classified
network. See id.
Taken together, Defendant’s April 2025 searches identified more than 80,000 potentially
responsive documents. See ECF No. [28] at 8- 9. Defendant represents that those search results
were preliminary approximations of potentially responsive records rather than a final universe of
responsive documents. See ECF No. [28-1] at 10. Defendant explains that because it ran separate
searches for each subpart, records containing search terms from multiple subparts may have been
counted more than once. See id. Defendant further explains that the preliminary results likely
included duplicate records and non- responsive records that would be removed during
responsiveness review. See id.
After Defendant communicated the April 2025 search results to Plaintiffs, Defendant asked
Plaintiffs to consider narrowing their request. See ECF No. [28] at 9. Plaintiffs declined
Defendant’s suggested narrowing proposals but asked Defendant to prioritize the two subparts
seeking records about Plaintiffs themselves. See ECF No. [28] at 10. Defendant agreed to
prioritize subparts five and six. See id. On May 28, 2025, Defendant advised Plaintiffs that it
would process records at a rate of 450 pages every six weeks, which equates to approximately 300
pages per month. See id. Defendant characterizes that rate as its standard processing rate for FOIA
requests. See ECF No. [28] at 9, 14.
Defendant subsequently made its first production on July 24, 2025. See ECF No. [28-1] at
10. Defendant’s production letter stated that the Department had identified 14 responsive records
subject to FOIA, releasing 8 records in full and 6 records in part, and considered the foreseeable
harm standard when applying FOIA exemptions. See ECF No. [32- 1] at 2. Defendant’s letter
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further stated that all non-exempt material reasonably segregable from exempt material had been
released. See id.
As of August 21, 2025, Defendant represented that responsiveness review, productions to
Plaintiffs and de-duplication had reduced the potentially responsive universe for subparts five and
six to approximately 156 documents, consisting of approximately 2,767 pages. See ECF No. [28-
1] at 10. Defendant further represented that it anticipated completing production of records
responsive to subparts five and six in approximately six months. See id. Defendant stated that,
after completing subparts five and six, it would proceed to process the remaining subparts of
Plaintiffs’ request. Id.
II. LEGAL STANDARDS
A. General Summary Judgment Standard
A court may grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). An issue is genuine if “a reasonable trier of fact could return judgment for
the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008). A fact is material if it “would affect the outcome of the suit under the governing
law.” Id. “The mere existence of a scintilla of evidence in support of” the non- moving party’s
position is insufficient; instead, “there must be evidence on which the jury could reasonably find
for the” non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a motion for summary judgment, the Court must view the facts in the light most
favorable to the non- moving party and draw all reasonable inferences in that party’s favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). “Even when the parties agree on the basic
facts, summary judgment is inappropriate if reasonable minds might differ on the inferences to be
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drawn from those facts.” Carlin Commc’n, Inc. v. S. Bell Tel. & Tel. Co. , 802 F.2d 1352, 1356
(11th Cir. 1986). The Court “may not weigh conflicting evidence to resolve disputed factual
issues; if a genuine dispute is found, summary judgment must be denied.” Id. ; see also Skop v.
City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007).
B. FOIA Framework
FOIA’s “fundamental principle” is “public access to Government documents.” John Doe
Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). FOIA reflects the premise that citizens have
a right to know what their government is doing. See F la. Immigrant Advoc. Ctr. v. U.S. Dep’t of
State, No. 09- CV-22689-MORENO, 2010 WL 11601021, at *2 (S.D. Fla. Apr. 8, 2010) . (“The
purpose of FOIA ‘is to encourage public disclosure of information so citizens may understand
what their government is doing.’”) (citation omitted). FOIA is therefore “primarily an access and
disclosure statute.” St. Andrews Park, Inc. v. U.S. Dep’t of Army Corps of Eng’rs , 299 F. Supp.
2d 1264, 1267 (S.D. Fla. 2003) (quoting Ely v. F.B.I. , 781 F.2d 1487, 1489-90 (11th Cir. 1986)).
“It provides for wide-ranging citizen access to government documents and presumes them subject
to disclosure absent a clear showing to the contrary.” Id.
To effectuate those purposes, FOIA requires federal agencies to make agency records
“promptly available” to any person who submits a proper request, unless the records fall within
one of FOIA’s statutory exemptions. 5 U.S.C. § 552(a)(3)(A). FOIA also imposes strict timing
requirements. See 5 U.S.C. § 552(a)(6)(A)(i). An agency generally must determine within 20
working days “after the receipt of any such request” whether it will comply with the request and
must immediately notify the requester of its determination, the reasons for that determination, and
the requester’s right to appeal any adverse determination. 5 U.S.C. § 552(a)(6)(A)(i).
