Fiduccia v. U.S. Department of Justice
| Decision Date | 04 August 1999 |
| Docket Number | PLAINTIFFS-APPELLANTS,DEFENDANTS-APPELLEES,No. 97-16420,97-16420 |
| Citation | 185 F.3d 1035 |
| Parties | (9th Cir. 1999) DANIEL J. FIDUCCIA; EDWARD H. KOHN,, v. UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF DEFENSE; UNITED STATES DEPARTMENT OF THE TREASURY, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lawrence Teeter, Los Angeles, California, for the plaintiffs-appellants.
Jocelyn Burton, Assistant United States Attorney, San Francisco, California, for the defendants-appellees.
Appeal from the United States District Court for the Northern District of California James Ware, District Judge Presiding. D.C. No. CV-92-20319-JW
Before: J. Clifford Wallace, Thomas G. Nelson, and Andrew J. Kleinfeld, Circuit Judges.
This case involves various Freedom of Information Act issues.
Fiduccia and Kohn filed a Freedom of Information Act request in 1986, which they have supplemented with several more in subsequent years. The 1986 request, by Fiduccia only, is on his letterhead listing him as providing "research" and "publishing services." It asks for six broad categories of documents, ranging from documents filed by an executive department with a Senate committee, to "all documents... relating to the seeking... of search warrants " for materials held by third parties, and "all documents... relating to disciplining of federal officers or employees who have violated the Privacy Protection Act of 1980."
He repeated and expanded his request in 1992, on a letterhead listing him as providing "legal affairs writing" and "special projects." He added, for example,"[a]ll documents... relating to civil suits filed against the Justice Department and/or any of its... agents following and as a result of the search warrants...." Thirteen days later, Fiduccia and Kohn (who filed a declaration dated a couple of days before saying he joined in Fiduccia's requests) sued the Department of Justice under the Freedom of Information Act for noncompliance. The parties eventually stipulated to stay the lawsuit for six months. The stipulation says that "the parties have agreed that the most productive process to facilitate an informal resolution of plaintiff's FOIA lawsuit is to have plaintiffs submit a new FOIA request," which Fiduccia and Kohn expected to complete the same week, and "[b]ecause of the breadth of the new request, the parties have agreed that a six-month period is necessary to process the request and allow the plaintiffs sufficient time to review the documents generated by the request."
A couple of weeks later, in May of 1993, Fiduccia and Kohn submitted a new request, which is the subject of this lawsuit. The new request is much more focused and specific than the old ones. It asks for all documents relating to thirteen different searches done by various federal law enforcement agencies. The documents were to include all papers relating to the searches and to obtaining the search warrants, and also all papers relating to any lawsuits against any federal agencies on account of the searches. The searches were all over the country - Minneapolis, Spokane, Puerto Rico, New York, Los Angeles, and elsewhere. The request states that Fiduccia and Kohn are journalists and asks for a waiver or reduction of fees.
Thousands of documents were produced free of charge. The Executive Office of United States Attorneys produced 1,387 documents in full, 16 pages in part, and withheld 15 pages. Other agencies, including the Solicitor General's Office, the Drug Enforcement Administration, the Internal Revenue Service, the Immigration and Naturalization Service, the Department of Defense, and the Federal Bureau of Investigation, produced, redacted, and withheld numerous additional documents and pages.
The parties made cross motions for summary judgment regarding the documents redacted and not produced. This appeal by Fiduccia and Kohn is from the district court's partial grant of summary judgment to each side, and its subsequent modification of its judgment regarding the Immigration and Naturalization Service and Department of Defense documents.
Though this is review of a summary judgment, our review in a FOIA summary judgment case is not simply de novo, nor do we ask whether there is a genuine issue of fact in most cases. Instead, in a FOIA case, we first determine whether the district Judge had an adequate factual basis for decision, and if not, remand. If there was an adequate factual basis, we will overturn the district court's fact findings underlying its decision only for clear error. We review de novo whether a FOIA exemption applies to particular material.1 On matters of discretion, we review for abuse of discretion.
