Open America v. Watergate Special Prosecution Force
| Decision Date | 15 March 1976 |
| Docket Number | No. 76-1371,No. 75-1121,No. 76-0288,415,No. 75-C-430,No.93-1200,93,U,No.93-876,No. 795-76,No.93-854,413,No. 76-0129,No. 93-502,76-1371,93-876,93-1200,93-854,76-0288,93-502,76-0129,795-76,75-1121,75-C-430 |
| Parties | , 178 U.S.App.D.C. 308 OPEN AMERICA, et al. v. The WATERGATE SPECIAL PROSECUTION FORCE, et al., Appellants. . Argued 27 April 1976. Decided 7 July 1976. Eloise E. Davies, Potomac, Md., with whom Leonard Schaitman, Washington, D. C., was on the motion, for appellants. Alan B. Morrison, Washington, D. C., was on the motion for appellees. Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Opinion filed by Circuit Judge LEVENTHAL concurring in the result. WILKEY, Circuit Judge: Action in the District Court was brought to compel disclosure within certain specified time limits of information sought under the Freedom of Information Act (FOIA). 1 In contrast with previous Freedom of Information Act cases, this suit does not deal with an interpretation of any of the exemptions to disclosure, but with the question of the time within which any compliance with or denial of a request must be made, as set forth in the 1974 FOIA amendments. 2 Ultimate access to the records is not, and may never be, the issue; the issue is under what time constraints administrative agencies should be compelled to act by a court at the behest of an information seeker. United States District Judge Aubrey Robinson granted plaintiffs' motion under Vaughn v. Rosen 3 to require detailed justification, itemization, and indexing of the documents within thirty days. Believing that the statutory interpretation urged by plaintiffs and upon which the District Judge acted is erroneous, we reverse. I. THE STATUTORY INTERPRETATION ISSUE A. Actions Taken by the Parties Plaintiffs' request under the Freedom of Information Act was made on 10 October 1975 by identical letters to the Attorney General of the United States, the Director of the FBI, and others, demanding the production for inspection and copying of all documents and files relating to the role of the former Acting Director of the FBI, L. Patrick Gray, in any aspect of the so-called "Watergate affai |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Eloise E. Davies, Potomac, Md., with whom Leonard Schaitman, Washington, D. C., was on the motion, for appellants.
Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Action in the District Court was brought to compel disclosure within certain specified time limits of information sought under the Freedom of Information Act (FOIA). 1 In contrast with previous Freedom of Information Act cases, this suit does not deal with an interpretation of any of the exemptions to disclosure, but with the question of the time within which any compliance with or denial of a request must be made, as set forth in the 1974 FOIA amendments. 2 Ultimate access to the records is not, and may never be, the issue; the issue is under what time constraints administrative agencies should be compelled to act by a court at the behest of an information seeker.
United States District Judge Aubrey Robinson granted plaintiffs' motion under Vaughn v. Rosen 3 to require detailed justification, itemization, and indexing of the documents within thirty days. Believing that the statutory interpretation urged by plaintiffs and upon which the District Judge acted is erroneous, we reverse.
Plaintiffs' request under the Freedom of Information Act was made on 10 October 1975 by identical letters to the Attorney General of the United States, the Director of the FBI, and others, demanding the production for inspection and copying of all documents and files relating to the role of the former Acting Director of the FBI, L. Patrick Gray, in any aspect of the so-called "Watergate affair." These letters admonished that "(f)ailure to reply to this request within the ten-day period provided by the Act will be treated as a denial of the request, and appeal will be sought." 4 Reply was made by the Director of the FBI on 5 November 1975, noting that the request had been received, and that on the day of receipt the FBI had 5,137 Freedom of Information Act requests on hand and was in various stages of completion on 1,084 of those cases. 5
4. Requests and appeals filed by members of Congress seeking records pertaining to themselves are regarded as having been filed by private citizens and are not given expedited consideration.
By letter of 12 November 1975 plaintiff Open America addressed an appeal to the "Appeals Officer, Freedom of Information Unit, Federal Bureau of Investigation," noting that "(i)f you do not act upon my request within 20 working days, I will deem our request denied." 6 On reaching its proper destination this letter, too, was duly acknowledged, the reply pointing out that the request had been assigned its priority number and would be processed in due course. Without detailing further exchange of correspondence between plaintiffs and officials of the Justice Department, it is sufficient to note that the failure of the FBI to complete the processing of this request within the statutory time limits, as interpreted by the plaintiffs, resulted in the filing on 22 January 1976 of the action in the District Court seeking to compel the FBI to comply with or deny immediately plaintiffs' request.
