The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiffs initiated this action on January 14, 2002, seeking
release of agency records under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, related to government use of privately
owned databases containing personal information. Currently before
the Court is Defendants' motion for a stay of proceedings in the
above-captioned action until August 31, 2005 pursuant to the
doctrine announced in Open America v. Watergate Special
Procecution Force, 547 F.2d 605 (D.C. Cir. 1976). According to
Defendants, although the Federal Bureau of Investigation ("FBI")
is exercising due diligence in responding to the Plaintiff's FOIA
request, exceptional circumstances have prevented it from
completely processing Plaintiff's request which covers around
5,000 pages of documents relating to a classified contract
between the Government and ChoicePoint, Inc., a private company
that sells personal information within the statutory time
limit. Plaintiff opposes Defendants' motion. Upon a review of the
parties' filings, the attached exhibits, the lengthy affidavit
submitted by Mr. Keith R. Gehle, Assistant Section Chief of the
FBI's Record/Information Dissemination Section, the relevant case
law, and the entire record herein, the Court shall grant Defendants'
Motion for an Open America Stay.
By a letter dated June 22, 2001, Plaintiff submitted a FOIA
request to the FBI, seeking "all records relating to
transactions, communications, and contracts concerning businesses
that sell individuals' personal information." Compl., Ex. A
(6/22/01 FOIA request). By a letter dated July 7, 2001, FBI
Headquarters closed Plaintiff's request upon a finding that its
parameters were too vague. See Defs.' Mot. to Stay, Ex. A
(9/23/04 Decl. of Keith Gehle) ("Gehle Decl.") at ¶ 22. Following
a clarification letter from Plaintiff dated August 8, 2001, FBI
Headquarters subsequently acknowledged Plaintiff's request as
seeking access to information concerning only ChoicePoint, Inc.,
a private company that sells personal information. Id.
Following Defendants' lack of responsiveness, Plaintiffs filed
this action on January 14, 2002.
As a result, what is now the FBI's Record/Information
Dissemination Section began its search for documents responsive
to Plaintiff's FOIA request on February 15, 2002. Id. The
search revealed two large categories of potentially responsive
documents: (1) documents related to a public contract that the
FBI has with ChoicePoint to provide FBI employees access to
information about individuals and companies as well as archived
news databases; and (2) approximately 5,000 pages of documents
related to a classified contract between the FBI and ChoicePoint.
Once these documents were identified, it became apparent that the
total volume of potentially responsive records would be quite
large. Id. ¶ 23. As such, after failed negotiations to narrow
the scope of Plaintiff's FOIA request, the FBI proceeded on
parallel tracks with regard to the two categories of documents.
Id. As for the documents related to the public ChoicePoint
contract, the FBI sought and obtained a stay of proceedings until
January 31, 2003, and later through April 30, 2003, to complete its review, processing, and
release of that material. Id.
With respect to the second category of documents, i.e., the
classified ChoicePoint contract, Defendants notified Plaintiff of
the existence of this material in a letter dated May 28, 2003,
and informed Plaintiff that processing of the material would take
in excess of eighteen (18) months. See 12/30/03 Pub. Decl. of
J. Stephen Tidwell (then-Deputy Assistant Director of the FBI's
Criminal Investigative Division) ¶ 16. On October 1, 2003, after
Plaintiff declined Defendants' invitation to exclude the material
from its FOIA request, Defendants informed Plaintiff again that
it would take the FBI approximately twenty-four (24) months to
process the 5,000 pages. Id. ¶ 18. On December 31, 2003,
Defendants sought to exclude these 5,000 pages of material from
the FOIA request, or alternatively to be granted an eighteen (18)
month stay to process (b)(1) exemptions first, or a twenty-four
(24) month stay to process the documents under all exceptions.
See Defs.' Mot. to Exclude Classified Docs. From Pl.'s FOIA
Request or, in the Alternative, to Brief FOIA Exemption (B)(1)
Issues First or, in the Alternative, for an Extension of Time.
In a Memorandum Opinion and Order dated August 23, 2004, this
Court denied Defendants' motion to exclude the 5,000 pages of
documents relating to the classified ChoicePoint contract from
processing, but invited Defendants to move for a stay pursuant to
the doctrine set forth in Open America. See Elec. Privacy Info.
Ctr. v. U.S. Dep't of Justice, Civ. No. 02-0063 (CK), at 13
(D.D.C. Aug. 23, 2004) (memorandum opinion denying Defendants'
motion to exclude documents) ("Defendant is invited to move for a
stay that meets the Open America standard."). Taking the
Court's invitation, Defendants filed the present Motion for an
Open America Stay on September 23, 2004, claiming that
exceptional circumstances exist to justify the delay in production of the 5,000 pages of documents responsive to
Plaintiff's FOIA request.
In Defendants' filing, they note that the classification review
of the 5,000 pages is presently ongoing at the FBI's
Record/Information Dissemination Section Classification Unit
("CU"). Defs.' Mot. to Stay, Ex. A ("Gehle Decl.") ¶ 24. These
documents are being reviewed first for the applicability of
Exemption (b)(1), and are being prepared for review by the
Department of Justice's Department Review Committee ("DRC").
