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ALLEN v. FBI

March 19, 1982

MARK A. ALLEN, Plaintiff
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants


Green, District Judge


The opinion of the court was delivered by: GREEN

This action arises under the Freedom of Information Act, 5 U.S.C. § 552 (the Act). Plaintiff has moved for waiver of all search fees and copying costs. The non-congressional defendants contend that plaintiff has failed to exhaust his administrative remedies, and that the administrative denial of his fee waiver request was not arbitrary and capricious. For the reasons expressed below, the Court grants plaintiff's motion.

 I.

 On December 12, 1980, Mark Allen wrote to the Federal Bureau of Investigation (FBI), requesting "all correspondence or any records of any communications between the U.S. House Select Committee on Assassinations and the Federal Bureau of Investigation relating to the Select Committee's investigation into the assassination of President John F. Kennedy." Mr. Allen requested these records "as part of a program of scholarly research into the work of the Assassinations Committee," and sought a waiver of search and copying fees. By letter dated January 30, 1981, Mr. Allen was informed that the FBI was in the process of determining whether Congress maintained control over the requested documents. The fee waiver determination was held in abeyance pending that determination.

 Six weeks after this initial response, the FBI wrote Mr. Allen again. In this letter, dated March 13, 1981, the FBI referred to two letters from Congress requesting non-disclosure of the Assassinations Committee's records. Neither of the letters was provided to Mr. Allen. Although the FBI did not explicitly adopt the Congressional position, the letter informed Mr. Allen he could appeal "any denial contained herein" to the Associate Attorney General. Mr. Allen appealed the FBI's determination by letter dated March 19, 1981.

 On April 6, 1981, plaintiff wrote to the FBI again and asked for all records relating to the Assassinations Committee's investigation of President Kennedy's murder not covered by his previous request. Plaintiff requested specifically material generated by the Assassinations Committee which "does not qualify as a congressional record . . ." He further asked for a waiver of all copying and search fees or, in the alternative, that the requested records be available in the FBI's public reading room for inspection and copying. The FBI reiterated its refusal to release material "generated in response to requests from" the Assassinations Committee. This denial was dated April 13, 1981. Four days later, Mr. Allen appealed the FBI's determination to the Associate Attorney General. Plaintiff was informed that decision on both appeals would be delayed because of a substantial backlog of pending appeals and a shortage of attorneys. The record does not reflect any action by the Associate Attorney General on either of plaintiff's appeals.

 Plaintiff filed this action on May 22, 1981. On December 8, 1981, defendants stated that Congress did not maintain control over all of the requested records. Rather, defendants represented that four categories of documents are agency records: (A) FBI records sent to the Assassinations Committee; (B) FBI records made available to the Assassinations Committee at FBI offices; (C) Internal FBI memoranda pertaining to the Assassinations Committee; and (D) FBI communications with other agencies pertaining to the Assassinations Committee. At hearings before the Court on December 8, 1981 and December 22, 1981, defendants stated that the question of fee waiver remained unresolved. Not until December 31, 1981, the day plaintiff filed and hand-served the instant motion, did the FBI send a letter to plaintiff denying his fee waiver request.

 II.

 The doctrine of exhaustion of administrative remedies need not be applied rigidly in every case. The doctrine provides "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." McKart v. United States, 395 U.S. 185, 193, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969), citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). It is subject to numerous exceptions. Application of the doctrine requires an understanding of its purposes and of the particular administrative scheme involved. Ibid.

 Defendants argue that plaintiff has failed to exhaust his administrative remedies by not appealing the FBI's December 31, 1981 denial of fee waiver. The denial informed plaintiff of his right to appeal within thirty days to the Assistant Attorney General.

 This is not a case where the applicable statute requires an administrative appeal from the initial denial of a fee waiver. Cf. Myers v. Bethlehem Shipbuilding Corp., supra. Rather, the Act states that a requester has exhausted his remedies when the agency fails to respond to an initial request within ten days or an appeal within twenty days. 5 U.S.C. § 552(a)(6)(A), (C). Since defendants have not complied with the statutory time limits for either of plaintiff's requests, plaintiff has exhausted his administrative remedies. Marschner v. Department of State, 470 F. Supp. 196 (D. Conn. 1979); Information Acquisition v. Department of Justice, 444 F. Supp. 458 (D.D.C. 1978). Plaintiff asked for fee waivers in both of his requests. Once the record requests were denied, plaintiff could assume reasonably that the fee waiver requests were also denied. Plaintiff's administrative appeals thus included his request for a fee waiver.

 Defendants contend that there was no need to respond to the fee waiver request until they determined that some of the records belonged to the FBI, not Congress. This determination was made December 8, 1981, twelve months after plaintiff's initial request. Three weeks more passed before plaintiff's fee waiver request was denied. With due consideration to the number of records involved in this action and the complexity of the legal issues, defendants' actions do not represent the prompt response required by the Act. See U.S.C. § 552(a)(3) (". . . each agency, upon any request for records which (A) reasonably describe such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person"). To require plaintiff to appeal the December 31 denial of fee waiver would cause further unjustified delay.

 III.

 Alternatively, defendants contend that their denial of a fee waiver should be upheld because it was not ...


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