related to "the packaging, shipment, receiving,
recycling, and disposition of nuclear weapons from the Department of
Energy's Pantex Plant to the Department of Energy's Paducah Plant." On
October 2, 1999, the Department of Energy acknowledged receipt of the
request, indicated the request number as "OR-99-300" and further
indicated that it processed requests on a first-in, first-out basis.
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
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 of cases, "practical
difficulties" and the agency's inadequate resources, but held that these
problems did not constitute "exceptional circumstances." Id.
III. THE PARTIES' POSITIONS
A. Plaintiffs' Position.
Plaintiffs' action was brought to compel an expedited response to their
FOIA requests and does not allege that Defendant has flatly refused to
release information. Plaintiffs rely on the plain language of §
552(a)(6)(A)(i) which requires agencies to determine whether to comply
with FOIA requests within twenty days. 5 U.S.C. § 552(a)(6)(A)(i).
Plaintiffs argue that Defendant is not entitled to a stay under
5 U.S.C. § 552(a)(6)(C). Plaintiffs contend that a predictable
backlog of cases does not constitute "exceptional circumstances" and
that Defendant's first-in, first-out policy does not, by itself, constitute
"due diligence." For instance, Plaintiffs are critical of the number of
Department of Energy employees allocated to processing FOIA requests.
Plaintiffs rely on the FOIA Amendments of 1996 and Fiduccia v. U.S.
Department of Justice, 185 F.3d 1035 (9th Cir. 1999) for support of their
narrow reading of § 552(a)(6)(C). Plaintiffs conclude that
Defendant's failure to comply with the twenty-day limit should not be
excused and that this Court should enter summary judgment in favor of
Plaintiffs and order Defendant to make a full and complete response
within twenty days of the summary judgment.
B. Defendant's Position.
Defendant relies on the broad interpretation of § 552(a)(6)(C)
articulated in Open America v. Watergate Special Prosecution Force,
547 F.2d 605 (D.C. Cir. 1976). Defendant argues that, in this case,
exceptional circumstances exist because "the Department of Energy is
flooded with a great volume of requests for information vastly in excess
of any mere retrieve and copy work," and because "existing resources are
inadequate to deal with the volume of such requests . . . ." Defendant's
Motion for a Stay, p. 7 (Doc. No. 7). Defendant argues that it has acted
with "due diligence" because the Department of Energy FOIA office
processes requests on a first-in, first-out basis. Id.
Defendant proposes that this Court grant the Department of Energy an
indefinite stay and schedule a status conference within one year.
In this case, more than two years have passed since Plaintiffs' FOIA
requests, and neither of Plaintiffs' FOIA requests has been completed.
Thus, there has clearly been a violation of FOIA's twenty-day clause. The
first key issue is whether Defendant is entitled to a stay.
A. Defendant's Motion to Stay the Proceedings
The material submitted by the Department of Energy makes clear that the
Defendant is responding in a reasonable and diligent manner to incoming
FOIA requests, taking into account the number of requests and Defendant's
limited resources. The Department of Energy has a two-track system for
responding to FOIA requests, with an express lane for simple requests and
a separate track for complex requests. Within the two-tracks requests are
handled on a first-in, first-out basis. Despite the agency's efforts, it
is simply unable to comply with FOIA's twenty-day time limit. The
reality is that Defendant has limited resources and limited personnel to
deal with hundreds of voluminous FOIA requests.
In cases similar to this one, some Courts have followed the Open
America analysis. As noted above, under Open America, a stay is
appropriate upon a showing of "due diligence" and "exceptional
circumstance." Open America v. Watergate Special Prosecution Force,
547 F.2d 605 (D.C. Cir. 1976). Under Open America, the "due diligence"
requirement may be satisfied by an agency's good faith processing of all
requests on a "first-in/first-out" basis. Id. at 616. Under Open
America, the "exceptional circumstances" provision is a safety valve for
agencies facing an overwhelming number of FOIA requests, regardless of
whether the backlog could have been predicted. See, e.g., Rabin v. United
States Department of State, 980 F. Supp. 116 (E.D.N Y 1997) (applying the
"exceptional circumstances" clause when the State Department was dealing
with almost 2,000 pending requests on a first-in, first-out basis);
Cohen v. Federal Bureau of Investigation, 831 F. Supp. 850
(S.D. Fl. 1993) (holding that a longstanding backlog of FOIA requests
constituted an exceptional circumstance).
The Department of Energy urges this Court to adopt the Open America
approach in this case. This Court agrees that Defendant's first-in,
first-out two-track system of response constitutes due diligence.
