agents, supervisors, and one local law enforcement officer. The release of these individuals' identities could result in physical attacks, threats, or harassment. It is in the public interest not to disclose the identity of special agents so that they may continue to effectively pursue their undercover and investigative assignments. Because disclosure of the identities of investigative personnel would have a detrimental effect on DEA operations and could endanger the lives of its agents, the DEA correctly applied Exemption 7(F).
III. Plaintiff's Claim Against the FBI
The final issue for the Court to resolve is whether "exceptional circumstances" justify the FBI's motion to stay the proceedings until March 2000 in order to allow it sufficient time to process plaintiff's FOIA request. In support of its request for a stay, the FBI alleges that its resources are extremely limited and that it is seriously strained by the number of FOIA requests it receives each year. (Stewart Decl. PP 33 - 36.) It estimates that there are 700 pages of records responsive to plaintiff's request. Id. at P 23. Due to the magnitude of the processing task, and the existing backlog of previously filed FOIA requests, the FBI has instituted a two track system.
Plaintiffs request was classified as track two due to the large number of responsive documents. Currently, there are 3,080 requests ahead of plaintiff's request. (Steward Decl. P 24.)
Under the FOIA, agencies must respond to a request for information within ten working days. 5 U.S.C § 552(a)(6)(A)(i). However, "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." 5 U.S.C. § 552(a)(6)(C): see Open Am. v. Watergate Special Prosecution Force, 178 U.S. App. D.C. 308, 547 F.2d 605, 616 (D.C. Cir. 1976) (permitting a stay when agency has limited resources, is faced with requests vastly in excess of that anticipated by Congress, and is exercising due diligence.); see, e.g., Fox v. United States Dep't of Justice, No. 94-4622, slip op. at 6-9, 12 (C.D. Cal. Dec. 14, 1994) (granting six-year stay where FBI had a backlog of 11,828 requests and Congress refused to expand the small staff of FOIA processors). Courts have interpreted this provision to excuse any delays in responding to a request "as long as the agency is making a good faith effort and exercising due diligence in processing the requests on a first-in first-out basis." Kuffel, 882 F. Supp. at 1127.
Because of the large backlog of FOIA requests, the FBI has instituted a two track system and a first-in, first-out processing of requests. In view of this two track system and the large volume of documents expected to be responsive to plaintiff's request, this Court finds that the FBI has met the due diligence requirement for a stay. See Lisee v. C.I.A., 741 F. Supp. 988, 989 (D.D.C. 1990) (holding FBI's and NSC's processing of requests on a first-in, first-out basis met the "exceptional circumstance" and "due diligence" requirements of the FOIA); But see Hamlin v. Kelley, 433 F. Supp. 180 (D.C. Ill. 1977) (finding that a showing of "an inadequate staff, insufficient funding, or great number of requests" did not amount to "exceptional circumstances" to justify a stay under the FOIA).
However, a stay is not appropriate where the request is necessary and urgent. Open Am., 547 F.2d at 616 (emphasis added); Nation Magazine v. Dep't of State, 805 F. Supp. 68, 73 (D.D.C. 1992). Plaintiff claims that the withheld records contain information which shows a violation of his due process rights. Plaintiff argues that, due to the constitutional nature of his claim, his request falls under the "urgent need" exception, requiring that the FBI process his request first.
The plaintiff bears the burden of "showing a genuine need and reason for urgency in gaining access to Government records ahead of prior applicants for information.'" Lisee, 741 F. Supp. at 989, (quoting Open Am., 547 F.2d at 615-616 (rejecting "urgent need" argument where plaintiff needed the information to meet publishing and production deadlines)). In Open Am., the Court of Appeals warned against permitting parties to merely claim that they have an "urgent need." Open Am., 547 F.2d at 615. Plaintiff in this matter has merely asserted his need for the requested documents, but has not elaborated on his claim that he has a due process interest in the documents.
Without further support, this Court cannot find that plaintiff has an "urgent need." Without a showing of "urgent need," plaintiff must wait his turn in having the requested documents processed and disclosed. Accordingly, this Court will dismiss without prejudice the action against the FBI. However, pursuant to 5 U.S.C. § 552 (a)(6)(c), this Court will retain jurisdiction while allowing the FBI additional time to complete its review. If the FBI has not responded to plaintiff's request by March 2000, or if some of defendant's backlog subsides, plaintiff may reinstate this action by filing notice with this Court by May 1, 2000.
As is evident in the discussion above, the USPS, ATF, and the Criminal Division conducted reasonable searches to uncover the requested documents. The DEA, BOP, USMS, and EOUSA have properly invoked exemptions to the FOIA with regard to all the contested documents. The FBI has demonstrated "exceptional circumstances" justifying a stay. An appropriate Order accompanies this Memorandum Opinion.
UNITED STATES DISTRICT COURT