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DONHAM v. U.S. DEPARTMENT OF ENERGY

February 27, 2002

MARK DONHAM, KRISTI HANSON, REGIONAL ASSOCIATION OF CONCERNED ENVIRONMENTALISTS, PLAINTIFFS,
V.
UNITED STATES DEPARTMENT OF ENERGY, DEFENDANT.



The opinion of the court was delivered by: Gilbert, District Judge:

ORDER

On February 16, 2001, having exhausted applicable administrative remedies as a prerequisite to filing suit, Plaintiffs brought the instant action seeking disclosure of documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. (Doc. No. 1). Defendant, the United States Department of Energy, has requested a stay under 5 U.S.C. § 552(a)(6)(C) — a so-called "Open America" stay. (Doc. No. 7). Plaintiffs have responded to Defendant's motion for a stay and have made motions for summary judgment. (Doc. Nos. 19, 20, 21, 29, 30).*fn1

I. FACTUAL BACKGROUND

The essential facts of this case are not disputed.

On September 27, 1999, Plaintiffs e-mailed a FOIA inquiry to the Department of Energy's FOIA office in Oak Ridge, Tennessee. The inquiry sought documents related to the Vortec Corporation (allegedly incinerating materials for the Department of Energy).

On September 28, 1999, the Department of Energy acknowledged receipt of the inquiry, indicated the request number as "OR-99-298," and further indicated that it processed requests on a first-in, first-out basis.

On July 20, 2000, before the Department of Energy could comply with the requests for documents, Plaintiff Donham submitted an administrative appeal. Donham alleged that the Department of Energy failed to abide by the FOIA time limit of twenty (20) working days.

On July 21, 2000, the Office of Hearings and Appeals in Washington, D.C., notified Plaintiff Donham of receipt of his appeal. On August 8, 2000, the Office of Hearings and Appeals dismissed Donham's appeal because it did not have a decision on a FOIA response or waiver of fees to review. The dismissal also advised Donham of his right to sue.

On February 16, 2001, Plaintiffs filed their complaint seeking the disclosure of the requested documents.

The Department of Energy has a first-in, first-out policy for addressing FOIA requests. See Declaration of Rothrock, Department of Energy FOIA Officer ¶ 26 (Doc. No. 7). The Department of Energy maintains that it currently has backlog of over 600 FOIA requests, that the instant requests are complex and that they are being handled in the same manner as other complex FOIA requests. Id. ¶¶ 27, 29, 32.

On April 25, 2001, the Department of Energy estimated that request number OR-99-298 would be completed in four to six months. Id. ¶ 30. On November 15, 2001, the Department of Energy provided a partial response to request OR-99-298 to Donham and represented that request OR-99-298 would be completed in late January or mid-February 2002.*fn2 Defendant's Response to Motions for Summary Judgment, p. 2, Exhibit 1, (Doc. No. 31).

On April 25, 2001, the Department of Energy estimated that request number OR-99-300 would take up to 18 months to reach the final declassification review. Id. ¶ 31. The Department of Energy maintains that this final review is also a "lengthy" process. Id. The Department of Energy has provided no firm estimate for the completion of request OR-99-300.

To date, as far as this Court knows, neither of Plaintiffs' FOIA requests has been completed.

II. LEGAL BACKGROUND

Under FOIA, agencies are required to determine whether to comply with FOIA requests within twenty days. 5 U.S.C. § 552(a)(6)(A)(i). Upon a decision to comply, the records shall be made promptly available to the person making the request. 5 U.S.C. § 552(a)(6)(C)(i). Under 5 U.S.C. § 552(a)(6)(C), courts may grant agencies additional time beyond the limits set forth in FOIA to respond to requests where "exceptional circumstances exist and . . . the agency is exercising due diligence in responding to the request . . . ." The case law dealing with § 552(a)(6)(C) is sparse, and the Seventh Circuit has not yet dealt with the subsection. The District of Columbia Circuit Court of Appeals was the first circuit court to interpret § 552(a)(6)(C). In Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), the Court gave a broad interpretation to § 552(a)(6)(C). The Court held that "exceptional circumstances" may exist when an agency can show that it "is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection (6)(A)." Open America, 547 F.2d at 616.

The Court also ruled that FOIA's "due diligence" requirement may be satisfied by an agency's good faith processing of all requests on a "first-in/first-out" basis and that a requester's right to have his request processed out of turn requires a particularized showing of "exceptional need or urgency." Id. at 616.

The Court referred to § 552(a)(6)(C) as a "safety valve" for underfunded agencies, noting that Congress "appropriated no additional funds whatsoever for implementation of the 1974 FOIA amendments." Id. at 612. The Court also noted that the "real parties at interest" might be "other persons or organizations who made requests prior" to the plaintiff. Id. at 614. The Court noted that the agency would have to divert resources from other requests to satisfy a court order in favor of the plaintiff. Id. at 614.

In 1996, Congress amended FOIA and tightened the standard for obtaining a stay by defining the term "exceptional circumstances" so as to exclude any "delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its back log of pending requests." 5 U.S.C. § 552(a)(6)(C)(ii). In Fiduccia v. U.S. Department of Justice, 185 F.3d 1035 (9th Cir. 1999), the Ninth Circuit held that the District Court's grant of an "Open America" stay was error. Fiduccia, 185 F.3d at 1041. The Court acknowledged the defendant agency's backlog ...


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