After plaintiffs obtained such an order, the Government defendants came to this court, seeking an immediate temporary stay of the District Court's order of 23 March 1976. 7 At oral argument all parties stated that they had no objection to the court considering this case on the merits, which we have done. 8
At no time have plaintiffs specified the purpose for which they desire access to the FBI files on the role of L. Patrick Gray in the Watergate affair, nor indeed under the Freedom of Information Act are they required to do so. More important to the issue in this appeal, however, may be that at no time have plaintiffs specified any urgent or exceptional need for this information which entitles them to a priority over the other 5,137 applicants whose requests under the Freedom of Information Act were on file with the FBI on the date plaintiffs' request was received. Rather, plaintiffs have relied throughout on a claim of absolute right to have their request processed within the statutory ten-day and twenty-day periods. 9
It is apparent from the action of the District Judge on this matter that he adopted completely plaintiffs' theory of the case. He held no hearing, he made no findings of fact, he gave no reasons for his action in granting plaintiffs' motion; he simply issued an order for the defendant officials to deliver to plaintiffs within thirty days the documents agreed to be produced and a detailed justification for documents claimed to be exempted from disclosure under the FOIA. We accept these actions of the District Judge to mean that he agreed with plaintiffs' interpretation of the statute, and that in the spirit of expediting all Freedom of Information Act requests, he saw no reason to delay matters by holding a hearing or taking the time to make detailed findings of fact or to elaborate upon his reasons. If the matter were as simple as plaintiffs claim it to be, and as the District Judge appeared to assume, this was a sensible course of action.
This is a case of first impression. There are no previous judicial decisions interpreting 5 U.S.C. § 552(a)(6)(A), that portion of the 1974 amendments on which plaintiffs base their argument and on which the District Judge acted. 10 We must therefore base our decision on the original Freedom of Information Act, the amendments of 1974, their legislative history, and the undisputed operative facts of this case, with scant resort to precedent.
Section 552(a) of Title 5, United States Code, was amended by adding:
(6)(A) Each agency, upon any request for records . . . shall
(i) determine within ten (working) days . . . after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination . . . .
(ii) make a determination with respect to any appeal within twenty (working) days . . . after the receipt of such appeal.
These "administrative deadlines" of Section 552(a)(6)(A) are modified by the following subparagraph (B), which provides that in "unusual circumstances," for example where the request involves voluminous records, or records must be obtained from field office or storage, the total time limits may be extended for an additional ten working days. Thereafter, an applicant who has not received either the information requested or denial of his request will be deemed to have exhausted his administrative remedies (subparagraph (C)), and may then bring suit in the appropriate district court pursuant to Section 552(a)(4)(B).
The specific language of the 1974 amendments on which the Government relies appears in 5 U.S.C. § 552(a)(6)(C): "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."
The Government defense, simply put, is that the FBI has indeed exercised "due diligence" in handling all informational requests, including this one, but that "exceptional circumstances" created by a virtual deluge of requests since the effective date of the FOIA amendments have prevented the agency from completing its review of the records sought by these and other applicants. Thus, defendants assert, under such circumstances Congress intended for the courts to utilize the authority granted them by subsection (6)(C) to relieve agencies of the burden of complying with the very strict statutory time limitations in subsection (6)(A). The "exceptional circumstances" provision was designed and inserted specifically as a safety valve for the new statute.
Subparagraphs (B) and (C) of Section 552(a)(6) both contain escape valves of a sort. (B) refers to "unusual circumstances," but only such unusual circumstances as are specified in this subparagraph will suffice for a ten-day extension of the limits of subparagraph (A). Those unusual circumstances are the need to collect the records from several separate places, voluminous records called for in the single request, and a need for consultation with other agencies. The ten-day extension is granted by the agency to itself, but only on notice to the requesting party.
The "exceptional circumstances" of subparagraph (C) are something different. "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." This was put in as a safety valve after the protests of the administration that the rigid limits of subparagraphs (A) and (B) might prove unworkable. 11 Subparagraph (C) obviously contemplates (1) that the agency will have found it impossible to respond to a request within the time limits specified, even with all due diligence, and for reasons not confined to those listed in subparagraph (B); 12 (2) that the requesting party will have gone to court; and (3) that the court will hear evidence (a) as to what "exceptional circumstances" may excuse the Government from the rigid time limits of subparagraphs (A) and (B), and (b) as to...
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