The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM
On May 2, 1991 plaintiff made a FOIA request to the New York field office of the Federal Bureau of Investigation for records pertaining to the "October Surprise." On May 20, 1991 the New York office acknowledged that it had received plaintiff's request on May 7. (5/11/92 Turner Decl., Ex. A.) Plaintiff's request was transferred to FBI Headquarters ("FBIHQ") in accordance with defendant's policy of referring to FBIHQ requests made directly to field offices. However, plaintiff's request was not assigned a processing number until August 23, 1991. This delay occurred because the clerk who responded to plaintiff's request mistakenly told plaintiff that she needed to provide proof of Cyrus Hashemi's death. Defendant previously had processed documents relating to Hashemi, and therefore knew that he was dead.
To ensure the most efficient and consistent processing, plaintiff's request was assigned to a paralegal who was already processing records related to the "October Surprise." (12/21/92 Turner Decl. P 8.) On September 13, 1991 plaintiff was informed that her request had been transferred to FBIHQ and that it would take approximately one year for the entire file to be processed. (5/11/92 Turner Decl. P 16(F).) Although plaintiff had requested the field office file on Hashemi, she was advised that the processing of a FOIA request for the Hashemi file located at FBIHQ was near completion, and that if plaintiff requested that file, it would be sent to her within a short period of time. On November 25, 1991, defendant released to plaintiff 1,296 pages from the FBIHQ file on Hashemi. (Id. at P 16(I).) As of May 11, 1992, defendant estimated that the remainder of plaintiff's request, materials located at the New York field office which had not been sent to FBIHQ, would be processed by October 1, 1993. (Id at P 19.)
FOIA requires that an agency determine within 10 days whether to comply with a request and immediately notify the requester of that determination. 5 U.S.C. § 552(a)(6)(A). Once an agency has determined that it will comply with a request for records, the agency must make them "promptly available" to the requester. 5 U.S.C. § 552(a)(6)(C).
Defendant argues that it is entitled to a stay because it faces an extraordinary number of FOIA requests to which it responds with due diligence, and that plaintiff has not demonstrated an exceptional need for the information requested that would justify expediting her request.
5 U.S.C. § 552(a)(6)(C) provides:
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.
In interpreting the extraordinary circumstances-due diligence provision, the D.C. Circuit has held that an extension is warranted where:
an 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. . . Due diligence of the agency to comply with all lawful demands under the Freedom of Information Act in as short a time as is possible by assigning all requests on a first-in, first-out basis, except those where exceptional need or urgency is shown, is compliance with the Act.
Open America v. Watergate Special Prosecution Force, 178 U.S. App. D.C. 308, 547 F.2d 605, 616 (D.C.Cir. 1976). Cf. Exner v. FBI, 542 F.2d 1121 (9th Cir. 1976).
Some district courts have applied more stringent standards for granting extensions than those set in Open America. See Mayock v. INS, 714 F. Supp. 1558, 1565-66 (N.D.Cal. 1989), rev'd, 938 F.2d 1006 (9th Cir. 1991) (summary judgment improper because district court failed to consider government's evidence in its entirety); Ettlinger v. F.B.I., 596 F. Supp. 867 (D.Mass. 1984); Hamlin v. Kelley, 433 F. Supp. 180 (N.D.Ill. 1977). However, agencies confronting an overwhelming number of requests ...