Plaintiffs criticize Defendant's personnel and budget allocation to its
FOIA office. This Court, however, will not second guess the Department of
Energy's allocation of limited resources or engage in a critique of the
Department of Energy's budget and personnel decisions.
On the other hand, this Court does not accept Defendant's argument that
a backlog of requests qualifies as "exceptional circumstances" under
§ 552(a)(6)(C). If a backlog of requests constitutes "exceptional
circumstances," then the "exceptional circumstances" provision would
render meaningless the twenty-day response requirement. As the District
Court stated in Caifano v. Wampler, 588 F. Supp. 1392 (N.D.Ill. 1984):
So long as the 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-
Caifano, 588 F. Supp. at 1394.*fn3
The Open America approach is inconsistent with the plan language of
FOIA, especially in light of the 1996 Amendments. As the Ninth Circuit
recently stated, "Congress wrote a tough statute on agency delay in FOIA
compliance, and recently made it tougher." Fiduccia v. U.S. Department of
Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). Congress gave agencies
twenty days to respond to FOIA requests. The Open America approach simply
does not adequately respect the rights delineated by FOIA.
In this case, Plaintiffs have already waited two years. Such delay is
clearly inconsistent with the purpose of FOIA. FOIA is intended to ensure
the prompt disclosure of information, not its suppression, Department of
the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599 (1976), and
FOIA's exemptions are to be narrowly construed. Kuehnert v. FBI,
620 F.2d 662, 665 (8th Cir. 1980).
Defendant concedes that the 1996 FOIA Amendments tightened the standard
for obtaining a stay of proceedings by defining exceptional circumstances
to exclude delays resulting from "a predictable agency workload of
requests . . ., unless the agency demonstrates reasonable progress in
reducing its backlog of pending requests." Defendant, however, does not
allege facts to show that its current volume of requests was not
predictable. Rather, Defendant relies on Open America's definition of
"exceptional circumstances" and argues that it should be granted a stay
just because the Department of Energy has a "great volume of requests"
and "inadequate" resources. Defendant's Motion for a Stay, p. 7 (Doc.
No. 7). Moreover, in this case, the Department of Energy admits that its
backlog of requests is actually increasing.
See Declaration of Rothrock, Department of Energy FOIA Officer ¶
26 (Doc. No. 7).
Therefore, this Court concludes that § 552(6)(C)'s "exceptional
circumstances" provision does not apply in this case. The Department of
Energy has violated the FOIA time limitation and done so without excuse.
Therefore, Plaintiffs are entitled to summary judgment. This conclusion,
however, does not end the discussion. It merely leads to the more
difficult problem of fashioning a satisfactory remedy.
B. Remedy for the FOIA Violation
Some Courts that have rejected the Open America approach have ordered
defendant agencies to respond to the subject FOIA requests within a
specified time. See, e.g., Fiduccia v. United States Department of
Justice, 185 F.3d 1035 (9th Cir. 1999) (acknowledging a backlog of
requests, denying a stay and remanding to the district court); Hunter v.
Christopher, 923 F. Supp. 5 (D.D.C. 1996) (acknowledging a backlog of
requests, denying a stay and ordering completion of the plaintiff's
requests within sixty days); Hinton v. FBI, 527 F. Supp. 223 (E.D.Pa.
1981) (acknowledging the FBI's backlog of requests, denying a stay and
ordering the release of documents at ninety-day intervals); Hamlin v.
Kelley, 433 F. Supp. 180 (N.D.Ill. 1977) (acknowledging a backlog of
requests, denying a stay and ordering production of documents in monthly
The problem with this approach is that it "shoves the problem under the
rug" and unfairly prejudices other individuals with FOIA requests pending
before the defendant agency. Caifano v. Wampler, 588 F. Supp. 1392, 1394
(N.D.Ill. 1984). In Open America, the Circuit Court stated:
We have no doubt that the Government officials would
comply promptly with any order this court issued
giving preferential, expedited treatment to the
request of [the plaintiff]. They would, of course,
given their finite human and financial resources, do
so by taking personnel away from other prior requests
which the [defendant agency] is now engaged in
processing. We do not see, either on the face of the
statute or on any sane analysis of the situation
confronting [the defendant agency] and all other
Government agencies in regard to Freedom of
Information Act requests, why we should order such a
reallocation of resources.
Open America, 547 F.2d at 614. This Court agrees that granting a
preference to litigants over other FOIA requestors would result in an
unfair and inefficient first to sue, first served system.