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November 20, 1992

Scott Armstrong, et al., Plaintiffs,
George Bush, et al., Defendants.

The opinion of the court was delivered by: CHARLES R. RICHEY



 Before the Court are the Plaintiffs' motion to amend the complaint and motion for a Temporary Restraining Order. In their motions, the Plaintiffs request they be allowed to amend their pleadings to include additional information learned during discovery regarding the Defendants' electronic communication systems and that the Defendants be required to save material on these electronic communication systems until after the merits of the case have been decided.

 On November 18, 1992, the Court held a hearing regarding the Plaintiffs' motions. After considering the Plaintiffs' motions and replies, the Defendants' responses, the Defendants' surreply, the arguments of counsel for the parties, and the applicable law, the Court will grant both of the Plaintiffs' motions.


 Plaintiffs are suing for declaratory and injunctive relief under the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552, the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq. The Plaintiffs seek to prohibit the Defendants--including the President, the Executive Office of the President ("EOP"), the Archivist and the National Security Council ("NSC")-- from erasing any material stored on the "PROFS" electronic communication system due to the Defendants failure to comply with the FRA. The Plaintiffs also request immediate access under FOIA to PROFS agency records saved from the last two weeks of the Reagan Administration. *fn1"


 Pursuant to Federal Rule of Civil Procedure 15(a) and 15(d), the Plaintiffs have moved to amend their complaint for a third time to include new information learned recently in discovery about the type of automated systems used by the Bush Administration. *fn2"

 The Defendants object to the proposed amended complaint on three grounds. First, they argue that the Plaintiffs are impermissibly broadening the scope of this case by including electronic communication systems, other than PROFS, previously never involved in the suit, including the "OASIS," "Office Vision," "All-in-One," or "A-1" systems. Second, the Defendants contend that Plaintiffs are expanding the scope of their FOIA claim to include all information currently on the Defendants' electronic communications systems, even though the Plaintiffs' prior request specified the PROFS backup tapes of the Reagan Administration only. Finally, the Defendants contend this amendment is not appropriate as discovery has been closed in this case for over six months and the parties briefed all the pending issues in summary judgment motions before the Court four months ago.

 The Court is unpersuaded by the Defendants' objections to the Plaintiffs' proposed amendment because 15(a) of the Federal Rule of Civil Procedure provides that leave to amend a complaint "shall be freely given when justice so requires." This Rule has been liberally construed to allow amendment in the absence of undue delay or undue prejudice to the opposing party and there is none here. Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see Anderson v. USAIR, Inc., 260 U.S. App. D.C. 183, 818 F.2d 49, 57 (D.C. Cir. 1987).

 The amending of the Plaintiffs' complaint here simply updates the type of automated system introduced by the Defendants to replace or supplement the PROFS system used during the Reagan Administration. The Defendants do not contest that all of these systems are subject to the same record keeping requirements. This amendment is appropriate as the Defendants have altered their electronic communications systems and their record keeping procedures during the course of this litigation. *fn3" The amended complaint does not add a new cause of action or legal theory, see Mir v. Fosburg, 646 F.2d 342 (9th Cir. 1980) or represent surprise to the Defendants as this information was the subject of the Plaintiffs' discovery. see Foltz v. U.S. News & World Report, Inc., 108 F.R.D. 57, 58 (D.D.C. 1985); WIXT Telephone, Inc. v. Meredith Corp., 506 F. Supp. 1003 (N.D.N.Y. 1980). Finally, as information on these other systems has already been the subject of discovery, there will be no undue delay in this case resulting from amendment to the complaint. *fn4" See Foltz, 108 F.R.D. 57 at 58 .

 Similarly, the Court finds that the Plaintiffs' proposed amended FOIA claim is within the jurisdiction of the Court. The Defendants do not contest that the Plaintiffs have requested from the proper parties all the information included in its proposed amended FOIA count. Rather, the Defendants contend this request is contrary to a February 1992 agreement that the only pending FOIA claim in this case was the PROFS records of the Reagan Administration. However, the Court finds that any prior agreement regarding the scope of a lawsuit does not prevent a party from seeking amendment under Rule 15 of the Federal Rules of Civil Procedure.

 Defendants also contend that the Plaintiffs have not exhausted their administrative remedies under FOIA. But it is well established that administrative exhaustion is not required where it would be "futile because of certainty of an adverse decision." see James v. U.S. Dept. Of Health and Human Serv., 263 U.S. App. D.C. 152, 824 F.2d 1132, 1138 (D.C. Cir. 1987) citing Randolph-Shepard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 105-107 (D.C. Cir. 1986). Given that the Defendants continue to maintain their position that these electronic materials are not records within the FRA and FOIA and claim that the Plaintiffs are not entitled to them in any event and because they have not given the Plaintiffs any of the information sought in this suit, the Court believes administrative exhaustion would be futile.

 Third, the Defendants contend that the Plaintiffs' more recent FOIA claims should not be given priority before other FOIA requests filed earlier in time and thus should not be included in this suit. See Open America, 178 U.S. App. D.C. 308, 547 F.2d 605 (D.C. Cir. 1976). However, the court in Open America explained that certain FOIA claims could be given priority if "some exceptional need or urgency attached to the request justified putting it ahead of all other requests received by the same agency prior thereto." Id. at 615. Given the pendency of this lawsuit and the fear that these electronic records will be lost before the end of the Bush Administration, the Court finds that exceptional circumstances have been shown. It will also maintain public confidence in the integrity of our system of government and how it functions if valuable records are not allowed to be destroyed without right which a decision on the merits herein will ultimately resolve.

 Finally, allowing an amended complaint here will enable the Court to award the most complete relief in one action and avoid waste, delay and cost of a separate action. *fn5" See New Amsterdam Casualty Co. v. Waller, 323 F.2d 20 (4th ...

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