THOMAS F. HOGAN, Judge.
The plaintiffs have brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel the Internal Revenue Service (IRS) to release to them certain "documents and records" purportedly within the IRS's possession and control. The case is presently before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), on the grounds that plaintiffs have failed to exhaust their administrative remedies. Upon consideration of defendant's motion, and the plaintiffs' opposition thereto, this Court concludes that the defendant's motion must be denied, but that this action shall be dismissed sua sponte for failure to state a claim.
On October 17, 1984 the IRS National Office received a letter from plaintiff Hudgins requesting, under FOIA the "documents" describing: 1) the purpose for which an individual's social security number, required to be disclosed on federal tax returns, is used in terms of rights, benefits and privileges related to the Social Security Program, 2) the effects, in terms of rights, benefits and privileges under the Social Security Program, of failing to provide the social security number, and 3) whether a social security number is required on a federal tax return to obtain a benefit under the Social Security Program. (Complaint, Exhibit 1; Declaration of P.A. Fauconnet, Chief of the Public Services Branch, Disclosure and Security Division of the IRS [hereinafter Fauconnet Declaration], at para. 2.) On October 11, 1984 the IRS received a letter from plaintiff Billman similar to that received from plaintiff Hudgins, but requesting such documents under FOIA related to "federal programs" as opposed to the Social Security Program specifically. (Declaration of H.A. Williamson, Jr., Public Services Branch, Disclosure and Security Division of the IRS [hereinafter Williamson Declaration], at para. 2 & Exhibit B.)
The IRS responded to plaintiff Hudgins' letter on October 26, 1984, nine days after receipt, informing the plaintiff that he had failed to identify the requested records in sufficient detail to permit a search. (Complaint, Exhibit B; Fauconnet Declaration, at para. 3.) Plaintiff Billman's request was responded to five days after receipt, in a letter dated October 16, 1984, informing plaintiff that the information he requested could be found in the Internal Revenue Code. (Williamson Declaration, Exhibit B.)
After the responses from the IRS the plaintiffs did not file anything further with the IRS, but instead initiated this action. The defendants maintain that the plaintiffs' failure to pursue an administrative appeal constitutes a failure to exhaust administrative remedies, depriving this Court of subject matter jurisdiction.
The Freedom of Information Act does require that an individual exhaust his administrative remedies prior to filing a judicial action. See Hedley v. United States, 594 F.2d 1043 (5th Cir. 1979). The Act specifically provides, however, that administrative remedies will be deemed exhausted if the agency fails to comply with the statutory time limitations for making a determination. 5 U.S.C. § 552(a)(6)(C). The defendant asserts that the plaintiffs do not fall within this exception to actual exhaustion of administrative remedies because each of the plaintiffs' requests was responded to within 10 days of receipt.
With respect to time limitations, however, FOIA specifically provides that the agency shall
determine within ten days . . . after the receipt of such request whether to comply with such request and shall immediately notify the person making such request of such determination, and the reasons therefor, and the right of such person to appeal to the head of the agency any adverse determination.