Public records litigation making its way through Washington, D.C.'s federal court is slowing down as officers tasked with combing through the documents work from home or are cut off from accessing databases that house the records.

In court filings made in recent days in the U.S. District Court for the District of Columbia, lawyers representing several different federal agencies have laid out the difficulties Freedom of Information Act officers are facing in responding to court-ordered deadlines. Some are asking judges to adjust or stay deadlines, and the filings indicate that plaintiffs are agreeing to the temporary delays.

In at least one FOIA case, the Federal Bureau of Investigations asked a judge to stay proceedings altogether due to the pandemic, saying the agency is not processing any records requests. Lawyers said in a March 20 filing that "employees cannot telework and process records responsive to plaintiffs' FOIA requests because the systems that they work on are located on FBI's SECRET-level classified enclave."

In an attached declaration, FBI official Michael Seidel said telework "is not available" for employees processing the agency's FOIA requests due to the classified nature of the records, and the relevant staff are not considered "mission-critical" and were sent home. He said the office planned to reopen on March 30, but that "this situation remains fluid and will be regularly re-assessed as circumstances change."

"As of March 17, 2020, no further production of records pursuant to FOIA will be made, whether those productions are in relation to requests in litigation or at the administrative stage," Seidel wrote. "This includes responses to FOIA consultation requests or referral from other agencies to the FBI."

Judge Reggie Walton on Monday denied the request to stay the case entirely, but did vacate all of the FBI's production and processing deadlines in the case. He asked the parties to confer and file a joint status report by April 13 about further proceedings in the case.

In a lawsuit seeking records on Justice Brett Kavanaugh, Justice Department lawyers representing the National Archives said in a filing Monday that some records are housed in the George W. Bush Presidential Library, "which closed to the public on March 13, 2020, due to COVID-19."

"Unfortunately, due to the highly sensitive nature of the presidential records stored in NARA's Electronic Records Archives (ERA) system, the ERA system was configured to only work onsite and cannot be accessed by employees while teleworking," the filing reads. "And all of the relevant employees are currently teleworking, consistent with recent OMB guidance to maximize telework to the greatest possible extent. Accordingly, the library is currently not processing any new records responsive to plaintiffs' request."

The parties said in the joint status report that they agreed the archives wouldn't process any more documents for the next 30 days, and will meet at that time to determine what the next steps should look like.

The report also said that the Justice Department's Office of Legal Counsel is also facing difficulties in processing records due to the pandemic. Rather than ask the case to be paused, they asked a judge to adjust the deadlines so they would process 1,200 records over the next three months, rather than 400 records each month.

"At least at this time, most OLC FOIA processing is continuing in a remote-telework environment, but the process of reviewing and clearing monthly responses is necessarily made substantially more difficult. And the process of engaging in necessary consultations with other entities within the Executive Branch is much less predictable than under ordinary circumstances, as each agency is affected in different ways," the filing reads.

The State Department has also said in several lawsuits that its ability to process FOIA requests is severely curtailed.

In a joint status report filed in an American Oversight suit seeking records about Vice President Mike Pence's contacts with Ukrainian President Volodymr Zelensky in September 2019, DOJ lawyers said the State Department is implementing telework guidelines to safeguard employees from COVID-19.

"As a result, significant portions of department personnel are teleworking, and many department records are stored or must be processed on systems to which personnel do not currently have remote access. Accordingly, the department's search and processing capabilities are seriously diminished," the filing reads.

In a declaration filed in several other State Department public records suits, official Eric Stein, who is responsible for responding to FOIA requests at the agency, said the department's "FOIA processing capabilities are being seriously compromised by the COVID-19 pandemic."

"In short, because of the grave impact of the COVID-19 pandemic that has limited Executive Branch work in the office workplace to mission-critical functions, the inaccessibility from outside of department worksites of the systems the department uses to process FOIA cases, and the department's paramount concerns for the safety of its employees, the department's ability to process documents in response to the request in this case has been greatly diminished," Stein wrote. "Accordingly, the department respectfully seeks a 60 day stay."

Other federal agencies have also said in court filings that they too are feeling the strain of the pandemic, and that it's impacting their ability to process requests.

In another American Oversight lawsuit seeking DOJ records tied to the U.S.'s hold on Ukrainian aid and President Donald Trump's contacts with Zelensky, lawyers for the Justice Department's National Security Division said in a filing Wednesday that the division "will endeavor" to make a final response to the request by April 30.

"However, due to challenges relating to the COVID-19 pandemic which have limited NSD's ability to process responsive paper records, NSD anticipates that that schedule may potentially end up not being feasible. The parties are continuing to confer regarding this issue," the joint status report reads.

"Furthermore, due to the current national emergency relating to the COVID-19 pandemic, the parties have agreed to informally discuss the issue of consultations based on each agency's capabilities as the situation continues to unfold," the lawyers wrote.

The D.C. docket is flooded with FOIA litigation targeting the federal agencies in the court's jurisdiction. But as the coronavirus pandemic triggered public health restrictions, Chief District Judge Beryl Howell ordered civil and criminal proceedings halted until April 17, unless an individual judge orders otherwise. Criminal trials are delayed until May 11.

Judges have postponed or vacated hearings in the public records cases, with some saying they'll now rule on briefs or transition to phone conferences.

Attorneys haven't stopped filing FOIA litigation in the D.C. federal court during the pandemic, including at least one seeking records about the Trump administration's efforts to address the coronavirus.

Read more: