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LISEE v. CIA

August 6, 1990

JEAN FRANCOIS LISEE, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

Plaintiff is an author who filed the instant lawsuit to obtain information pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., for a book entitled In the Eye of the Eagle which will document how the United States government analyzed and reacted to the Quebec separatist movement from the early 1960s to the May 1980 referendum in which the Quebec electorate rejected the separatist option. The plaintiff has sought information from seven United States government agencies: Central Intelligence Agency ("CIA"), Defense Intelligence Agency ("DIA"), Department of the Army ("Army"), Federal Bureau of Investigation ("FBI"), National Security Agency ("NSA"), National Security Council ("NSC"), and Department of State ("State").

 This matter is before the Court pursuant to the motion of plaintiff for orders directing several defendants to file Vaughn indices and the motion of defendants FBI and NSC for a stay of proceedings.

 I. Motion for a Stay of Proceedings

 The FBI and NSC have invoked 5 U.S.C. § 552(a)(6)(C) and Open America v. Watergate Special Prosecution Force, 178 U.S. App. D.C. 308, 547 F.2d 605 (D.C. Cir. 1976), requesting a stay of further proceedings. Section 552(a)(6)(C) 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.

 Exceptional circumstances include when

 
an agency . . . is deluged with a volume of requests for information vastly in excess of that anticipated by Congress, when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection (6)(A), and when the agency can show that it "is exercising due diligence" in processing the requests.

 Open America, 547 F.2d at 616.

 The FBI processes FOIA requests on a first-in, first-out basis. The Declaration of Earl E. Pitts explains that the plaintiff's request involves about 1,110 pages of material which must be reviewed by the FBI's Document Classification Appeals and Affidavits Unit. Mr. Pitts estimates that because of the backlog of work in that Unit, it will take about 14 months to complete a classification review of the documents and produce a Vaughn affidavit justifying whatever material is withheld from plaintiff. Moreover, the Second Declaration of Angus B. Llewellyn estimates that because of the backlog of nearly 10,000 FOIA requests it will take the FBI another 12 months after the classification review is finished to complete a Vaughn index of the remaining materials withheld from plaintiff.

 The NSC also processes FOIA requests on a first-in, first-out basis. On July 13, 1989 the Declaration of Steven D. Tilley explained that extraordinary demands had been placed upon the Information Policy Directorate of NSC, and estimated that plaintiff's request for information would not be reached for processing for about 33 months. The Second Declaration of Tilley, however, explains that the backlog of requests pending ahead of plaintiff's has been significantly reduced and estimates that processing will be initiated in less than 12 months.

 Accordingly, based on the affidavits, this Court finds that the defendants FBI and NSC have made the requisite showing under Open America of exercising due diligence to warrant a stay. See 547 F.2d at 615.

 Moreover, the plaintiff has made no showing that there is a "genuine need and reason for urgency in gaining access to Government records ahead of prior applicants for information." 547 F.2d at 615-16. As the Court provided in Open America,

 
if any request for information can be the subject of a court order to the agency to place the request in a priority position, without any showing in court of urgency or exceptional need, then these court-ordered cases will take their places along with those ...

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