Id. A total of nine (9) FOIA paralegals in CU are performing
the classification review, and at the time of Defendants'
filing 3,535 pages were reviewed already for initial
classification. Id. ¶ 25. The DRC will then review all
classification determinations in the documents at issue and
concur or disagree with the CU's classification actions. Id. ¶
24. The CU will then apply the DRC's classification decisions to
the documents, make the appropriate changes, and stamp the face
of each document to indicate the date that the DRC review
occurred. Id. After the CU and DRC complete their (b)(1) work
on the documents, the collected material will be forwarded to the
Disclosure Unit for a page-by-page, line-by-line review of the
information to determine if any exemptions in addition to
Exemption (b)(1) should be applied. Id. Although it was planned
that the case was to be assigned to one (1) FOIA paralegal in the
Disclosure Unit for processing, additional paralegals were to be
made available for the assignment. Id. ¶ 25. The FBI avers that
it is committed to completing the review as expeditiously as
possible while balancing the competing demands of other pending
requests both in the litigation and administrative queues. Id. II: LEGAL STANDARDS
Under FOIA, an agency is required to determine within twenty
(20) days of the receipt of a request for records "whether to
comply with such request[,]" and "to immediately notify the
person making such request of such determination and the reasons
thereof." 5 U.S.C. § (a)(6)(A)(i). However, this time limit can
be extended by ten (10) working days if the agency determines
that "unusual circumstances" exist. 5 U.S.C. § 552(a)(6)(B).
Nevertheless, FOIA explicitly contemplates the possibility of a
stay of judicial proceedings at the district court level. Under
Section 552 (a)(6)(C)(i) of FOIA, the Government may obtain a
stay of proceedings "[i]f the Government can show exceptional
circumstances exist and that the agency is exercising due
diligence in responding to the request."
5 U.S.C. § 552(a)(6)(C)(i). Moreover, in Open America, the D.C. Circuit
addressed Section 552(a)(6)(C)(i) and found that an agency is
entitled to additional time under FOIA's "exceptional
circumstances" provision when the 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.
547 F.2d at 616 (quoting 5 U.S.C. § 552 (a)(6)(C)). Effective
October 2, 1997, as part of the Electronic Freedom of Information
Amendments of 1996, Congress added the following two subsections
to Section 552(a)(6)(C):
(ii) For purposes of this subparagraph, the term
"exceptional circumstances" does not include a delay
that results from a predictable agency workload of
requests under this section, unless the agency
demonstrates reasonable progress in reducing its
backlog of pending requests. (iii) Refusal by a person to reasonably modify the
scope of a request or arrange an alternative time
frame for processing a request (or a modified
request) under clause (ii) after being given an
opportunity to do so by the agency to whom the person
made the request shall be considered as a factor in
determining whether exceptional circumstances exist
for purposes of this subparagraph.
5 U.S.C. § 552 (a)(6)(C)(ii), (iii). The legislative history of
the 1996 amendments reveals that Congress, having considered the
decision in Open America, intended the amendments to be
"consistent with the holding in Open America," and sought only
to "clarify that routine, predictable agency backlogs for FOIA
requests do not constitute exceptional circumstances." H.R. Rep.
104-795 at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 3448,
3467. However, the amendments clearly contemplate that other
circumstances, such as an agency's efforts to reduce the number
of pending requests, the amount of classified material, the size
and complexity of other requests processed by the agency, the
resources being devoted to the declassification of classified
material of public interest, and the number of requests for
records by courts or administrative tribunals, are relevant to
the courts' determination as to whether exceptional circumstances
exist. Id.; see also EFOIA Report, at *23, H.R. Rep. No.
106-50, 106th Cong., 1st Sess., 1999 WL 132731, at *13 (Mar. 11,
Following the decision in Open America, courts in the D.C.
Circuit "have interpreted [Section (a)(6)(C)] as excusing any
delays encountered in responding to a request as long as the
agencies are making a good faith effort and exercising due
diligence in processing the requests on a first-in first-out
basis." Kuffel v. U.S. Bureau of Prisons, 882 F. Supp. 1116,
1127 (D.D.C. 1995) (citations omitted); see also Edmond v. U.S.
Attorney, 959 F. Supp. 1, 3 (D.D.C. 1997) ("Courts have
uniformly granted the government reasonable periods of time in
which to review FOIA requests when there is a backlog.");
Ferguson v. Fed. Bureau of Investigation, 722 F. Supp. 1137, 1140 (S.D.N.Y. 1989) ("In the D.C. Circuit, courts
generally have granted extensions when presented with evidence of
an overburdened agency following necessary procedures.")
Under D.C. Circuit law, a stay pursuant to this subsection and
the Open America doctrine may be granted "(1) when an agency is
burdened with an unanticipated number of FOIA requests; and (2)
when agency resources are inadequate to process the requests
within the time limits set forth in the statute; and (3) when
the agency shows that it is exercising `due diligence' in
processing the requests; and (4) the agency shows `reasonable
progress' in reducing its backlog of requests." Williams v. Fed.
Bureau of Investigation, Civ. A. No. 99-3378 (AK), 2000 U.S.
Dist. LEXIS 17493, at *4 (D.D.C. Nov. 30, 2000) (emphasis in
original); see also Summers v. Dep't of Justice, 925 F.2d 450,
452 n. 2 (D.C. Cir. 1991) (noting first three factors). Agency
affidavits provide a critical insight into this process, and are
often determinative. See Safecard Servs., Inc. v. Secs. & Exch.
Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and
internal quotation marks omitted) ("Agency affidavits are
accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability
of other documents."); Aguilera v. Fed. Bureau of
Investigation, 941 F. Supp. 144, 149 (D.D.C. 1996) (citing
agency affidavits in addressing stay criteria).
Upon a searching examination of parties' filings, the attached
exhibits, Mr. Gehle's Affidavit, and the relevant case law, the
Court concludes that Defendants have met the standards necessary
to obtain an Open America stay. The Court finds that Defendants
have established both that exceptional circumstances exist and
that the FBI has been proceeding with its response to Plaintiff's FOIA request with due diligence. Accordingly, the
Court shall grant Defendants' ...