Ferguson v. FBI

• Decision Date: 24 October 1989
• Docket Number: No. 89 Civ. 5071 (RPP).,89 Civ. 5071 (RPP).
• Citation: 722 F. Supp. 1137
• Parties: Herman Benjamin FERGUSON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — Southern District of New York

722 F. Supp. 1137

Herman Benjamin FERGUSON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 89 Civ. 5071 (RPP).

United States District Court, S.D. New York.

October 24, 1989.

Center For Constitutional Rights, New York City by Joan P. Gibbs, Stephanie Y. Moore, Colin Moore, Brooklyn, N.Y., for plaintiff.

Benito Romano, U.S. Atty. S.D. New York, New York City, Gabriel W. Gorenstein, Asst. U.S. Atty., of counsel, for defendant.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

This matter is before the Court on plaintiff's motion for a preliminary injunction to compel expedited processing of Freedom of Information Act (FOIA) requests for documents and indexes, and on defendant's motion to extend the time required to respond to plaintiff's requests.

On June 15, 1968, a jury in a New York state court found plaintiff Herman Benjamin Ferguson guilty of conspiracy to murder. Mr. Ferguson was a prominent African American activist in the New York City area at the time. He fled to Guyana in 1970 after exhausting his appeals and before serving any of his 3½ to 7 year sentence. He was then promptly indicted on charges of bail jumping in the first degree.

On April 6, 1989, Mr. Ferguson voluntarily returned to New York. The following day he was arraigned on the bail jumping indictment and began serving his sentence on the conspiracy conviction. On June 30, 1989, Acting State Supreme Court Judge Joan O'Dwyer dismissed the 1970 bail jumping indictment because of the unavailability of the grand jury minutes for inspection. The grand jury again indicted plaintiff on the bail jumping charge on August 31, 1989.

Currently pending in the New York courts are plaintiff's actions to vacate his original conviction and to dismiss the bail jumping indictment. Plaintiff has made Freedom of Information Act requests to the defendant Federal Bureau of Investigation (FBI) for documents which plaintiff contends may aid his state court efforts.¹

The matter before the Court concerns the timing of defendant's fulfillment of the FOIA requests. Plaintiff made FOIA requests in August 1980 and April 1989, respectively, for FBI documents relating to himself. The FBI responded to the 1980 request in 1984 by supplying 984 edited pages to plaintiff's attorney at the time, Mr. Lennox S. Hinds. The FBI agrees to begin processing the 1989 request in June 1990. The 1989 request will yield approximately 3,400 pages which will take 120 days to compile, according to defendant. The 1989 application will yield more documents than the 1980 request because of the extra nine years of files and the addition of requests directed to the New York and Philadelphia field offices of the FBI.

Plaintiff believes records compiled between 1963 and 1970 will aid his state court cases. Defendant declares that 2,411 pages of the 1989 request relate to the years 1963-1970. Defendant contends that this priority portion of the 1989 request could be processed in 85 days, commencing in June 1990. At oral argument and in her "Post-Argument Memorandum," plaintiff's attorney set forth a further prioritized segment of time: January 1965 through October 1968, from the time of the alleged opening of a New York field office file on plaintiff through the conclusion of plaintiff's conspiracy trial.

Plaintiff also has requested the compilation of Vaughn indexes, which would explain the necessity for each redaction in both the 1980 and 1989 requests. Creation of a Vaughn index is a standard procedure which precedes a challenge in a district court to the appropriateness of redactions in response to FOIA requests. See Brown v. FBI, 658 F.2d 71, 74 (2d Cir.1981); Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The FBI agrees to compile an index for the 1980 request, but asserts that a request for an index relating to the 1989 request is premature because plaintiff has not yet seen the documents.

Defendant estimates that the creation of an index pertaining to the entire 1980 request will take 60 days and cannot begin until June 1990. Alternatively, creation of an index for the 1963-1970 portion of the 1980 request would take 32 days, also commencing in June 1990.

Plaintiff seeks a preliminary injunction to expedite fulfillment of the Vaughn index requests and the 1989 FOIA request. Defendant opposes the motion and moves, in reference to the 1989 request, for an extension of the time limit set by FOIA for response to requests for records.

I. The 1989 Request

Three factors control the Court's determination of an appropriate schedule for defendant's response to the 1989 request: (1) the statutory time limit, (2) the statutory extension test, and (3) the expedition test. The Court considers each factor before arriving at a conclusion.

