courts to grant agencies additional time beyond the ten days set
forth in the Act to respond to FOIA requests where "exceptional
circumstances exist and . . . the agency is exercising due
diligence in responding to the request. . . ." We directed the
parties to brief the question of how we are to determine whether
the defendant agencies have exercised the "due diligence"
contemplated by § 552(a)(6)(C).
The material submitted by defendants in response to our order
makes clear that they are doing the best they can within their
physical limitations to cope with a crushing number of FOIA
requests. However diligent and well-intentioned they may be, they
simply cannot comply with the ten-day provision; they have
limited resources, limited personnel, and a seemingly unlimited
number of requests, some of which are quite voluminous, to
Still, we are not inclined to accept defendants' argument that
they are entitled to an extended time period in which to respond
to plaintiff's requests. Although some courts have applied the
"due diligence — exceptional circumstances" provision in factual
situations identical to this one, see, e.g., Open America v.
Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.
1976), we are not quite so eager to invoke that section. If the
due diligence provision applies here, then clearly it swallows
altogether the ten-day response requirement. So long as an agency
could show that it had received more requests than it could
handle, and that it was proceeding diligently — and we would be
surprised if most agencies could not show this — then it would
not be obliged to comply with the ten-day requirement. This
interpretation would render the ten-day clause a non-entity. It
seems unlikely that Congress intended such a result.
If we reject applicability of the time extension provision,
however, it would appear that we must hold that the defendants
have inexcusably violated the FOIA time limitations. See, e.g.,
Hamlin v. Kelley, 433 F. Supp. 180 (N.D.Ill. 1977). Unfortunately,
we can think of no way in which we could fairly and efficiently
right the wrong were we to so rule.
Although a number of potential remedies occur to us, none of
them strike us as satisfactory or prudent. Some courts that have
found a violation of the ten-day rule have, for example, ordered
defendant agencies to take action on a plaintiff's request within
a specified time period. See, e.g., Hinton v. Federal Bureau of
Investigation, 527 F. Supp. 223 (E.D.Pa. 1981); Hamlin v. Kelley,
supra. Although this might appear to be the easy way to handle
such cases, we think it simply shoves the problem under the rug.
The effect would be to "vault" plaintiff's request over the
requests of other individuals who were ahead of him in the FOIA
line but who did not seek judicial relief. This would unfairly
prejudice those other individuals, and we will not do that. See
Open America v. Watergate Special Prosecution Force, supra, 547
F.2d at 614-15.*fn1
Another possibility would be to direct defendants to turn over
immediately all requested documents. Even if we had the authority
to order such drastic relief, that course of action would
eviscerate the many and genuine concerns underlying the FOIA
exemptions, including the need to protect ongoing investigations.
This, too, is an untenable remedy.
Finally, we do not consider it appropriate to order federal
agencies to restructure their resource allocation so as to devote
more resources to the task of FOIA compliance and less to the
substantive focus of the respective agencies.
In short, we find ourselves in a troubling position, and one
that is unique in our experience: whether or not defendants have
violated the ten-day response provision of the FOIA, there is
nothing we can do at this time to give plaintiff relief, or to
vindicate any rights he may have. We can only direct that
defendants continue to
work diligently and expeditiously in a good faith manner to
respond to plaintiff's requests.*fn2
For the above reasons, we dismiss this action with leave to