To make a legally sufficient “determination,” an agency must do more than merely
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acknowledge receipt of a request or place the request in a processing queue. Citizens for Resp. &
Ethics in Washington v. Fed. Elec . Comm’n, 711 F.3d 180, 188 (D.C. Cir. 2013). Rather, the
agency must at least “gather and review the documents,” “determine and communicate the scope
of the documents it intends to produce and withhold, and the reasons for withholding any
documents,” and “inform the requester that it can appeal whatever portion of the ‘determination’
is adverse.” Id. at 188; accord Villanueva v. U.S. Dep’t of Justice, No. 19-CV-23452, 2021 WL
5882995, at *3 n.4 (S.D. Fla. Dec. 13, 2021). FOIA permits limited extensions in “unus ual
circumstances.” 5 U.S.C. § 552(a)(6)(B). As the D.C. Circuit explained in Citizens for Resp . &
Ethics in Washington:
To summarize: An agency usually has 20 working days to make a
“determination” with adequate specificity, such that any
withholding can be appealed administratively. 5 U.S.C. §
552(a)(6)(A)(i). An agency can extend that 20- working-day
timeline to 30 working days if unusual circumstances delay the
agency’s ability to search for, collect, examine, and consult about
the responsive documents. Id. § 552(a)(6)(B). Beyond those 30
working days, an agency may still need more time to respond to a
particularly bur densome request. If so, the administrative
exhaustion requirement will not apply. But in such exceptional
circumstances, the agency may continue to process the request, and
the court (if suit has been filed) will supervise the agency’s ongoing
progress, ensuring that the agency continues to exercise due
diligence in processing the request. Id. § 552(a)(6)(C).
Citizens for Resp. & Ethics in Washington, 711 F.3d at 189.
Although FOIA does not require an agency to physically produce all responsive records at
the same moment it communicates its determination, the statute does not permit an agency to delay
production indefinitely after the determination is made. See id. at 188-89. FOIA gives an agency
“some additional time to physically redact, duplicate, or assemble for production the documents
that it has already gathered and decided to produce.” Id. at 189. But the agency must still make
the records “promptly available.” Id. “Promptly available,” though context dependent, “typically
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would mean within days or a few weeks of a ‘determination,’ not months or years.” Id. at 188;
see also Scott v. Internal Revenue Serv. , No. 18-CV-81750, 2021 WL 2882014, at *9 (S.D. Fla.
July 9, 2021) (same).
If an agency fails to comply with FOIA’s timing requirements, the requester is deemed to
have constructively “exhausted administrative remedies. ” 5 U.S.C. § 552(a)(6)(C)(i). The
agency’s failure to meet FOIA’s deadline does not, standing alone, automatically entitle the
requester to summary judgment on every FOIA claim. See Jacobs v. BOP, 725 F. Supp. 2d 85, 89
(D.D.C. 2010) (“The [Agency’s] untimely response does not entitle plaintiff to judgment in his
favor.”); Schmidt v. Shah, No. 08-2185, 2010 WL 1137501, at *10 (D.D.C. Mar. 18, 2010) (“[A]
lack of timeliness or compliance with FOIA deadlines does not preclude summary judgment for
an agency, nor mandate summary judgment for the requester.” ) (citations omitted). B ut that
principle does not leave courts powerless when an agency’s delay is prolonged, unexplained, or
inconsistent with FOIA’s disclosure obligations. See Villanueva, 2021 WL 5882995, at *3.
Indeed, “unreasonable delays in disclosing non -exempt documents violate the intent and
purpose of the FOIA, and the courts have a duty to prevent [such] abuses.” Payne Enters., Inc. v.
United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (quoting Long v. IRS, 693 F.2d 907, 910 (9th
Cir. 1982)); see also Villanueva, 2021 WL 5882995, at *3 ( same). Accordingly, “broader
injunctive relief is appropriate to enforce FOIA provisions,” including relief designed “to prevent
lengthy delays.” Ray v. U.S. Dep’t of Justice, 770 F. Supp. 1544, 1551 (S.D. Fla. 1990). A court
may therefore use its equitable authority to require an agency to process records according to a
court-imposed schedule. See Long, 693 F.2d at 910; Clemente v. F BI, 71 F. Supp. 3d 262, 267
(D.D.C. 2014); Villanueva, 2021 WL 5882995, at *3.

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III. DISCUSSION
“Generally, FOIA cases should be handled on motions for summary judgment, once the
documents in issue are properly identified.” Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir. 1993).
In FOIA litigation, an agency is entitled to summary judgment only if the record shows there is no
genuine dispute of material fact and the agency demonstrates that each requested record “either
has been produced,” is not subject to FOIA, “or is wholly exempt” from disclosure. Fla. Immigrant
Advocacy Ctr. v. Nat’l Sec. Agency, 380 F. Supp. 2d 1332, 1336-37 (S.D. Fla. 2005). An agency
may rely on affidavits or declarations to satisfy its burden, so long as those submissions provide
an adequate factual basis for the Court’s determination. See Del Rio v. Miami Field Office of the
FBI, No. 08-CV-21103, 2009 WL 2762698, at *6 (S.D. Fla. Aug. 27, 2009) (“ FOIA litigation is
amenable to resolution on summary judgment. Use of declarations or affidavits to meet the
government’s burden in such cases is appropriate so long as the decla rations are specific and
detailed enough to provide the necessary information needed for the court to make a decision.”).