Plaintiffs requested all papers relating to searches of a newspaper in Minneapolis and of a television station in Spokane. The vague 1986 request covered these materials, and the more precise 1993 request made it clear that these particular searches were the subject of the request. The FBI found the papers but needed until 2001 to produce all of them.
The FBI's explanation for why it needed another eight years was provided in two affidavits, by a supervisory special agent and a paralegal. They explained that requests covering no more than a hundred pages went into one queue, over a hundred into another, so that one big request would not delay numerous small ones. These two files contained around 1,800 pages, so they went into the slow queue. The slow queue was delayed because of the increased workload of the FBI unit handling FOIA requests, the shortage of personnel, a big case that happened to come along, an increase in litigation, and a new law giving priority to requests concerning the assassination of President Kennedy.2
The district court granted the FBI's request for a stay until 2001. Plaintiffs argue that the FBI did not make a sufficient showing for the stay, had not asked for enough money from Congress to deal with its increased FOIA request burden, and that the district court should have required the FBI to give them a preference because they had filed a FOIA lawsuit and were journalists.
We reject the arguments that plaintiffs were entitled to a preference, that is, that they were entitled to jump the queue. They argue that they should get a "litigation preference," that is, that requesters who sue agencies under FOIA should have their requests handled before requesters who do not file law suits. They have filed a FOIA lawsuit. Although we have mentioned that filing suit "can" create a preference in the discretion of the district Judge in appropriate circumstances, we have never said that it must.3 There is no reason evident why it should in this case. An automatic preference for no reason except the filing of a lawsuit would generate many pointless and burdensome lawsuits so we have never adopted a rule of automatic preference.
The statute provides for "expedited processing" where a requester demonstrates "compelling need." But the statute expressly provides that district courts do not have jurisdiction to review agency denials of expedited processing after the agency has provided a complete response to the request for expedition.4 Plaintiffs have not argued nor have they shown entitlement to expedited processing, nor that the district court had jurisdiction to review any denial of it. Thus there is no basis in this case for enabling plaintiffs to jump the queue.
But the queue is too long. Even without jumping the queue, people who file Freedom of Information Act requests in 1986, revised and clarified in 1993, cannot be made to wait until 2001. That is 15 years from the initial request, eight years from the request that could be plainly understood. The value of information is partly a function of time. Hardly anyone who needs information can anticipate having the same need for it, or use for it, 15 or eight years later. Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters, and authorized agencies to give themselves extensions for 10 days for "unusual circumstances."5 Telling the requester "You'll get the documents 15, or eight, years from now" amounts as a practical matter in most cases to saying "regardless of whether you are entitled to the documents, we will not give them to you."
At the time the district court decided this case, the statute authorized the district court to retain jurisdiction and allow the agency additional time if the government could show "exceptional circumstances" and "due diligence."6 The district court's findings do not establish that the circumstances delaying processing were "exceptional" rather than ordinary and expected, and that the agency exercised "due diligence." The decision of the executive branch not to pass on the bureau's request to the legislative branch would be consistent with a policy choice by the executive branch to delay FOIA requests rather than ask for additional funds to meet them in a timely way.7
Though FOIA doubtless poses practical difficulties for federal agencies, federal agencies can educate Congress on the practical problems they have, and attempt to persuade Congress to change the law or provide additional funds to achieve compliance. So long as the Freedom of Information Act is the law, we cannot repeal it by a construction that vitiates any practical utility it may have.
This is not to denigrate the practical problems. It may be that agency heads, such as the Attorney General in this case, can be forced by the Freedom of Information Act to divert staff from programs they think more valuable to Freedom of Information Act compliance. It may be that people with ulterior motives can use Freedom of Information Act requests to interfere with the proper functioning of federal...
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