In the event an agency fails to issue a timely determination and is sued, it should nevertheless continue to process the request. To the extent that the request is granted, the suit may become moot; to the extent the request is denied, the government will be able to prepare a defense on the merits. If an initial denial in whole or part is issued by an agency after suit has been filed, and the requester administratively appeals, the agency should, unless otherwise instructed by its counsel or by the court, proceed to process the appeal. Moreover, agencies may wish to consider making provisions for the initiation of an appeal upon their own motions in such circumstances; otherwise, failing an appeal by the requester, the agency may be committed in litigation to a position it does not genuinely support. If suit is filed while an appeal is pending, whether or not the suit is premature, the agency should normally continue to process the appeal. The time limit provisions of the 1974 Amendments appear to presuppose that agencies will have a basically two-step, rather than a single-step, procedure in their regulation, i.e., that they will provide for an initial determination whether to grant or deny access, followed by an administrative appeal. While there is nothing in the 1974 Amendments which expressly forbids an initial determination that is administratively final, it seems clear that the vast majority of agencies will continue to use some form of two-step procedure, not only because it permits the correction of errors and avoidance of unnecessary litigation but also because, under the 1974 Amendments, it makes available an additional 20 days for agency consideration of the request. Agencies contemplating changes in their regulations from a single-step to a two-step procedure, or changes to a different form of twostep procedure, should note that the 1974 Amendments contemplate an administrative "appeal". This means that the agency official charged with acting on appeals must be different from the official responsible for initial denials. Some agency regulations now prescribe a period of time, such as 30 days, within which a requester must file an appeal, ordinarily running from the requester's receipt of the denial letter. The 1974 Amendments contemplate that an initial determination to furnish records will be dispatched within the time limits discussed above, and that the records will be furnished either at the same time or "promptly" thereafter. At the time of the initial determination there may be some uncertainty on the part of the requester, or even on the part of the agency, as to the precise extent of the materials being made available and being denied. Accordingly, if an agency's regulations as revised contain a time limit for the filing of an appeal, it is suggested that the period run from receipt of the initial determination (in cases of denials of an entire request), and from receipt of any records being made available pursuant to the initial determination (in cases of partial denials). Such a provision would relate only to the end, not to the beginning, of the period for the requester to file an appeal; it would in no way interfere with the right to file an appeal immediately after any initial determination involving any degree of denial. Such a provision should promote fairness, help reduce premature and unnecessary appeals, and minimize technical questions about the timeliness of appeals. Court Cases OPEN AMERICA V. WATERGATE SPECIAL PROSECUTION FORCE (547 F.2d 605 (D.C. Cir. 1976)) OPEN AMERICA, ET AL. V. THE WATERGATE SPECIAL PROSECUTION FORCE, ET AL., APPELLANTS NO. 76-1371 (United States Court of Appeals, District of Columbia Circuit-Argued 27 April 1976, Decided 7 July 1976) Requesting parties, including nonprofit "public interest" group, law professor, and law students, sought disclosure of certain information by, inter alia, Water 3 The establishment of an explicit time limit is not mandatory. In its absence, a "reasonable time" would presumably be allowed. Such a disposition, however, increases uncertainty and hence litigation. gate Special Prosecution Force and FBI under Freedom of Information Act. The United States District Court for the District of Columbia, Aubrey E. Robinson, Jr., J., granted motion to require detailed justification, itemization, and indexing of documents within 30 days with respect to certain agencies, and defendants appealed and filed motion for stay of district court order. The United States Court of Appeals, Wilkey, Circuit Judge, held that where FBI was deluged with volume of requests for information vastly in excess of that anticipated by Congress where existing resources were inadequate to deal with volume of such requests within time limits set forth in section of Freedom of Information Act, and where FBI showed that it was exercising due diligence in processing requests on a first in, first out basis, "exceptional circumstances" existed within meaning of subsection of Act allowing court to grant agency additional time to complete its review of agency records. Order vacated and case remanded. Leventhal, Circuit Judge, concurred in the result and filed opinion. 1. Federal Courts 554 Where district court's order requiring Attorney General, Department of Justice, FBI, and director of FBI to comply with request for information under Freedom of Information Act by providing detailed justification, itemization, and indexing of documents requested within 30 days settled conclusively position of parties under Freedom of Information Act, order was reviewable, especially since issue involving priority of requesting parties' request for documents was too important to be decided on future appeal from government's probable claim under exemptions to disclosure, when issue of priority might appear moot. 5 U.S.C.A. §§ 552, 552 (a), 552 (a) (6) (C); 28 U.S.C.A. § 1292 (a). Subsection of Freedom of Information Act giving agency extension of time for supplying requested information when agency can show that exceptional circumstances exist contemplates that agency will have found it impossible to respond to request within other subsection's time limit, even with all due diligence, and for reasons not confined to those listed in subsection allowing extension for "unusual circumstances," that the requesting party will have gone to court, and that the court will hear evidence as to what exceptional circumstances may excuse the government from the rigid time limits of the Act and as to the due diligence of the agency, if that is challenged by requesting party. 5 U.S.C.A. § 552 (a) (6) (A–C). 3. Records 14 In enacting Freedom of Information Act, Congress intended for district court to require agency to give priority to request for information if some exceptional need or urgency attached to the request justified putting it ahead of all other requests received by the same agency prior thereto, assuming that such agency could be shown to be exercising due diligence in processing request for information. 5 U.S.C.A. §§ 552, 552 (a), 552 (a) (6) (A–C). 4. Records 14 In action seeking disclosure of certain information by, inter alia, Department of Justice and FBI under Freedom of Information Act. FBI made sufficient showing of due diligence in its handling of thousands of requests for information under Act on a first in, first out basis for ordinary requests. 5 U.S.C.A. §§ 552, 552(a), 552 (a) (6) (A–C). 5. Records 14 In enacting Freedom of Information Act, Congress intended to guarantee access to government agency documents on an equal and fair basis. 5 U.S.C.A. §§ 552, 552 (a). 6. Records 14 For purpose of Freedom of Information Act, good faith and due diligence on the part of an agency in supplying requested agency documents call for a procedure which is fair overall in the particular agency. Under Freedom of Information Act, Congress wished to reserve role of courts for two occasions: when agency is not showing due diligence in processing requesting parties' individual request or is lax overall in meeting its obligations under the Act with all available resources; and, when requesting parties can show a genuine need and reason for urgency in gaining access to government records ahead of prior applications for information. 5 U.S.C.A. §§ 552, 552 (a), (a) (4) (B), (a) (6) (A–C). Where an agency is deluged with volume of requests for information under Freedom of Information Act vastly in excess of that anticipated by Congress, where existing resources are inadequate to deal with such requests within the time limit of subsection of Act, where agency can show that it is exercising due diligence in processing requests, and where requesting party fails to specify any urgent or exceptional need for information requested, "exceptional circumstances" exist within meaning of subsection allowing court to then retain jurisdiction and allow agency additional time to complete its review of agency records, 5 U.S.C.A. § 552(a) (6) (A–C). See publication Words and Phrases for other judicial constructions and definitions. 9. Records 14 Agency's exercise of due diligence and good faith effort and to comply with all lawful demands under 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 Freedom of Information Act. 5 U.S.C.A. § 552 (a) (6) (A, C). 10. Records 14 Where request was made for information from FBI under Freedom of Information Act without specification of any urgent or exceptional need for information requested, where FBI was deluged with large volume of requests for information, and where FBI was making good faith effort and exercising due diligence in attempting to comply with all lawful demands under Act by assigning requests on a first in, first out basis, fact that FBI failed to comply with request for information within time normally allowed for request absent unusual or exceptional circumstances did not entitle requesting parties to court order directing FBI to give priority to their request. 5 U.S.C.A. §§ 552, 552 (a), (a) (6) (A, C). On Appellants' Motion for Stay (D.C. Civil Action 76-0129). Eloise E. Davies, Potomac, Md., with whom Leonard Schaitman, Washington, D.C., was on the motion, for appellants. Alan B. Morrison, Washington, D.C., was on the motion for appellees. Opinion for the Court filed by Circuit Judge Wilkey. Opinion filed by Circuit Judge Leventhal concurring in the result. Wilkey, Circuit Judge: Action in the District Court was brought to compel disclosure within certain specified time limits of information sought under the Freedom of Information Act (FOIA).1 In contrast with previous Freedom of Information Act cases, this suit does not deal with an interpretation of any of the exemptions to disclosure, but with the question of the time within which any compliance with or denial of a request must be made, as set forth in the 1974 FOIA amendments. Ultimate access to the records is not, and may never be, the issue; the issue is under what time constraints administrative agencies should be compelled to act by a court at the behest of an information seeker. United States District Judge Aubrey Robinson granted plaintiffs' motion under Voughn v. Rosen3 to require detailed justification, itemization, and indexing of the documents within thirty days. Believing that the statutory interpretation urged by plaintiffs and upon which the District Judge acted is erroneous, we reverse. 15 U.S.C. § 552 (1970 & Supp. IV, 1974). 2 Act of 21 November 1974, Pub. L. No. 93-502, § 1(c), 88 Stat. 1561, amending 5 U.S.C. § 552(a) (1970). 3 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564. 39 L.Ed.2d 873 (1974). See also Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136 (1975). I. THE STATUTORY INTERPRETATION ISSUE A. Actions Taken by the Parties Plainiffs' request under the Freedom of Information Act was made on 10 October 1975 by identical letters to the Attorney General of the United States, the Director of the FBI, and others, demanding the production for inspection and copying of all documents and files relating to the role of the former Acting Direc tor of the FBI, L. Patrick Gray, in any aspect of the so-called "Watergate affair.” These letters admonished that "[f]ailure to reply to this request within the tenday period provided by the Act will be treated as a denial of the request, and appeal will be sought." Reply was made by the Director of the FBI on 5 November 1975, noting that the request had been received, and that on the day of receipt the FBI had 5,137 Freedom of Information Act requests on hand and was in various stages of completion on 1,084 of those cases." By letter of 12 November 1975 plaintiff Open America addressed an appeal to the "Appeals Officer, Freedom of Information Unit, Federal Bureau of Investigation," noting that “[i]f you do not act upon my request within 20 working days, I will deem our request denied." On reaching its proper destination this letter, too, was duly acknowledged, the reply pointing out that the request had been assigned its priority number and would be processed in due course. Without detailing further exchange of correspondence between plaintiff's and officials of the Justice Department, it is sufficient to note that the failure of the FBI to complete the processing of this request within the statutory time limits as interpreted by the plaintiff's, resulted in the filing on 22 January 1976 of the action in the District Court seeking to compel the FBI to comply with or deny immediately plaintiffs' request. After plaintiff's obtained such an order, the Government defendants came to this court, seeking an immediate temporary stay of the District Court's order of 23 March 1976. At oral argument all parties stated that they had no objection to the court considering this case on the merits, which we have done." B. Plaintiffs' Theory of the Case [1] At no time have plaintiffs specified the purpose for which they desire access to the FBI files on the role of L. Patrick Gray in the Watergate affair, nor indeed under the Freedom of Information Act are they required to do so. More important to the issue in this appeal, however, may be that at no time have plaintiffs specified any urgent or exceptional need for this information which entitles them to a priority over the other 5,137 applicants whose requests under the Freedom of Information Act were on file with the FBI on the date plaintiffs' request was received. Rather, plaintiffs have relied throughout on a claim of absolute right to have their request processed within the statutory ten-day and twenty-day periods." It is apparent from the action of the District Judge on this matter that he adopted completely plaintiffs' theory of the case. He held no hearing, he made no 4 Memorandum in Support of Government's Motion for Stay Pending Appeal (Exhibit A). Plaintiffs' letter, signed by John F. Banzhaf, III, as Executive Director, and four other individuals as Directors, of Open America, states that "Open America, Inc., is a non-profit organization formed to undertake projects 'in the public interest,' and this request is part of such a project." 5 Id. (Exhibit B). Id. (Exhibit C). This was an incorrect address, as the Appeals Office is located within the Office of the Deputy Attorney General. 7 This action originally named the Watergate Special Prosecution Force as the first defendant. Judge Robinson's order noted that this entity planned to file a detailed justification as to the two files in its possession requested by plaintiffs. Hence, plaintiffs' motion was granted only "as to Defendants Attorney General Levi, Director Kelley, Department of Justice and Federal Bureau of Investigation. Open America v. Watergate Special Prosecution Force, Civil Action No. 76-0129 (D.D.C. order issued 23 Mar. 1976). The District Court's order is reviewable under 28 U.S.C. $ 1292 (a) (1970) Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The order settled conclusively the position of the parties under 5 U.S.C. § 552(a) (6) (C) (1970), whose construction, in light of the circumstances in this and other cases, is too important to be denied review. The question of priorities should be decided now, not on an appeal from the Government's probable claim under exemptions to disclosure, when the issue of priorities might appear moot. 5 U.S.C. § 552(a) (6) (Å). There is some indication that the individual plaintiffs, a law professor and students at a local law school, are desirous of making this a test case on subsection (a) (6) (A). Accordingly, they have not alleged any facts which would bolster their claim, preferring instead to rely on the bare words of the statute in an effort to secure a decision favorable to the meaning they ascribe to it. findings of fact, he gave no reasons for his action in granting plaintiffs' motion; he simply issued an order for the defendant officials to deliver to plaintiffs within thirty days the documents agreed to be produced and a detailed justification for documents claimed to be exempted from disclosure under the FOIA. We accept these actions of the District Judge to mean that he agreed with plaintiffs' interpretation of the statute, and that in the spirit of expediting all Freedom of Information Act requests, he saw no reason to delay matters by holding a hearing or taking the time to make detailed findings of fact or to elaborate upon his reasons. If the matter were as simple as plaintiff's claim it to be, and as the District Judge appeared to assume, this was a sensible course of action. C. The Statutory Language This is a case of first impression. There are no previous judicial decisions interpreting 5 U.S.C. § 552 (a)(6)(A), that portion of the 1974 amendments on which plaintiffs base their argument and on which the District Judge acted.10 We must therefore base our decision on the original Freedom of Information Act, the amendments of 1974, their legislative history, and the undisputed operative facts of this case, with scant resort to precedent. Section 552 (a) of Title 5, United States Code, was amended by adding: (6) (A) Each agency, upon any request for records . . . shall— (i) determine within ten [working] 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 . . . (ii) make a determination with respect to any appeal within twenty [working] days . . . after the receipt of such appeal. These "administrative deadlines" of Section 552(a) (6) (A) are modified by the following subparagraph (B), which provides that in "unusual circumstances," for example, where the request involves voluminous records. or records must be obtained from field office or storage, the total time limits may be extended for an additional ten working days. Thereafter, an applicant who has not received either the information requested or denial of his request will be deemed to have exhausted his administrative remedies (subparagraph (C)), and may then bring suit in the appropriate district court pursuant to Section 552 (a) (4) (B). The specific language of the 1974 amendments on which the Government relies appears in 5 U.S.C. § 552 (a) (6) (C): “If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records." II. PRESENT FBI PROCEDURES COMPARED TO THE STATUTE The Government defense, simply put, is that the FBI has indeed exercised "due diligence" in handling all informational requests, including this one, but that "exceptional circumstances" created by a virtual deluge of requests since the effective date of the FOIA amendments have prevented the agency from completing its review of the records sought by these and other applicants. Thus, defedants assert, under such circumstances Congress intended for the courts to utilize the authority granted them by subsection (6) (C) to relieve agencies of the burden of complying with the very strict statutory time limitations in subsection (6) (A). The "exceptional circumstances" provision was designed and inserted specifically as a safety valve for the new statute. A. "Exceptional Circumstances" Subparagraphs (B) and (C) of Section 552(a)6) both contain escape valves of a sort. (B) refers to "unusual circumstances," but only such unusual circumstances as are specified in this subparagraph will suffice for a ten-day extension of the limits of subparagraph (A). Those unusual circumstances are the need to collect the records from several separate places, voluminous records called for in the single request, and a need for consultation with other agencies. The ten-day extension is granted by the agency to itself, but only on notice to the requesting party. 10 Since issuance of the order in the instant case, two other federal district courts for the District of Columbia have interpreted section 552 (a) (6) (A), (along with subparagraph (C)) and reached opposite conclusions. Compare Hayden v. United States Dep't of Justice, Civil Action No. 76-0288. 413 F.Supp. 1285 (D.D.C.. 1976) (Bryant, J.), with Cleaver v. Kelley, Civil Action No. 795 76, 415 F.Supp. 174 (D.D.C., 1976) (Green, J.). |