The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The plaintiffs, American Broadcasting Companies, Inc., et al., ("ABC") filed this action on February 21, 1984, under the Freedom of Information Act, 5 U.S.C. § 552, as amended. Plaintiffs seek access to two groups of tape recordings, transcripts, and notes made by, or at the direction of, the defendant United States Information Agency ("USIA") Director, Charles Z. Wick. On January 31, 1984, the defendants denied the request as to both groups of documents. As to the first group of documents, initially, USIA relied upon only one justification for its denial of the plaintiffs' request, "that the documents in question are not 'agency records, ' rather, they are 'personal papers' of the Director; and thus, do not fall within the purview of FOIA."
Three months later, defendants indicated, for the first time, their intention to rely upon other, yet to be named, exemptions, in the event that the 'personal papers' defense fails. On May 1, 1984, the defendants filed a motion for partial summary judgment on the "agency records" issue.
This matter is now before the Court on plaintiffs' motion to compel a Vaughn index, plaintiffs' motion for a continuance and to take five depositions, and plaintiffs' motion for a status conference. The Court will examine each of these motions in turn.
Plaintiffs move that this Court order the defendants to provide an appropriate Vaughn Index and itemization that specifies, with reference to particular documents, all of the exemptions which the government intends to claim. Citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), plaintiffs urge that as the "requester of documents" they are entitled to know which exemptions the defendants intend to rely upon. Plaintiffs contend that a Vaughn index is necessary, in order to permit ABC to respond effectively to the government's refusal to make the documents available.
Courts have consistently recognized that "[a] Vaughn index is critical to the effective enforcement of FOIA litigation." Founding Church of Scientology, et al. v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 947 (D.C.Cir.1979). "Without such an index, neither the reviewing courts nor the individuals seeking agency records can evaluate the agency's basis for non-disclosure." Cuneo v. Schlesinger, 157 U.S. App. D.C. 368, 484 F.2d 1086, 1091 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
The defendants argue that the plaintiffs' request for a Vaughn index, at this stage of the litigation, is inappropriate and premature. Defendants contend that it makes sense to first resolve the agency's "threshold jurisdictional" defense, in advance of reviewing the defendants' proposed claims of exemptions under FOIA. USIA contends that "if the documents are not agency records, the plaintiffs have no right to them under FOIA or any other federal statute;" thus, the preparation of a Vaughn index would constitute an unnecessary waste of time and resources.
Plaintiffs counter with an argument that the defendants' proposal to assert its claims seriatim is contrary to the Act, and would serve only to delay the plaintiffs' access to the materials in issue.
Plaintiffs urge that such a piecemeal approach would not only significantly jeopardize the plaintiffs' journalistic interests; but would also enable the government to postpone the supplying of plaintiffs with the appropriate Vaughn index for an additional several months.
It is well-established law that "the FOIA mandates that all such litigation be speedily pursued and resolved." Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1322 (9th Cir.1981), vacated on other grounds, 454 U.S. 934, 102 S. Ct. 468, 70 L. Ed. 2d 242 (1981). Courts have consistently held that "delay by the defendant in raising defenses should be particularly disfavored." Id. The government should not be permitted to assert its theories seriatim absent the most compelling circumstances, as the interests of judicial economy and finality militate against a court's tolerating a piecemeal approach. Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 205 U.S. App. D.C. 91, 636 F.2d 838, 846 (D.C.Cir.1980). Accordingly, courts have directed that agencies not be permitted to make new exemption claims to a district court after the judge has ruled in the other party's favor. Id.
The plaintiffs place great reliance upon Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 792 (D.C.Cir.1980). The Ryan court warned of the dangers of permitting the government to raise its FOIA exemption claims one at a time, at different stages of the district court proceedings. It follows that courts have frequently held that the failure to raise a specific exemption in the district court will preclude consideration of the exemption on appeal. Jordan v. U.S. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 779 (D.C.Cir.1978). "All such claims should be raised at the district court level, as the government will not be permitted to try its theories seriatim absent extraordinary circumstances." Ryan, supra, 617 F.2d at 792.
However, as the plaintiffs point out, the defendants' argument ultimately turns upon a mere question of semantics. Defendants have cited no cases where a court has recognized a distinction between "exemptions" and "threshold jurisdictional" defenses. Moreover, the case law sets forth a policy requiring simultaneous presentation of FOIA exemptions in the district court. It makes sense that government agencies involved in FOIA litigation should be prepared to raise all claims under the FOIA, and in the alternative, ...