Agency declarations are generally afforded “ a presumption of good faith. ” Del Rio , 2009 WL
2762698, at *6; see also Fla. Immigrant Advocacy Ctr., 380 F. Supp. 2d at 1343. The agency’s
declarations, however, must be sufficiently detailed and non- conclusory to permit the Court to
evaluate the adequacy of the agency’s efforts and the lawfulness of any withholding or delay. See
Miccosukee Tribe, 516 F.3d at 1248.
In the search context, the agency must show that it conducted a search reasonably
calculated to “uncover all relevant documents.” Id. Agency declarations may satisfy that burden
if they describe, in reasonable detail, the files searched, the search methods used, and why those
methods were “reasonably calculated to locate” responsive records. Ray v. U.S. Dep’t of Justice,
908 F.2d 1549, 1558 (11th Cir. 1990); Miccosukee Tribe, 516 F.3d at 1248 (same).
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In the production-delay context, however, the analysis is different. Even if the agency’s
search is adequate, FOIA still requires the agency to process and produce non-exempt responsive
records “promptly.” 5 U.S.C. § 552(a)(3)(A); Citizens for Resp. & Ethics in Washington, 711 F.3d
at 188-89. A production schedule that would delay disclosure for months or years may be
inconsistent with FOIA’s requirement that non -exempt records be made “promptly available.”
Citizens for Resp. & Ethics in Washington, 711 F.3d at 188. Thus, where an agency has identified
responsive records but proposes a processing rate that would substantially postpone disclosure, the
Court may evaluate whether the proposed rate is reasonable in light of factors, including the scope
of the request, the agency’s resources and competing obligations, the agency’s diligence in
processing the request, and the effect of the proposed schedule on both the requester and other
pending FOIA matters. See Harrington v. Food & Drug Admin., 581 F. Supp. 3d 145, 150 (D.D.C.
2022); Colbert v. FBI, No. 16-CV-1790 (DLF), 2018 WL 6299966, at *3 (D.D.C. Sept. 3, 2018);
Clemente, 71 F. Supp. 3d at 267.
The governing legal framework, therefore, requires the Court to address the three FOIA
claims separately. As to Count I, the Court must determine whether the agency’s declarations and
search efforts demonstrate an adequate search. As to Count II, the Court must determine whether
the record establishes Defendant failed to make a timely FOIA determination within the statutory
timeframe. A nd a s to Count III, the Court must determine whether Defendant’s continued
withholding of non- exempt responsive records through its proposed production schedule is
reasonable under FOIA or whether injunctive relief and a court -imposed production schedule are
necessary to prevent further delay.

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A. Count I – Adequacy of Search
Starting with Count I, Plaintiffs first argue that Defendant violated FOIA by failing to
conduct an adequate search responsive to Plaintiffs’ November 29, 2022 FOIA request. See ECF
No. [13] at 13. Defendant responds that its searches were reasonably calculated to uncover
responsive records and that the searches performed were supported by detailed agency declarations
describing the methods employed. See ECF No. [28] at 11-13. Upon careful review of the record,
the Court recommends that summary judgment be entered in Plaintiffs’ favor on Count I.
FOIA requires federal agencies, upon receipt of a proper request, to conduct searches
reasonably calculated to uncover responsive records and to make those records “promptly
available” to the requester. 5 U.S.C. § 552(a)(3)(A). It further requires that “an agency shall make
reasonable efforts to search for the records in electronic form or format, except when such efforts
would significantly interfere with the operation of the agency’s automated information system.”
5 U.S.C. § 552(a)(3)(C). An agency bears the burden of demonstrating that its search efforts were
adequate under the circumstances. See Miccosukee Tribe, 516 F.3d at 1248. To satisfy that
burden, the agency must provide affidavits or declarations that are “relatively detailed,
nonconclusory and submitted in good faith.” Ray, 908 F.2d at 1558; Miccosukee Tribe, 516 F.3d
at 1253.
Importantly, however, FOIA’s obligations extend beyond the mere mechanical act of
running search terms through agency databases. See Citizens for Resp. & Ethics in Washington,
711 F.3d at 188. Under FOIA, an agency must make a “determination” within the statutory
timeframe, which requires the agency to “gather and review the documents,” determine what it
will produce or withhold, and communicate that determination to the requester. Id . Thus, an
agency does not satisfy FOIA merely by conducting a cursory preliminary retrieval of potentially
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responsive records while leaving those records entirely unreviewed for years thereafter. See id. at
188. The text of the statute further supports this interpretation as it defines the term “search” as
follows: “to review, manually or by automated means, agency records for the purpose of locating
those records which are responsive to a request.” 5 U.S.C. § 552(3)(D) (emphasis added). Thus,
a search alone is not enough — there must also be some amount of review of the documents within
the determination period.
