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EDMOND v. UNITED STATES ATTY.

February 27, 1997

RAYFUL EDMOND, JR., Plaintiff,
v.
UNITED STATES ATTORNEY, et al., Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Defendants' Motion for Stay of Proceedings and Plaintiff's Motion for Vaughn Index *fn1" and Rule 11 Sanctions. Plaintiff, a prisoner proceeding pro se in this matter, seeks all records from the Defendants which "pertain to [him], mention [his] name or refer to [him]" under the Freedom of Information Act, 5 U.S.C. § 552 (the "FOIA") and the Privacy Act, 5 U.S.C. § 552(a) (the "PA"). Edmond Letter of Dec. 6, 1995. The Court has considered the motions and the opposition thereto.

 BACKGROUND

 On August 14, 1992, the Plaintiff filed a request for information with the office of the United States Attorney (the "USAO"). Plaintiff requested all documents pertaining to him from the following agencies: the Drug Enforcement Administration, the Federal Bureau of Investigation, the United States Attorney and the United States Bureau of Prisons. On August 19, 1992, the USAO notified Plaintiff that his FOIA request was "being handled in chronological order based on the date of receipt." Plt. Letter of August 19, 1992, Defendant's Exhibit B.

 Plaintiff wrote to the USAO on December 27, 1994, December 6, 1995 and June 19, 1996, seeking information on the status of his request. On each such occasion, the USAO advised Plaintiff in writing that his request would be handled equitably, but that no date could be given as to when the processing of his request would be complete. Plaintiff filed his complaint in this case on October 15, 1996.

 The USAO estimates that the records responsive to Plaintiff's request consist of an estimated 2,000 pages and that there are presently 31 requests ahead of Plaintiff's request. (Butler Decl. P 13.) Due to the magnitude of the processing task, and the existing backlog of previously filed proceedings, the USAO has also instituted a two-tiered system in which requests less voluminous than that of Plaintiff are queued for processing separately from older requests containing greater quantities of information.

 Based on the present backlog, the Government states that Plaintiff's request should be reached for processing by January 1999. (Butler Decl. P 14.) The agency claims that "exceptional circumstances" warrant an extension of time until January 31, 1999 and requests a stay of proceedings until that date.

 ANALYSIS AND DECISION

 I. Defendant's Motion for Stay of Proceedings

 Under the FOIA, agencies must respond to a request for information within ten (10) 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) (emphasis added).

 The D.C. Circuit has interpreted "exceptional circumstances" to permit a stay of proceedings when the agency has limited resources, is "deluged with a volume of requests for information vastly in excess of that anticipated by Congress," and is exercising "due diligence" in processing the requests. Open America v. Watergate Special Prosecution Force, 178 U.S. App. D.C. 308, 547 F.2d 605, 614-16 (D.C. Cir. 1976) (citing 5 U.S.C. § 552(a)(6)(C)); see also, Kuffel v. United States Bureau of Prisons, 882 F. Supp. 1116, 1127 (D.C. Cir. 1995) (delay in processing is acceptable if agency is making a good faith effort and exercising due diligence). The process of handling FOIA requests on a "first-in, first-out" basis, which has been employed by the District of Columbia agencies, has been adopted by the D.C. Circuit as sufficient showing of due diligence. Id.

 However, a stay is not appropriate where the request is necessary and urgent. See Open Am., 547 F.2d at 616 (emphasis added); Ohaegbu v. FBI, 936 F. Supp. 7, 8 (D.D.C. 1996); The Nation Magazine v. Department of State, 805 F. Supp. 68, 73 (D.D.C. 1992). 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 v. CIA, 741 F. Supp. 988, 989 (D.D.C. 1990)(quoting Open Am., 547 F.2d at 615-16 (rejecting "urgent need" argument where plaintiff needed 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.

 In this case, Plaintiff does not argue that the "first-in, first-out" procedure is unfair, but that the inability to process FOIA requests more quickly constitutes a per se failure to meet the due diligence requirement. *fn2" There is no basis in law for such a claim. Courts have uniformly granted the government reasonable periods of time in which to review FOIA requests when there is a backlog. 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); Ferrentino v. Department of Justice, Civil No. 86-0784, slip op. at 1, (D.D.C. Aug. 1, 1986) (stay of two years granted); Crooker v. United States Attorney, Civil No. 83-2100, slip op. at 1 (D.D.C. June 26, 1985) (stay of fourteen months granted).

 Plaintiff has also failed to establish an "exceptional need or urgency" on his part which would warrant prioritization of his request over others which were filed earlier. In order to demonstrate such urgency, Plaintiff must show potential jeopardy to his life or personal safety, or to substantial due process rights. See, e.g., Exner v. FBI, 443 F. Supp. 1349, 1353 ...


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