Department has apparently chosen this case to seek broad court relief. The majority has obliged-and going beyond the holding which I agree requires this case to be remanded to the district court for further proceedings, delivers dictum accepting the broad premise for relief asserted by the Department of Justice, dictum in which I do not join.

19

The majority's inclination to speak broadly may be partly explained by the fact that the district court's order declining to grant relief from the Act's strict time provisions 1o is without explication, providing opportunity to speculate. Whatever, the cause, the majority's discussion today ranges more broadly than is necessary to decide the issue in this appeal. The issue is whether the district court abused its discretion in failing to "retain jurisdiction and allow the agency additional time to complete its review of the records" if in accordance with § 552 (a) (6) (C), “the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request." The Government made an uncontroverted showing by affidavit that FOIA requests have increased at a rate entirely unforeseen and unforeseeable, and that the consequent lag in obtaining and training personnel to deal with these requests has led to a substantial backlog; and that this has made strict compliance with the FOIA time limits impossible. It seems to me that this showing may well constitute the "exceptional circumstances" that combined with a demonstration of due diligence, would warrant allowing the agency additional time under § 552 (a) (6) (C).

20

We need not go any further. The safety valve provisions of § 552(a) (6) (C) were carefully crafted to put a substantial burden on the government to justify to the courts any noncompliance with FOIA time limits. What the majority dictum would contemplate, however, is a scheme that turns the burden of proof mandated by Congress upside down. No longer must the Government make out a case of exceptional circumstances; instead the plaintiff will be required to show a "genuine need and reason for urgency." Maj. Op., 178 U.S. App. D.C. at 547 F.2d at 616. This seems to me a clear departure from the very premise of the section we are engaged in interpreting. It is not supported by statutory language, and indeed seems in conflict with the entire remedial thrust of the 1974 amendments to FOIA.

It must be remembered that the 1974 Amendments were deliberately drafted to force increased expedition in the handling of FOIA requests: "[E]xcessive delay by the agency in its response is orten tantamount to denial. It is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits." H.Rep. No. 93-876, 93d Cong., 2d Sess. (1974), U.S. Code Cong. & Ad.News, p. 6271.

Those time limits took into account the objections of such agencies as the Justice Department, by providing that a ten-working-day extension could be allowed for "unusual circumstances" such as where the requested records come from separate field facilities, where the agency must "search for, collect and examine a voluminous amount of separate and distinct records demanded in a single request," or where consultation with another agency is necessary. S.Conf.

(Continued)

great, this unfortunate provision in the Act usually results in the individual who has sued receiving preferential consideration over the far greater number of other [usually prior] requesters and appellants who choose not to file suit, or who cannot do so.

Absent some wholly arbitrary refusal to expedite a particular request or appeal when exceptional circumstances exist, each individual should be required to wait his or her turn in line. The law as presently written places the burden on the Government to prove that a case should not receive preferential, expedited treatment. This imbalance should be corrected, in fairness to other requesters and to eliminate an unnecessary contribution to the congestion of court dockets in the Federal Judicial System."

19 The reasoning employed by the court cannot be directly inferred from its order. The district court may have decided, for example, that the short-run bulge of requests plaguing the agency did not constitute exceptional circumstances; or that due diligence had not been demonstrated; or that even if exceptional circumstances and due diligence were made out it did not find the case an appropriate one to grant relief from the normal timing requirements.

The majority speculates instead that the district court's order rested on its finding that plaintiffs had an absolute right to have their requested processed within the statutory ten-day and twenty-day periods established under 5 U.S.C. § 552 (a) (6) (A).

20 The Department of Justice Appeal's division had handled 100 appeals in the 12 month period prior to the date the FOIA Amendments became effective; in the next 12 months they received 1276. The FBI in calendar year 1974 had received 447 FOIA requests; in 1975, 13.875 requests were received.

Rep.No.93-1200, U.S.C.A.A.N. at 6289. See 5 U.S.C. § 552(a) (6) (B). It is this 10-day provision, specifically anticipating the problem posed by the "voluminous material" request, which was intended to govern in the usual case. The Congress even rejected a 30-day extension provision, narrowly drafted to take account of the special exigencies facing such agencies as the Immigration and Naturalization Service (INS)-which processes an average of 90,000 formal requests for records each year, seeking access to one or more of the twelve million individual files scattered among and frequently transferred between 57 filed offices and 10 Federal Records Centers. Even that provision was not intended to have been available to agencies, like D.O.J. in this case, "that simply processed large volumes of requests or frequently faced novel questions of legal interpretation. nor could agencies or parts of agencies utilize [the provision] simply because they had been unable to regularly meet standard deadlines, without a showing of the geographical and other concrete obstacles to the location of files or records present in the INS example." S.Rep.No.93-854, 93d Cong. 2d Sess. (1974), p. 26. It would be anomalous to interpret the "excep tional circumstances" provision relied on by the majority to permit open-ended approval of agency failure to meet the Act's specific time limits when a much more rigorous standard for granting a limited 30-day extension was rejected as too lax. See Hayden v. U.S. Dept. of Justice, et al., No. 76-0288, 413 F.Supp. 1285 (D.D.C., 1976). The majority's reasoning by implication from the language of the "exceptional circumstances" provision alone can only be sustained if the specific drafting history of the Act we are interpreting is entirely ignored.

