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FOIA Update: Approaching the Bench

FOIA Update
Vol. I, No. 4

Approaching the Bench

The Freedom of Information Act requires a response to an initial FOIA request within 10 working days(1) and a determination of an appeal from an initial denial within 20 days.(2) Either, but not both of these time periods may be extended for 10 days.(3) However, as agencies are acutely aware, the maximum allowable statutory time is simply insufficient in certain circumstances to properly process all requests. Although agencies expended over 47 million dollars in 1978 processing FOIA requests and will expend comparable sums this year, it remains certain that in some instances the agencies will simply be unable to comply with deadlines. Also, it is equally certain that some of the requesters who have not received a response within the deadline will file a civil suit.

Although no agency chooses to be a defendant in a FOIA lawsuit under than circumstances, an agency has an opportunity to present an explanation of why it failed to meet the deadline. Congress and the courts have recognized that circumstances could exist which may prohibit an agency from processing a request within the deadline.

Congress provided an escape valve in section 522(a)(6)(C) of the Act under which a court may grant an agency relief from the deadline in an exceptional circumstance. Specifically the Act 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.

The United States Court of Appeals for the District of Columbia Circuit in Open America v. Watergate Special Prosecution Force(4) made an exhaustive analysis of this provision and detailed some exceptional circumstances which warrant utilization of the safety valve. The use of this provision has been followed by the United States Court of Appeals for the Ninth Circuit,(5) adhered to in the District of Columbia(6) and utilized by the District Court for the District of Columbia.(7)

If an agency wishes to persuade a court that the additional time should be allowed, the agency must show:

(1) that "exceptional circumstances" exist and,

(2) that the agency is exercising "due diligence."

This showing can be made by affidavit.(8)

The Open America court outlined several useful points to consider in making the showing of what constitutes exceptional circumstances and due diligence.

First, the court found that the FBI's first-in, first-out (FIFO) processing procedure was "fair, orderly, and the most efficient procedure" under the circumstances. Second, the court found that there were no allegations by the requester that the FBI failed to allocate appropriate personnel to FOIA processing. Third, the court concluded that "exceptional circumstances" exist when current resources are inadequate to deal with the volume of requests and the agency is exercising due diligence.(9)

While not all agencies may be able easily to embrace the Open America tests, an agency must present an affidavit which, at a minimum, first presents a "short look at its present procedure for processing FOIA requests." Second, the agency should detail the volume of requests and its personnel and financial resources devoted to FOIA request processing. An agency should attach any pertinent regulations, policy statements or appropriate material relative to the affidavit.

In conclusion, an agency that makes a strong showing of a volume of requests and a personnel and financial resource problem should be buoyed by the court's statement in Open America(10) that "We do not see, either on the face of the statute or on any sane analysis of the situation confronting the FBI and all other Government agencies in regard to Freedom of Information Act requests, why we should order such a reallocation of resources."

*Prepared by the Assistant United State Attorney Dennis A. Dutterer. Mr. Dutterer is Deputy Chief of the Civil Division of the United States Attorney's Office of the District of Columbia.


1. 5 U.S.C. § 522(a)(b)(A)(i)

2. 5 U.S.C. § 552(a)(b)(A)(ii)

3. 5 U.S.C. § 552(a)(b)(B)

4. 547 F.2d 605 (D.C. Cir. 1976).

5. Exner v. Department of Justice, 542 F.2d 1121 (9th Cir. 1976). (District Court's refusal to allow additional time reversed on government's ex parte motion and District Court directed to determine if "exceptional circumstances" existed).

6. Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 n.42, (D.C. Cir. 1977); Cox v. Department of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979).

7. Cleaver v. Kelley, 415 F. Supp. 174 (D.D.C. 1974). (The District Court, later, while not disturbing its earlier ruling, ordered Cleaver's request moved to the head of the FBI's line); Stewart-Warner Corp. v. Customs Service, No. 79-2094 (D.D.C., October 17. 1979); Timken v. Customs Service, No. 79-2545 (D.D.C. December 13, 1979); Greentree v. DEA, No. 80-1007 (D.D.C. August 7, 1980). (Additional time allowed although Greentree argued the information was needed for an immediate hearing in his 42 U.S.C. § 1983 actions.)

8. Open America at 615.

9. Open America at 616.

10. 0pen America at 614.

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Updated August 13, 2014