the Privacy Act an agency is required to establish a process for administrative appeals. 5 U.S.C. § 552a(f)(4). Here an individual who is denied access to records concerning him may appeal that decision to the Assistant Attorney General, Office of Legal Policy, by filing a written appeal within 30 days of receipt of denial. 28 C.F.R. § 16.47. Plaintiff has not complied with this requirement. He has failed to exhaust his available administrative remedies.
Even if plaintiff had exhausted all of the available administrative remedies, he cannot claim that the records requested have been constructively denied. The agency notified plaintiff that it intends to comply with his Privacy Act research request. Presently the agency is deluged with a high volume of Freedom of Information/Privacy Act requests. It has attempted to respond to all requests in as short a time as possible and to answer each request on a first-come, first-serve basis in accordance with Open America v. Watergate Special Prosecution Force, 178 U.S. App. D.C. 308, 547 F.2d 605 (D.C. Cir. 1976). The agency had indicated that there are over 400 requests that must be processed to completion before plaintiff's request can be completed. Affidavit of Florastine P. Graham at 6. It states that because of staffing cutbacks and the number of requests awaiting completion ahead of plaintiff's, it may not be until December 1983 before plaintiff's request is completed. Id. The agency is complying with plaintiff's request as quickly as possible. Presently, the agency is searching for plaintiff's records. Exhibit D, Defendant's Motion to Dismiss or in the Alternative, for Summary Judgment. The Court should not interfere with that process. See Open America v. Watergate Special Prosecutions Force, 547 F.2d at 615-16 (if agency demonstrates diligence in processing plaintiff's request and plaintiff fails to show genuine urgency, courts should not give priority to plaintiff's request).
An appropriate order is attached.
This matter having come before the Court on plaintiff's motion for summary judgment and defendant's motion to dismiss or in the alternative, for summary judgment, and the Court having considered the documents filed in support of these motions and the entire record herein, it is by the Court this 31st day of October 1983,
ORDERED that plaintiff's motion for summary judgment is denied and defendant's motion to dismiss is granted without prejudice.
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