Here, Defendant’s own declarations establish that although preliminary searches were
conducted in December 2022, no review or processing of the resulting records occurred until after
Plaintiffs initiated this litigation more than two years later. See ECF No. [28- 1]. Specifically,
Defendant represents that on December 21, 2022, an employee within EUR searched certain
electronic drives and located 27 potentially responsive records. See id. at ¶13. Defendant further
represents that on December 22, 2022, an analyst searched its classified and unclassified eRecords
systems and identified approximately 6,721 potentially responsive records. See id. at ¶14.
Defendant admits, however, that after those preliminary retrieval efforts, Plaintiffs’ request
“was not assigned to an IAP/FCP analyst for subsequent action by the time Plaintiffs initiated this
litigation in February 2025.” Id. at ¶14. Defendant further admits that the records identified in
December 2022 remained unreviewed while Plaintiffs’ request sat in its “complex” queue for more
than two years. Id. Indeed, Defendant concedes that proper processing efforts did not begin until
after litigation commenced and the request was transferred to its litigation -processing unit in
February 2025. See id. at ¶¶15-19.
The Court finds Plaintiffs’ argument persuasive that such conduct does not constitute an
adequate FOIA search within the meaning of the statute. See 5 U.S.C. § 552(a)(3)(C). As Plaintiffs
correctly observe, “[s]earching for records does not mean typing a few words into a search engine
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and then, for years, not reviewing any of the documents that hit on search terms.” ECF No. [31]
at 11 ; see also Citizens for Resp . & Ethics in Washington, 711 F.3d at 188- 89. Defendant’s
interpretation would effectively permit an agency to satisfy FOIA merely by generating
preliminary search results while indefinitely postponing review, responsiveness determinations,
exemption analysis, and production obligations. That interpretation cannot be reconciled with
FOIA’s requirement that agencies both conduct adequate searches and “make the records promptly
available.” 5 U.S.C. § 552(a)(3)(A).
Nor does the Court find Defendant’s reliance on post-litigation searches sufficient to defeat
summary judgment on Count I. Defendant’s briefing primarily defends the adequacy of the
searches conducted after Plaintiffs filed suit in 2025. See ECF No. [28] at 11-13. But Plaintiffs’
claim concerns Defendant’s failure to conduct an adequate search during the more than two- year
period preceding litigation. See generally ECF No. [1]. Defendant’s post-litigation efforts do not
negate the undisputed fact that no analyst reviewed the initially identified records and no
meaningful processing occurred for years after the FOIA request was submitted. Defendant’s
Cross-Motion for Summary Judgment and supporting declarations wholly fail to explain why the
substantially more robust searches and review efforts undertaken after litigation commenced could
not have been performed during the more than two-year period following submission of Plaintiffs’
FOIA request. Indeed, Defendant offers no meaningful explanation as to why the searches
ultimately conducted in 2025 — including the expanded searches across classified and unclassified
systems, the use of refined search terms, the assignment of analysts, the responsiveness review,
and the coordinated processing efforts among Department personnel — could not have been
initiated when the FOIA request was first received in November 2022. This absence of explanation
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further undermines Defendant’s position that it exercised the diligence and good- faith effort
required under FOIA.
To the contrary, t he dramatic expansion of the responsive universe following the 2025
searches supports Plaintiffs’ position regarding the adequacy of the pre-suit search. Defendant’s
initial December 2022 search identified approximately 6,721 potentially responsive records. See
ECF No. [28- 1] at ¶14. Yet Defendant’s subsequent post -litigation searches yielded more than
80,000 potentially responsive records across classified and unclassified systems. See ECF No.
[28-1] at ¶18. Although Defendant attributes that increase in part to duplicate records and broader
search parameters, the substantial discrepancy nevertheless undermines Defendant’s contention
that the initial pre-litigation search process was reasonably calculated to uncover responsive
records in a legally adequate manner.
The Court is also mindful that FOIA “is primarily an access and disclosure statute”
designed to promote broad public access to government records. See St. Andrews Park, Inc., 299
F. Supp. 2d at 1267. Permitting an agency to satisfy FOIA’s search obligations through
preliminary, unreviewed retrieval efforts followed by years of inactivity would undermine FOIA’s
central purpose and effectively nullify the statute’s timing and disclosure requirements. As such,
because the material facts are undisputed regar ding Defendant’s wholesale failure to review or
process the records identified during its initial pre -litigation searches, the Court concludes that
Plaintiffs are entitled to summary judgment on Count I. Conversely, because Defendant has failed
to establish — as a matter of law — that its pre-litigation search efforts satisfied FOIA’s adequacy
requirements, the Court concludes that Defendant is not entitled to sum mary judgment on Count
I. Accordingly, I respectfully RECOMMEND that Plaintiffs’ Motion for Summary Judgment BE
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GRANTED as to Count I. I further RECOMMEND that Defendant’s Cross -Motion for
Summary Judgment BE DENIED as to Count I.
