has terminated any and all practices of expediting Clinton FOIA requests, and that any time advantages initially enjoyed by those who made the Clinton requests have been remedied, and given plaintiffs' failure to prove otherwise, ordering the Department of State to expedite plaintiffs' Perot requests is neither required nor merited.
Besides failing to show a substantial likelihood of success on the merits, plaintiffs have not established that the absence of emergency relief would result in irreparable injury. Even if this Court were to direct the speed up of the processing of their requests, Mr. Holland and The Nation have not shown at this time that they are entitled to release of the documents they seek. To the contrary, it is undisputed that at least some of the documents requested by plaintiffs are probably exempt from production under the FOIA, and plaintiffs have failed to obtain from Mr. Perot the waivers which might have proved necessary for release of that information.
Of course, this Court likely will be asked, after processing is completed, to make a final determination of the validity of any exemptions claimed by the defendants regarding plaintiffs' requests, but, notwithstanding any Order this Court may issue in the future, it appears most unlikely, if not impossible, that the documents can be processed and inventoried, that the agencies can claim any exemptions, that the parties can fully brief the issues, and that the Court can finally review the matters before the November 3, 1992 election.
Granting plaintiffs the emergency relief they seek will harm third parties. All four defendants have limited resources to process FOIA requests and the Court currently is inundated with cases seeking judicial review of FOIA activities. Accordingly, any expedited treatment of plaintiffs' requests will delay the processing of many other requests made ahead of plaintiffs by persons or entities not parties to this suit. While the Court does not belittle the public importance of disseminating information concerning Mr. Perot before the election, it must acknowledge and consider the interests of others in timely obtaining the information they seek from government agencies.
Finally, the public interest does not favor the entry of a temporary restraining order. Ordering the agencies to disregard their first-in first-out approach and to speed up the processing of plaintiffs' FOIA requests would create an unworkable precedent and would severely jeopardize the public's interest in an orderly, fair, and efficient administration of the FOIA. Were the Court to grant plaintiffs' motion and order expedited processing of their Perot-related requests, how could the Court then deny expedited processing of the more than twenty other FOIA requests relating to the other Presidential and Vice Presidential candidates should the persons or entities who submitted those FOIA applications properly and promptly file suit? The expedition, so to speak, does not stop there. If the Court were to order departure from the first-in first-out approach in this case, where would it draw the line in the future? What about Congressional elections? Judicial nominations? Or cabinet appointments? Such precedent might also require agencies to expedite the processing of FOIA requests before important legislative votes or agency rulemaking. While the Court clearly recognizes the importance of an informed electorate, it also acknowledges the importance of a workable standard for agencies to follow when processing requests. Requiring agencies and courts to weigh and consider which types of elections and political concerns merit expeditious treatment and to determine the priority given to each concern would create unnecessary and undue burdens on those agencies.
Accordingly, for the reasons state herein, plaintiffs' motion for a temporary restraining order is denied.
Nonetheless, the shifting positions of the State Department as reflected in the defendants' own exhibits, the recent allegations published in newspaper articles, accurate or not, which were submitted to the Court, and the government's failure to answer the Court's questions of how, when, and by whom the alleged mistakes at issue were made causes the Court significant concern. As earlier stated, the denial of plaintiffs' motion for a temporary restraining order is based in measurable part on the government's uncontradicted guarantees that no documents discovered during expedited processing of any Clinton requests have been released by the State Department. Accordingly, the defendants are ordered to notify the Court and counsel for the plaintiffs, through affidavits and within 48 hours of discovery, of any past, present, or future release of any document by the State Department concerning any Presidential or Vice Presidential candidate resulting from expedited processing of any FOIA request submitted by a person or entity after June 22, 1992, the date plaintiffs filed the FOIA requests at issue in this case.
In accordance with 5 U.S.C. § 552(a)(6)(C), the Court will retain jurisdiction over this case, and there shall be a status conference on November 20, 1992 at 9:30 a.m. in Courtroom 18 to determine the future progress of this case, including briefing schedules, if appropriate.
IT IS SO ORDERED.
October 23, 1992
JOYCE HENS GREEN
United States District Judge