OPINION & ORDER This case concerns a series of Freedom of Information Act (“FOIA”) requests by the Open Society Justice Initiative (“OSJI”) to a variety of federal agencies that seek information regarding a subject of considerable public importance: the disappearance of Jamal Khashoggi, a U.S. resident, Saudi national, and Washington Post columnist who was not seen alive again after entering the Saudi consulate in Istanbul on October 2, 2018. See Dkt. 11 (“Compl.”) 9. On May 30, 2019, this Court ordered the U.S. Department of State (the “State Department”) to produce responsive documents at “a processing rate of 5,000 pages per month, beginning June 2019,” finding that that volume “appropriately balances the urgency of this particular request with the State Department’s concerns regarding the burdens of making FOIA productions.” Dkt. 50. On June 5, 2019, the Court ordered the U.S. Department of Defense (“DOD”) to “process 2,500 pages of potentially responsive records and produce any responsive, non-exempt portions by June 30, 2019, and thereafter process 5,000 pages of potentially responsive records per month and produce any responsive, non-exempt portions by the end of each month.” Dkt. 57 (superseding original Order at Dkt. 54). Before the Court is the motion by the State Department and DOD (together, the “Government”) for reconsideration of these processing rates. The Government requests instead that the Court order processing rates of no more than 3,000 pages per month per agency. For the reasons that follow, the Court denies the motion. I. Procedural History On December 4, 2018, OSJI submitted the FOIA requests at issue. See Compl. 25. On January 9, 2019, OSJI filed the Complaint. Dkt. 1. In its Complaint, OSJI alleged that it had submitted FOIA requests to federal agencies including the State Department and DOD seeking disclosure of “all records relating to the killing of U.S. resident Jamal Khashoggi, including but not limited to the CIA’s findings on and/or assessment of the circumstances under which he was killed and/or the identities of those responsible.” Id. 25. OSJI alleged that it had requested expedited processing of these requests, id. 26, but that, as of the filing of the Complaint, it had not received any determination as to those requests, prompting it to file this action, id. 2. On March 18, 2019, defendants answered. Dkt. 24. On April 19, 2019, the Court held an initial conference. See Dkt. 25. Until that point, plaintiffs had not received an update on the status of their FOIA requests. See Pl. Mem. at 15. On April 23, 2019, the Court issued a scheduling order that required, inter alia, that DOD and the State Department “provide Plaintiff with a proposed processing schedule” by May 30, 2019. Dkt. 30. On May 13, 2019, the State Department filed a letter requesting a processing rate of 300 pages per month, 19 Civ. 1329 at Dkt. 30 (“State Ltr.”), a supporting declaration from Eric F. Stein, id. Dkt. 30-1 (“Stein Decl. I”), and attached exhibits. On May 20, 2019, OSJI filed a letter in opposition requesting a processing rate of 7,500 pages per month. Dkt. 44. On May 30, 2019, the Court ordered the State Department to process at a rate of 5,000 pages per month. Dkt. 50. On June 3, 2019, the parties filed a joint status report. Dkt. 51. In it, DOD represented that “on June 13, 2019, DOD will provide Plaintiff with an estimated volume of potentially responsive records (in pages) and proposed production schedule for any non-exempt responsive records.” Id. at 2. On June 4, 2019, at a status conference, DOD took the position that the setting of a date for a “proposed production schedule” complied with the Court’s April 23, 2019 Order. Dkt. 59 (“June 4, 2019 Hrg. Tr.”) at 10-13. DOD was not prepared with information at that conference regarding DOD’s FOIA capabilities beyond that it “expressed some concern with the order with respect to [S]tate as to whether [DOD] would be able to comply with that amount….” Id. at 16. Although the Court anticipated setting a processing schedule based on the parties’ informed input, DOD was not able to provide any facts at all regarding its processing capabilities. See id. at 18 (“THE COURT:…If there is something concrete you want to say beyond the agencies are busy, I’m happy to hear it now.”). During the June 4, 2019 conference, the Court, in recognition of the public importance and time-sensitivity of the Khashoggi FOIA request, ordered that each agency process 5,000 pages per month, save that the Court set DOD’s production obligation during the ongoing month of June 2019 at 2,500 pages. See id. at 18-19. On June 13, 2019, the State Department and DOD filed the instant motion for reconsideration, Dkt. 61, a memorandum of law in support, Dkt. 62 (“Gov’t Mem.”), and declarations in support from Eric F. Stein, Dkt. 64 (“Stein Decl. II”), and Mark H. Herrington, Esq., Dkt. 63 (“Herrington Decl.”). On June 27, 2019, OSJI filed a memorandum of law in opposition, Dkt. 72 (“Pl. Mem.”), and the supporting declaration of Catherine Amirfar, Esq., Dkt. 73 (“Amirfar Decl.”), with supporting exhibits. On July 3, 2019, the State Department and DOD filed a reply memorandum of law, Dkt. 79 (“Gov’t Reply”), with a supporting declaration from Eric F. Stein, Dkt. 80 (“Stein Decl. III”). II. Applicable Legal Standards A. Motion for Reconsideration The standard governing motions for reconsideration “is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted); see also S.D.N.Y. Local Rule 6.3 (requiring the movant to “set[] forth concisely the matters or controlling decisions which counsel believe the court has overlooked”). Such a motion “is neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have been previously advanced.” Assoc. Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005); see also Goonan v. Fed. Reserve Bank of N.Y., No. 12 Civ. 3859 (JPO), 2013 WL 1386933, at *2 (S.D.N.Y. Apr. 5, 2013) (“Simply put, courts do not tolerate such efforts to obtain a second bite at the apple.”). Rather, reconsideration is appropriate “only when the [moving party] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation omitted). The Government argues that the less stringent Rule 16(b)(4) “good cause” standard should govern, because “search and processing schedules in FOIA actions fall within the broad range of matters typically governed by pretrial orders issued under Rule 16.” Gov’t Reply at 1. OSJI counters that the Orders at issue “provide equitable relief by directing the Government to take affirmative action to comply with FOIA’s expedited processing provisions,” and so should be governed under the standard on a motion for reconsideration. Pl. Mem. at 9. B. FOIA Requests FOIA requires that executive agencies, upon proper request, produce records to the public or provide justification why the requested materials are exempt from production. See 5 U.S.C. §552. The statute requires that “[e]ach agency, upon any request for records…shall…determine within 20 days…after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of…such determination and the reasons therefor….” Id. §552(a)(6)(A)(i). Recognizing the difficulties of strict compliance with the 20-day requirement, courts have permitted the processing of FOIA requests on a first-in, first-out basis. See, e.g., Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976) (“The good faith effort and due diligence of the agency to comply with all lawful demands under the Freedom of Information Act in as short a time as is possible by assigning all requests on a first-in, first-out basis, except those where exceptional need or urgency is shown, is compliance with the Act.”); Bloomberg L.P. v. FDA, 500 F. Supp. 2d 371, 276 (S.D.N.Y. 2007) (“While a general showing of an agency processing FOIA requests on a first-in, first-out basis, coupled with a multitrack processing system may be consistent with due diligence in some instances, this determination should not be automatic, and fails if extraordinary need is demonstrated.”). Congress has long recognized that “information is often useful only if it is timely” and that, therefore “excessive delay by the agency in its response is often tantamount to denial.” H.R. Rep. No. 93-876, at 6271 (1974). In 1996, Congress amended FOIA to provide for “expedited processing” where there is a “compelling need,” defined as either (1) involving “an imminent threat to the life or physical safety of an individual” or (2) in the case of a request made by “a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. §552(a)(6)(E). This case falls under the second definition, both because OSJI is an organization primarily engaged in disseminating information, and because there is urgency to inform the public, to the extent that this information is not FOIA-exempt, of official findings regarding the Khashoggi disappearance. See Compl. 26; Gov’t Mem. at 5 (acknowledging that the request qualifies for expedited processing). For expedited processing, “a determination of whether to provide expedited process shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request….” 5 U.S.C. §552(a)(6)(E)(ii). An agency must process any request to which expedited processing has been granted “as soon as practicable….” Id. §552(a)(5)(E)(iii). Notwithstanding the statutory deadlines for responding to FOIA requests, as to the timetable for production, FOIA “does not assign any particular time frame to release of the records sought.” Landmark Legal Found, v. EPA, 910 F. Supp. 2d 270, 275 (D.D.C. 2012). III. Analysis A. State Department The State Department argues that it is not “practicable,” within the meaning of the FOIA statute, for it to process 5,000 pages per month. Gov’t Mem. at 9. Although it made the same contention in its initial submissions, see State Ltr., the State Department represents that its experience to date complying with the 5,000-page-per-month processing rate ordered by the Court, and the resulting impact on its overall FOIA operations, fortify the conclusion that a 5,000-page-per-month review rate is not practicable. It argues that the State Department’s challenges meeting this Order during the first month it was in effect constitute new facts, or alternatively good cause under Rule 16, so as to justify reconsideration. The State Department has indeed presented additional relevant data in support of its request for a reduced pace of review. And the Court is prepared to assume arguendo that the importance of the issues at hand and the need to assure that the allocation of resources to this FOIA request are reasonable in light of the State Department’s limited resources and competing priorities justify reconsideration. Nonetheless, the Court, on de novo reconsideration, does not find good cause to revise its considered Order that the State Department process 5,000 pages per month responsive to OSJI’s FOIA request. Salient here, Mr. Stein’s first declaration, submitted in support of the State Department’s original letter seeking a processing rate of 300 pages per month, outlined substantially the same challenges, in the nature of finite departmental resources, that his second declaration now sets out in more detail. Mr. Stein’s initial submission described the State Department’s overburdened FOIA resources, Stein Decl. I 14, and the sharp increase in FOIA requests and FOIA litigation during recent years, id.
14-19. Mr. Stein represented that the State Department has largely tasked, as FOIA reviewers, retired Foreign Service Officers who work on a part-time basis. He represented that the State Department therefore could process only approximately 300 pages per month in this matter. Id.