B. Count II – Failure to Respond Within the Statutory Timeframe
Plaintiffs next argue that Defendant violated FOIA by failing to comply with FOIA’s
mandatory timing requirements. The Court agrees.
FOIA imposes specific statutory deadlines on federal agencies responding to requests for
agency records. Under 5 U.S.C. § 552(a)(6)(A)(i), an agency must determine within twenty (20)
working days after receipt of a FOIA request “whether to comply with such request” and must
immediately notify the requester of that determination, the reasons therefor, and the requester’s
right to appeal any adverse determination. Although FOIA permits agencies to extend that period
in cases involving “unusual circumstances,” such extensions are limited and do not relieve the
agency of its obligation to exercise due diligence and make records promptly available. See 5
U.S.C. § 552(a)(6)(B); Citizens for Resp. & Ethics in Washington, 711 F.3d at 188-89.
As explained by the D.C. Circuit in Citizens for Resp . & Ethics in Washington, a proper
FOIA “determination” requires more than a perfunctory acknowledgment letter or mere placement
of a request into a processing queue. Id. at 188. Rather, to make a lawful determination, the
agency must at minimum: “(i) gather and review the documents; (ii) determine and communicate
the scope of the documents it intends to produce and withhold, and the reasons for withholding
any documents; and (iii) inform the requester that it can appeal whatever portion of the
‘determination’ is adverse.” Id. Although FOIA does not necessarily require simultaneous
production of responsive records at the moment the determination issues, the statute nevertheless
requires agencies to “make the records promptly available.” Id. at 188- 89; 5 U.S.C. §
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552(a)(3)(A). And “promptly available” generally means “within days or a few weeks,” not
“months or years.” Id. at 188.
The record here establishes, without genuine dispute, that Defendant failed to comply with
those statutory obligations. Plaintiffs submitted their FOIA request on November 29, 2022. See
ECF No. [13] at 5. Defendant acknowledged receipt of the request on December 8, 2022, denied
expedited processing, invoked “unusual circumstances,” and placed the request in its “complex
processing track.” See ECF Nos. [28] at 6 and [28-1] at ¶11. Defendant further advised Plaintiffs
that additional time would be required because the request implicated searches across multiple
Department offices and systems. See ECF No. [28] at 6.
Despite that initial communication on December 8, 2022, Defendant never (even years
later) provided Plaintiffs with its “ determination” as to whether it would compl y with the FOIA
request and its reasons for that determination. Indeed, the only “determination” that Defendant
made was to deny expedited processing at the department level ( then again on appeal ).
Defendant’s December 8, 2022 letter in which it denied the expedited processing request, availed
itself of the “ unusual circumstances” safety valve, and then placed the request in the “ complex
processing track” was not a “determination” at all — at least not in the way FOIA contemplates.
See Citizens for Resp. & Ethics in Washington, 711 F.3d at 187 (“The agency cannot make the
requisite ‘determination’ by simply stating its future intent to produce some non- exempt
documents.”).
Defendants’ submissions further support t his conclusion. Indeed, Defendant admits that
no records were produced to Plaintiffs between December 2022 and the filing of this action in
February 2025 — a period exceeding two years. See ECF Nos. [27] at 2 and [28- 1] at ¶14.
Defendant further concedes that Plaintiffs’ request “was not assigned to an IAP/FCP analyst for
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subsequent action by the time Plaintiffs initiated this litigation in February 2025.” ECF No. [28-
1] at ¶ 14. Defendant attributes that delay to the Department’s FOIA backlog and Plaintiffs’
placement in the “complex” queue. Id.
These facts are dispositive as to Count II. Whatever operational difficulties Defendant may
face, FOIA does not permit an agency to leave a request effectively dormant for more than two
years without completing review, making a substantive determination, or producing responsive
records. See Citizens for Resp . & Ethics in Washington, 711 F.3d at 188- 89; Scott, 2021 WL
2882014, at *9 (recognizing that FOIA requires records to be made “promptly available” and that
excessive delays contravene the statute’s requi rements). Nor does the invocation of “unusual
circumstances” under § 552(a)(6)(B) authorize indefinite delay. The statute expressly
contemplates continued judicial supervision where agencies require additional time beyond the
statutory period. See 5 U.S.C. § 552(a)(6)(C); Citizens for Resp . & Ethics in Washington, 711
F.3d at 189.
Defendant argues that untimeliness alone does not automatically entitle a FOIA requester
to substantive relief. See ECF No. [28] at 13. Defendant is correct insofar as courts have
recognized that mere violation of FOIA’s timing provisions does not automatically require
judgment in the requester’s favor in every circumstance. See Jacobs , 725 F. Supp. 2d at 89;
Schmidt, 2010 WL 1137501, at *10. But Defendant’s reliance on those authorities is misplaced
here.
Plaintiffs do not merely seek recognition of constructive exhaustion of administrative
remedies. Nor do Plaintiffs rely solely on a technical violation of FOIA’s deadlines. Rather,
Plaintiffs seek declaratory and injunctive relief based on Defendant’s concession and undisputed
failure to timely review, determine, and produce responsive records over a period exceeding two
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years. See ECF Nos. [13] and [28-1] at ¶¶14-15. The present record establishes far more than a
brief procedural delay or isolated statutory violation. Defendant’s own declarations demonstrate
that Plaintiffs’ request remained effectively stagnant in the Department’s queue until litigation
forced reassignment to the Department’s litigation-processing unit. ECF No. [28-1] at ¶¶14-15.
Indeed, the Court has already expressed concern regarding Defendant’s lack of diligence
in this matter. See ECF No. [27]. In denying Defendant’s prior motion to stay, the Court observed
that Defendant had “failed to provide processing records to demonstrate that it is actually following
its claimed first-come, first-served policy,” and further found that Defendant’s delays reflected “a
lack of diligent effort to process Plaintiffs’ request in a timely manner.” ECF No. [27] at 11- 12.
Defendant has not meaningfully rebutted those concerns in the present summary judgment record.
The Court further notes that Defendant’s mere processing efforts appear to have
accelerated only after Plaintiffs commenced this litigation. Defendant admits that Plaintiffs’
request was transferred to the Department’s litigation-processing division after the Complaint was
filed in February 2025. See ECF No. [28-1] at ¶15. Defendant thereafter conducted supplemental
searches in or around April 2025 and made its first production on July 24, 2025. See id. at ¶¶17-
19. While those later efforts may bear on the appropriate scope of equitable relief, they do not
erase Defendant’s undisputed statutory noncompliance during the preceding two-year period. See
Citizens for Resp. & Ethics in Washington, 711 F.3d at 188- 89; Scott, 2021 WL 2882014, at *9.
FOIA’s central purpose is to ensure prompt public access to government records and prevent
agencies from indefinitely postponing disclosure obligations. See John Doe Agency , 493 U.S. at
151; Fla. Immigrant Advoc. Ctr., 2010 WL 11601021, at *2. Allowing an agency to acknowledge
a request, place it in a queue, and then leave it unreviewed for years without meaningful action
would substantially undermine FOIA’s statutory framework and purpose.
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Accordingly, because no genuine dispute of material fact exists regarding Defendant’s
failure to comply with FOIA’s statutory timing requirements, the Court concludes that Plaintiffs
are entitled to summary judgment on Count II. Conversely, Defendant has failed to establish as a
matter of law that its handling of Plaintiffs’ request complied with FOIA’s timing and diligence
obligations. Accordingly, I respectfully RECOMMEND that Plaintiffs’ Motion for Summary
Judgment BE GRANTED as to Count II. I further RECOMMEND that Defendant’s Cross-
Motion for Summary Judgment BE DENIED as to Count II.
C. Count III – Failure to Disclose Non-Exempt Records
Plaintiffs finally contend that Defendant is unlawfully withholding non- exempt records
through an unreasonably slow production schedule. The Court cannot disagree.
FOIA requires agencies not only to conduct adequate searches and make timely
determinations, but also to “make the records promptly available to any person” upon receipt of a
proper request. 5 U.S.C. § 552(a)(3)(A). The statute further authorizes district courts “to enjoin
the agency from withholding agency records and to order the production of any agency records
improperly withheld.” 5 U.S.C. § 552(a)(4)(B). Courts have repeatedly recognized that
“unreasonable delays in disclosing non- exempt documents violate the intent and pur pose of the
FOIA, and the courts have a duty to prevent such abuses.” Payne Enters., 837 F.2d at 494 (quoting
Long, 693 F.2d at 910); see also Ray, 770 F. Supp. at 1551 (recognizing that “broader injunctive
relief is appropriate to enforce FOIA provisions” and to prevent lengthy delays); Villanueva, 2021
WL 5882995, at *3 (same).
Courts possess broad equitable discretion in FOIA cases to establish reasonable production
schedules and supervise ongoing agency compliance. See Clemente, 71 F. Supp. 3d at 268-69;
Long, 693 F.2d at 910; Villanueva, 2021 WL 5882995, at *5. Indeed, where an agency’s proposed
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processing schedule would effectively postpone disclosure for years, courts routinely intervene
and impose court-supervised production timelines. See Citizens for Resp. & Ethics in Washington,
711 F.3d at 189 (explaining that courts may supervise an agency’s ongoing progress where
additional time is required beyond FOIA’s statutory deadlines); Clemente, 71 F. Supp. 3d at 269
(“A court therefore may use its equitable powers to require the agency to process documents
according to a court-imposed timeline.”).