21

It does seem clear to me that absent a special allegation of urgency in processing, the safety valve provided by the exceptional circumstances provision may be available to give relief to the D.O.J. in this case. The unexpected surge in requests combined with the lack of trained personnel qualified to deal with them may meet the government's burden of showing "exceptional circumstances" in the short term. An effective demonstration of due diligence might in turn depend on whether the agency has applied for additional funds to meet the unexpected upsurge in requests, whether it has been or is now willing to allow partial release of documents rather than conditioning release on complete processing of the request, and whether it has or will defer considering any voluntary actions of disclosure which are plainly outside the scope of FOIA, in the interest of expediting disclosure of material expressly covered by the Act.

It should be noted that even a Justice Department failure to make out a case for an "exceptional circumstances" exception, as contemplated by Congress, will not necessarily subiect the Denartment to contempt to coerce compliance. As we recognized in NRDC v. Train, 166 U.S.App.D.C. 312, 333, 510 F.2d 692, 713 (1974). "it would be unreasonable and unjust to hold in contempt a defendant who demonstrated that he was powerless to comply." But our ability as an equity court to withhold the contempt sanction when compliance is impossible, should not affect our duty to construe the underlying statute to accord with Congressional intent. The legislature contemplates that the judiciary will seek to define executive compliance according to the legislative mandate. Softening that mandate by construction serves to provide a gloss that the agency is properly performing the duties assigned by the statute and operates, in effect, to gloss over and screen out any shortfalls in agency performance from the committees and bodies of the legislature. They might otherwise be compelled-by explicit judicial avowal that its decree enforcing the legislative will cannot be enforced by sanctionsto confront the gulf between their expressed will and the practical realities of agency compliance. Adapting what we have said in earlier cases-"So long as [Congress] prescribes a system of [performance] by an agency subject to court review the courts may not abandon their responsibility by acquiescing in a charade or a rubber stamping of [nonperformance] in agency trappings." Public Service Com'n, State of N.Y. v. FPC, 167 U.S.App.D.C. 100, 116, 511 F.2d 338, 354 (1975)

22

21 See. e. g., Cleaver v. Kelley, No. 795–76. 415 F.Supp. 174 (D.D.C.1976), where the court found that the unusual upsurge in requests did constitute excentional circumstances, and that the agency had been exercising due diligence. The court did not consider whether the urgenev alleged by petitioners should be considered in making that determination.

22 Texas Gulf Coast Area Rate Cases, 159 U.S. Ann. D.C. 172. 208-09, 487 F.2d 1043. 107980 (1973, vacated and remanded sub nom. Shell Oil Co. v Public Service Comm's. 417 U.S. 964. 94 S. Ct. 3166, 41 L.Ed.2d 1136 (1974). where Judge Wilkey noted: The reviewing court's duty is to "assure fidelity to the functions assigned to the regulatory agency by Congress."

II

If the Government has here met its burden for relief from the FOIA's specific time provisions because of a short-term inability to cope with a huge jump in information requests, there is no need to seek to forecast the reasonableness of defendants' administrative approach once adjustments to deal with the increased volume of FOIA requests are fully implemented. However, the majority assumes that the Department's troubles in meeting FOIA's time limits will continue, and the opinion seeks to justify those failures in advance. Those justifications I find to be dubious and problemful.

The Justice Department's first-in first-out approach for handling FOIA applications, which it has adopted as a general rule subject to exceptions,23 seems sensible on its face and sound as an administrative method for allocating priority among FOIA requests received by the agency." It is not contested as such, as I understand the position of applicant Open America. However, the processing sequence thus established for the administrative agency or executive respondent processing a request is not impervious to the fact that the filing of a court action is itself a priority-indicating factor of significance. The Act not only authorizes a court action to be filed after notably short periods of administrative consideration but specifically directs that after the complaint is filed the Government shall file its answer within thirty days, instead of the 60 days normally provided to the Government, and that thereafter the case shall "take precedence" and be "expedited in every way.'

11 25

Congress thus made the filing of the action an event that triggers expedition of determination in the court-apart from any expedition in the administrative process. Diligence in seeking court relief is not a fool proof way of assigning priority, but it is material and by no means unprecedented. For instance, a debtor normally should pay off debts in the order they accrue. But if a debt is not paid when due, the creditor who goes to court will receive priority over a creditor who waits, for whatever reason. In granting the litigating creditor a priority the court does not inquire as to his motivation or assess his need.

The assumptions which underlie this "race of diligence" concept are not without meaning for applicants under FOIA. There are common and sensible reasons for choosing not to sue despite the priority awarded to litigants, as in the case of creditors who may be willing to await delayed payment or even risk nonpayment in hopes of future business. Similarly, FOIA applicants may reasonably believe that by cooperating with the agency they may enhance the possibility of obtaining more complete information from the agency, for instance through a favorable exercise of the agency's discretion to release certain technically

23 Defendants' approach admittedly is not strictly first-in first-out. The division of requests into the categories of "project requests' and "non-project requests," see Majority Op. at 612-613, serves the interest in expediting simple requests but means, at the same time, that even though each track is handled on a first-in first-out basis some requests from one category will likely be completed before earlier filed requests from the other category are processed. Similarly, adjustments in the system necessitated by "court orders in cases of genuine need" and agency determinations of cases requiring "preferential handling," see Majority Op. at 613, accommodate the interest in timely resolution of pressing matters, but obviously run counter to the first-in- first-out approach. Also the Government has to some extent deliverately deferred requests that have entitlement under the Act in order to process other requests. This comes about because of the Government's policy of reviewing all requests for the purpose of exercising its discretionary power to release technically exempt material. The interest in "the maximum possible, responsible disclosure of records" can hardly be faulted and the approach used makes good sense administratively. but this policy of course "is an important factor contributing to the backlog within the Appeals Unit." Letter from Harold R. Tyler, Jr., Deputy Attorney General, to Honorable Bella S. Abzug. Chairwoman. Government Information and Individual Rights Subcommittee. Committee on Government Operations, March 15, 1976, at 2-3, Supplemental Memorandum for the Government Appellants (Attachment B).

Each of these modifications, of course, may be reasonable as a matter of administrative procedure. See footnote 7 infra.

24 The approach in the main is simple, understandable and workable and, in addition, appears to serve the interest in fair treatment. Even the agency-imposed exceptions to a strictly first-in first-out procedure such as the two track classification or the excep tion for cases requiring "preferential handling," see footnote 6 supra-would appear to have a sound basis.

255 U.S.C. § 522(a)(4)(C) sets 30 days for answer (unless the court otherwise directs for good cause shown) in contrast with the 60 days generally available automatically under Rule 12(a), Fed. Rules Civ. Proc.

The precedence and expediting provision appears in 5 U.S.C. § 552 (a) (4) (D): “Except as to cases the court considers of greater importance, proceedings before the district court. as autohrized by this subsection, and appeals therefrom, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."

exempt material. The merely curious may well be motivated enough to write a letter, but not to file a law suit."

This marks no discrimination on ground of wealth, as the majority asserts, for Congress has provided litigation costs and attorney's fees. In this setting, we cannot say that diligent litigation is without significance as a rough indicator of priority. A priority continually unfolding on that basis is reasonable enough and does not conflict with the FOIA provision that an applicant is not required to show "need" to be entitled to relief.

III

A disquieting feature in the majority opinion is its willingness to inquire about defendants' resources as a predicate for determining the rights of the parties.

In general, the courts are established to declare rights, and they should not take into account the resources of the defendant as a reason for not declaring a right. Otherwise, the courts will have to go beyond examining the relationship of the parties, generally a sufficiently difficult task, and go into the relationship of the defendant to all other persons having a claim upon him, an essentially unmanageable task. In certain structured instances the courts have been asked or even compelled, to adjudge competing and conflicting claims upon a single defendant. And there certainly is some room for a court in equity to stay its hand, and to forbear from enforcing a declared right in cases where the defendant is called upon to do the impossible." But absent a clear statutory mandate or extraordinary circumstances a court does not normally inquire into a defendant's resources in order to determine whether to declare a right claimed by plaintiff.30

28

If a court is to go beyond the relationship of the parties toward acceptance of an unqualified defense of presently inadequate resources, how is it to determine that the defendant has done all that can reasonably be expected of it in acquiring adequate resources or in efficiently managing the resources it has? And in the case of government agencies, should the court fully examine the agency's management in order to decide if a defense is available? I do not think courts should make such an inquiry beyond the limited function opened up by Congressof deciding a government's prayer based on exceptional circumstances and due diligence, as contrasted with its steady burdens.

A court considering a prayer for relief against an agency normally acts in relation to the case before it without inquiring into the impact of its order on other activities of the agency. Everytime a court remands for further proceedings within a specified time it may be requiring an agency to shift its normal allocation of business in order to comply.

The majority's opinion appears to go well beyond the peculiar circumstances of the instant case. It seems to conclude rather broadly that whatever the cause of the volume of requests confronting it, an agency complies with the Act so long as it processes those requests in "good faith" and with "due diligence" by "assigning all requests on a first in, first out basis, except those where exceptional need or urgency is shown," no matter what delay is caused thereby. If so then one may wonder, along with plaintiffs, whether such a broad defense will become in effect a self-fulfilling prophecy in derogation of Congressional intent

31

26 There is at least some reason to believe that at this early stage of FOIA operations the merely curious may predominate among all applicants. See also footnote 10 infra. 27 The majority apparently concedes that granting litigants priority rationally serves the legitimate purpose of separating those applicants with a significant concern from the merely curious who "would be content to have their curiosity satisfied in six to nine months." Majority Op. at 615. It argues, however, that giving litigants priority would create an "invidious and unintended distinction" based on wealth. Id. Congress, however considered the important role of the courts in enforcement of FOIA and provided for the award of "attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552 (a) (4) (E).

28 Interpleader under Rule 22. F.R.Civ.P., and proceedings in bankruptcy are instances in which courts may be obliged to examine all claims of a particular kind presently assertable against a single defendant.

20 See, e. g. Maggio v. Zeitz, 333 U.S. 56. 68 S.Ct. 401. 92 L.Ed. 476 (1948): Natural Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 333, 510 F.2d 692, 713 (1975).

30 Quite different considerations are involved when a court stays its hands to require an exhaustion of administrative remedies. That is a judicial doctrine. it is subject to an exception for delay, and in FOIA it has been overridden by a Congress solicitous lest it be the plaintiff who is exhausted rather than his remedies.

31 Majority Op., 178 U.S.App.D.C. at ,547 F.2d at 616.

for expedition. At a time when all agencies have abundant work apart from FOIA, it is reasonable to ask what impetus will remain for agencies to adjust to the explicit time limits imposed by Congress if the Act is interpreted to grant them leeway so long as requests are processed in the order of their arrival.

I would at this point simply vacate the order of the District Court and remand the case for a determination whether defendants are entitled to any relief under 5 U.S.C. § 552(a) (6) (C) in light of the probable existence of "exceptional circumstances." I concur in the order of remand and in that much of the majority opinion. The rest of the majority opinion is overly broad in its interpretation of $552 (a) (6) (C); as currently premised is inconsistent with the mandate of Congress; and in any event is premature.

[Exhibit 91]

EXNER V. FBI

(542 F.2d 1121 (9th Cir. 1976))

JUDITH KATHERINE EXNER, PLAINTIFF-APPELLEE

v.

FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS-APPELLANTS

(No. 76-1903)

U.S. Court of Appeals, Ninth Circuit

September 30, 1976.

Action was brought to compel disclosure of information sought from the files of Federal Bureau of Investigation under the Freedom of Information Act. The United States District Court for the Southern District of California, Edward J. Schwartz, Chief Judge, ordered partial immediate compliance, and the defendants appealed. The Court of Appeals, Barnes, Senior Circuit Judge, held that the trial court did not abuse its discretion despite contention that huge number and volume of demands had created a backlog and that the Bureau was following a "first come-first served" policy; that such a policy is ordinarily reasonable; but that filing of suit can, but does not necessarily, create a preference, particularly if a federal court orders it.

Remanded.

1. Records 14

District court has discretion to allow government additional time to comply with request for information sought under the Freedom of Information Act, upon showing of exceptional circumstances and due diligence. 5 U.S.C.A. § 552 (a) (6) (C).

2. Records 14

Trial court did not abuse discretion in ordering partial immediate compliance with request for information sought from the Federal Bureau of Investigation under the Freedom of Information Act despite contention that huge number and volume of demands had created a backlog and that the Bureau had a "first comefirst served" policy. 5 U.S.C.A. §§ 552, 552a, 552 (a) (6) (C).

3. Records 14

Ordinarily consideration of demands under the Freedom of Information Act on a "first in-first out" basis, based on the date of filing of demand, is reasonable, but filing of suit by a person demanding information can, but does not necessarily, create a preference, particularly if a federal court orders it. 5 U.S.C.A. § 552 (a) (6) (C).

Eloise Davies, Atty. (argued), Civ. Div., App. Section, Dept. of Justice, Washington, D.C., for defendants-appellants.

Richard C. Leonard (argued), Beverly Hills, Calif., for plaintiff-appellee.