A. The Statutory Time Limit and the `Due Diligence-Exceptional Circumstances' Extension Test

FOIA, 5 U.S.C. §§ 552(a)(6)(A), (B), sets a limit of 20 days from the request date (10 days with a 10 day extension) for the completion of an agency's response. Section 552(a)(6)(C) grants district courts discretion to allow an agency additional time upon a government showing of "exceptional circumstances" and "due diligence." FOIA does not require district courts to grant extensions upon a showing of "due diligence" and "exceptional circumstances" and the government acknowledged at oral argument that the Court has full discretion in determining the petition.

In the D.C. Circuit, courts generally have granted extensions when presented with evidence of an overburdened agency following necessary procedures. Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C.Cir. 1976) (refusing to disrupt agency's "first-in, first-out" system); Reagan-Bush Comm. v. FEC, 525 F.Supp. 1330, 1337 (1981) (same).

Judge Levanthal's concurrence in Open America, the Ninth Circuit and assorted district courts have interpreted Section 552(a)(6)(C) as requiring more limited deference to the contentions of agencies. See Open America, 547 F.2d at 617-18 (Levanthal, J., concurring) (only "unforeseeable" backlog should qualify as "exceptional circumstance"; and whether agency has applied for additional resources to handle burden is part of "due diligence" factor); Exner v. FBI, 542 F.2d 1121 (9th Cir.1976) (following Levanthal concurrence); Mayock v. INS, 714 F.Supp. 1558, 1565-66 (N.D.Cal. 1989) (routine, "normal" backlog is not "exceptional"); Califano v. Wampler, 588 F.Supp. 1392 (N.D.Ill.1984) (dictum on danger of Section 552(a)(6)(C) "swallowing" the 20 day response period set by Congress).

The basis for more stringent requirements for extensions is primarily the legislative history which states that delay can be "tantamount to denial." H.Rep. No. 876, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, 6267, 6271.

Yet in practice, courts usually grant at least some sort of "due diligence-exceptional circumstances" extension in the form of an equitable compromise. Ettlinger v. FBI, 596 F.Supp. 867, 878-79 (D.Mass.1984) (after agency delay of nearly one year, court orders FBI to produce documents and Vaughn index within 60 days to avoid court supported undermining of FOIA); Califano v. Wampler, supra, (ordering agency to proceed efficiently with the "first in, first out system" and to deliver individual documents as soon as they become ready); Hinton v. FBI, 527 F.Supp. 223, 225 (E.D.Pa.1981) (ordering piecemeal production in ninety day intervals with documents most urgently needed by plaintiff to be produced first); Hamlin v. Kelley, 433 F.Supp. 180 (N.D.Ill.1977) (ordering immediate commencement of production of 20% of requested documents with an additional 20% to be delivered every 30 days).

Plaintiff contends that the FBI's projected dates for completing the 1989 request are unsatisfactory under the "due diligence-exceptional circumstances" test in light of the anti-delay policy behind FOIA.² Defendant responds by detailing its diligence in affidavits explaining each step of the lengthy procedure necessary for a response to Mr. Ferguson's 1989 application. Defendant further contends that it currently faces the exceptional circumstance of a being overburdened. Responsible for this burden is the 45.6% increase in requests over the last three years and repeated denials of the FBI's requests to the Office of Management and Budget for more personnel to handle the overload.

B. Expedition Test

In addition to the statutory time limit and the Section 552(a)(6)(C) extension test, a third factor enters the Court's determination of the appropriate timing for a response to plaintiff's April 1989 FOIA request. Courts and some agencies, have interpreted FOIA to require expedited processing of requests whenever an "exceptional need or urgency," Open America, 547 F.2d at 616, or due process right is at stake, Cleaver v. Kelley, 427 F.Supp. 80, 81 (D.D.C.1976) (documents needed for criminal trial); see also Def.Ex.D (Justice Department policy of expediting processing of documents needed by parole applicants for use in their hearings).

The due process interest must be substantial. Thus a need for the information for use in civil proceedings has generally been held to be insufficient to require expedition. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 243, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978) (witnesses statements need not be released prior to an unfair labor practice hearing because "FOIA was not intended to function as a discovery tool") (emphasis in original); Def.'s Ex.D (citing unpublished Rivera v. Drug Enforcement Agency, (D.D.C.1981) ("A pending civil suit does not generally qualify a FOIA demand for expedited processing.")).

Defendant contends that plaintiff's need for the 1989 request is primarily to help vacate his 1968 conviction. That need constitutes too weak a due process interest to trigger expedition, according to defendant. The only...