The determination of a reasonable production schedule is highly context -specific and
requires balancing multiple competing considerations, including: the size and complexity of the
request; the agency’s overall FOIA burden; competing requests pending before the agency;
staffing and resource limitations; national security or classified -review concerns; the public and
private interests implicated by disclosure; the agency’s prior diligence in processing the request;
and the practical effect of the proposed pr oduction schedule. See Colbert, 2018 WL 6299966, at
*3; Harrington, 581 F. Supp. 3d at 150; Middle E. Forum v. U.S. Dep’t of Homeland Sec., 297 F.
Supp. 3d 183, 185 (D.D.C. 2018).
Here, Defendant argues that its standard processing rate of approximately 300 pages per
month — or 450 pages every six weeks — is reasonable in light of the Department’s FOIA
backlog, staffing limitations, classified-review obligations, and competing litigation demands. See
ECF No. [28] at 14-20. Defendant further contends that substantially accelerated processing risks
inadvertent disclosure of exempt or classified material and would unfairly prejudice other FOIA
requesters awaiting processing. See id. at 17-19.
The Court recognizes Defendant’s concerns. Courts appropriately afford substantial
deference to agencies regarding logistical burdens, allocation of limited resources, classified-
review obligations, and the risk of inadvertent disclosures involving sensitive government
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information. See Protect Democracy Project v. U.S. Dep’t of Defense, 263 F. Supp. 3d 293
(D.D.C. 2017); Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 14 (D.D.C. 2015); Baker v.
Consumer Fin. Prot. Bureau, No. 18-2403, 2018 WL 5723146, at *5 (D.D.C. Nov. 1, 2018). The
Court is also mindful that federal courts “must be sensitive to an Executive Branch agency’s ability
to expend public funds or to reallocate its workforce” and cannot simply order agencies to “hire
more people” or procure additional resources. 2005 Robert Julien Fam. Del. Dynasty Trust v. IRS,
No. 23-CV-80756, 2024 WL 678134, at *2 (S.D. Fla. 2024).
Nevertheless, on the present record, Defendant’s proposed production schedule is
unreasonable as a matter of law. First, the timeline in this case is extraordinary. Plaintiffs
submitted their FOIA request on November 29, 2022. See ECF No. [13] at 5. Defendant produced
no records whatsoever for more than two- and-a-half years. See ECF No. [27] at 2. Defendant’s
first production did not occur until July 24, 2025 and even then, Defendant released only eight
records in full and six records in part, processing merely approximately 450 pages from a universe
exceeding 80,000 potentially responsive records. See ECF Nos. [28] at 9 and [28-1] at ¶19. Such
delay substantially exceeds what courts have recognized as “prompt” disclosure under FOIA. See
Citizens for Responsibility & Ethics in Washington , 711 F.3d at 188 (explaining that “promptly
available” generally means “within days or a few weeks,” not “months or years”).
Second, Defendant’s proposed production pace would effectively prolong disclosure for
an extraordinary period of time. While Defendant takes issue with Plaintiffs’ precise calculations
regarding the ultimate production timeline, Defendant does not dispute that its searches identified
tens of thousands of potentially responsive documents across classified and unclassified systems.
See ECF Nos. [28] at 8-9 and [28-1] at ¶18. Even accounting for duplication and non-responsive
records, Defendant acknowledges that the responsive universe remains substantial. See id. Under
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Defendant’s proposed processing rate of approximately 300 pages per month, production would
likely continue for decades. Indeed, Defendant has identified approximately 80,000 documents in
response to word searches. Even if each document were only 1 page in length, it would take
Defendant 266.66 months ( or 22.22 years ) to review and produce the documents (80,000
pages/300 pages per month = 266.66 months or 22.22 years). Such a schedule is fundamentally
inconsistent with FOIA’s core purpose of ensuring meaningful and timely access to government
records. See Payne Enters., 837 F.2d at 494; Long, 693 F.2d at 910.
Third, Defendant’s own conduct substantially undermines its position regarding
reasonableness and diligence. The record demonstrates that meaningful processing activity did
not begin until after Plaintiffs initiated this litigation. Defendant admits that Plaintiffs’ request
remained unassigned to an analyst for responsiveness review until after suit was filed in February
2025. See ECF No. [28- 1] at ¶ 14. The Court has already expressed concerns regarding
Defendant’s claimed adherence to a genuine first -in, first -out processing system, noting that
Defendant failed to provide sufficient processing records demonstrating that such a policy was
actually being followed. See ECF No. [27] at 11. The Court further concluded that Defendant’s
delays reflected “a lack of diligent effort to process Plaintiffs’ request in a timely manner.” Id. at
12. Those concerns remain largely unrebutted in the present summary judgment record.
Fourth, Defendant’s declarations rely heavily on generalized institutional burdens while
providing comparatively limited case -specific explanation for why faster production would be
impossible here. While Defendant references staffing shortages, budget constraints, competing
litigation demands, and classified-review concerns, see ECF No. [28] at 14-19, Defendant’s own
declarations demonstrate that the Department has already devoted substantial resources to post -
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litigation searches, de -duplication efforts, responsiveness review, and interim productions once
judicial intervention occurred. See ECF No. [28-1] at ¶¶15-19.
