Exner v. Federal Bureau of Investigation, 76-1903
| Decision Date | 30 September 1976 |
| Docket Number | No. 76-1903,76-1903 |
| Citation | 542 F.2d 1121 |
| Parties | Judith Katherine EXNER, Plaintiff-Appellee, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Eloise Davies, Atty. (argued), Civ. Div., App. Section, Dept. of Justice, Washington, D. C., for defendants-appellants.
Richard C. Leonard (argued), Beverly Hills, Cal., for plaintiff-appellee.
Before BARNES and GOODWIN, Circuit Judges, and TAKASUGI, District Judge. *
This action in the district court was brought to compel disclosure to plaintiff within certain specified time limits of information sought from the files of the Federal Bureau of Investigation (herein FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a.
It has no relation to any flat refusal by the FBI to act, but to the FBI's refusal (a) to act until it has treated all previous requests, seriatim; and (b) to act until it has satisfied both itself and, in certain matters, the Department of Justice (of which the FBI is a part), that the requested material can properly be made available. It thus deals with what time compliance the courts should order; not on a flat or blanket refusal of the FBI to comply with plaintiff's demands.
The primary problem is that precise time limits were placed by the Congress on the furnishing of such information by the FBI, which bear no relation in actual practice to the multiple demands placed upon it, or to the capacity of the FBI work force to do the careful and thorough examination required on each such demand.
To put it in another way, the procedures adopted by the FBI in servicing citizens' demands (such as the seriatim consideration of each demand, based almost (but not entirely) on the earliest date of filing the demand) are said to violate the intent of Congress as expressed in 5 U.S.C. § 552(a)(6)(C) which provides:
"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." (Emphasis added.)
It is obvious that the foregoing paragraph gives the district court discretion to allow the government additional time to comply. Here the district court declined to grant further time. There is no showing that in doing so it abused its discretion. Instead, the district judge ordered partial immediate compliance. 1 Instead of complying, the government filed in the district court an ex parte motion, based on 5 U.S.C. § 552(a)(6)(C), seeking a stay of plaintiff Exner's civil action pending "government review" of any Exner files.
The government argued that the huge number and volume of demands under the Act had created a backlog and that it was impossible to fulfill Exner's demand without giving her preference over other parties who had filed their demands at an earlier date. Thus, the government asserted that in order to maintain its "first come first served" policy, Exner should await her turn. On April 20, 1976, the district judge denied the government's motion for a stay. It is from this order which the government appeals.
The issue thus raised is apparently one of first impression in this Circuit. Fortunately, one other Circuit (the District of Columbia Circuit) has considered the problem in Open America, et al. v. The Watergate Special Prosecution Force, et al., --- F.2d ---- (decided July 7, 1976).
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