Although the Court is unpersuaded by Defendant’s proposed 300-page-per-month schedule
under the specific facts presented here, the Court also recognizes that Plaintiffs’ request that all
processing be completed within six months may be impracticable given the breadth of the request,
the substantial volume of responsive records, the classified- review obligations implicated by the
searches, and the need for interagency and intra -agency consultations. The Court must balance
FOIA’s disclosure mandate against legitimate operational realities faced by the agency. See
Colbert, 2018 WL 6299966, at *3. Accordingly, the Court concludes that an accelerated but
manageable production schedule is warranted under the circumstances presented here to prevent
unreasonable delays . See Villanueva , 2021 WL 5882995, at *3 (“Courts have found that
unreasonable delays in disclosing non- exempt documents violate the intent and purpose of the
FOIA, and the courts have a duty to prevent such]abuses.”) (quotation marks and citation omitted).
In light of the extensive delay already incurred in this case, Defendant’s lack of diligence
during the pre-litigation period, the substantial potentially responsive universe of records, FOIA’s
statutory command that records be made promptly available, the equitable authority vested in this
Court under 5 U.S.C. § 552(a)(4)(B), and the authorities cited by both Parties, the Court concludes
that Defendant’s proposed rate of approximately 300 pages per month is not reasonable . See
Clemente, 71 F. Supp. 3d at 269 (“A court therefore may use its equitable powers to require the
agency to process documents according to a court -imposed timeline.”). The Court further
concludes that Plaintiffs’ alternative proposed rate of 5,000 pages per month represents a more
appropriate balance between the need for meaningful disclosure and the operational burdens
asserted by Defendant in this case. See Clemente, 71 F. Supp. 3d at 269 ( ordering the agency to
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“process 5,000 documents per month responsive to the plaintiff’s request and to produce
responsive, non-exempt documents on a rolling basis.”). The Court therefore finds that requiring
Defendant to process and produce records at a rate of 5,000 pages per month, with priority given
to subparts five and six relating specifically to Plaintiffs themselves , is reasonable. See id. The
Court additionally finds that continued judicial supervision is appropriate to ensure compliance
with FOIA’s disclosure obligations and to prevent further unnecessary delay. See id.
Accordingly, because the undisputed record demonstrates that Defendant’s present
production schedule is unreasonable under FOIA, the Court finds that Plaintiffs are entitled to
summary judgment on Count III. Conversely, because Defendant has failed to establish as a matter
of law that its proposed production schedule satisfies FOIA’s prompt-disclosure requirements, the
Court concludes that Defendant is not entitled to summary judgment on Count III. Accordingly, I
respectfully RECOMMEND that Plaintiffs’ Motion for Summary Judgment BE GRANTED as
to Count III. I further RECOMMEND that Defendant’s Cross-Motion for Summary Judgment
BE DENIED as to Count III. I additionally RECOMMEND that the Court order Defendant to
process and produce responsive records at a rate of 5,000 pages per month and require sixty -day
(60) status reports regarding Defendant’s ongoing compliance.
IV. CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Plaintiffs’ Motion for
Summary Judgment, ECF No. [13] , be GRANTED, and that Defendant’s Cross -Motion for
Summary Judgment, ECF No. [28], be DENIED, as follows:
1. Plaintiffs’ Motion be GRANTED as to Count I concerning adequacy of search;
2. Plaintiffs’ Motion be GRANTED as to Count II concerning Defendant’s failure to comply
with FOIA’s statutory timing requirements;
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3. Plaintiffs’ Motion be GRANTED as to Count III concerning Defendant’s withholding of
non-exempt records through an unreasonable production schedule;
4. Defendant be ORDERED to process and produce responsive non-exempt records at a rate
of 5,000 pages per month, prioritizing subparts five and six of Plaintiffs’ request;
5. Defendant be ORDERED to file sixty-day (60) status reports regarding compliance with
the Court’s production schedule; and
6. The Court ADMINISTRATIVELY CLOSE this matter while retain ing jurisdiction to
enforce compliance with its Order.
Pursuant to Local Magistrate Rule 4(b), the P arties will have fourteen (14) days from the
date of being served with a copy of this Report and Recommendation within which to file written
objections, if any, with the Honorable K. Michael Moore, United States District Judge. Failure to
timely file objections shall bar the parties from a de novo determination by the District Judge of
an issue covered in the Report and shall bar the parties from attacking on appeal unobjected- to
factual and legal conclusions contained in this Report except upon grounds of plain error if
necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149
(1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on June 1, 2026.

_________________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE

cc: All Counsel of Record
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