Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge:
Carl Oglesby is appealing from the dismissal by the district court of his suit against the Department of the Army ("Army"), the Department of State ("State"), the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the National Archives and Records Administration ("NARA"), and the National Security Agency ("NSA") (collectively "the agencies") seeking information under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The district court found that all six agency defendants had complied with the FOIA in responding to appellant's requests. Oglesby v. Department of the Army, Civ. Action No. 87-3349, Memorandum Opinion ("Mem. op.") at 15, reprinted in Joint Appendix ("J.A.") at 281. We do not reach the merits of appellant's claims against the Army, the CIA, the FBI, the NSA and NARA because we find that appellant failed to exhaust his administrative remedies with respect to each of these agencies. Accordingly, we vacate the district court's judgment to the extent that it reached the merits of appellant's claims against these five agencies, and remand with instructions to dismiss appellant's claims against those agencies based on appellant's failure to exhaust his administrative remedies. We find that appellant constructively exhausted his administrative remedies with respect
Appellant Carl Oglesby is an independent freelance writer, professional journalist, and lecturer. His FOIA requests result from an interest in the life of Reinhard Gehlen, a German General during World War II who served as chief of an international Nazi spy ring that operated throughout Eastern Europe and inside the Soviet Union. At the end of the war, Gehlen allegedly negotiated a secret agreement with the United States under which his organization was reconstituted as an espionage network operating in Europe under U.S. command until it could be restored to West Germany as its official foreign intelligence arm.
In 1985, appellant submitted FOIA requests to six agencies concerning General Gehlen. By letters dated August 21 and September 19, 1985, appellant requested, with minor variations, the following information from each of the six agencies:
See Letter to the CIA Information and Privacy Coordinator from Carl Oglesby (Aug. 21, 1985), reprinted in J.A. at 29 (identical letters were sent to the Army, State, and the NSA); Letter to James K. Hall from Carl Oglesby (Aug. 21, 1985), reprinted in J.A. at 54 (letter to the FBI); Letter to NARA from Carl Oglesby (Sept. 19, 1985), reprinted in J.A. at 72. Appellant also sought a waiver of search and copying fees from each agency pursuant to 5 U.S.C. § 552(a)(4)(A).
In response to appellant's requests, the agencies released a total of 384 pages of documents (many with redactions) but refused to disclose other responsive documents, claiming exemptions under 5 U.S.C. § 552(b)(1), (3), and (7). In addition, the Army, the CIA, NARA, and the NSA
Appellant challenged the denial of his FOIA requests in the district court on the grounds that the agencies performed inadequate searches, the FOIA exemptions claimed by the agencies were not properly supported, and the agencies improperly denied his fee waiver requests. Appellant did not administratively appeal the denial of his requests to the heads of any of the agencies before filing suit in district court. Despite appellant's failure to exhaust administrative remedies, the district court reached the merits of his claims and granted summary judgment for the agencies on all issues. On appeal, the government again raises failure to exhaust as a challenge to his suit, and Oglesby in turn claims that he constructively exhausted his administrative remedies under 5 U.S.C. § 552(a)(6)(C).
The initial question before us is whether appellant must actually exhaust his administrative remedies before seeking judicial review. Briefly summarized, we find that 5 U.S.C. § 552(a)(6)(C) permits a requester to file a lawsuit when ten days have passed without a reply from the agency indicating that it is responding to his request, but that this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies. Thus, if the agency responds to a FOIA request before the requester files suit, the ten-day constructive exhaustion provision in 5 U.S.C. § 552(a)(6)(C) no longer applies; actual exhaustion of administrative remedies is required. In this case, we find that appellant Oglesby failed to exhaust his administrative remedies with respect to five of the six agencies.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER FOIA
Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision. See McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969). The exhaustion requirement also allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review. See id. However, absent a statutory provision to the contrary, failure to exhaust is by no means an automatic bar to judicial review; courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing. See id. at 193; National Labor Relations Board v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426, 88 S.Ct. 1717, 1722-23, 20 L.Ed.2d 706 (1968).
The statutory scheme in the FOIA specifically provides for an administrative appeal process following an agency's denial of a FOIA request. After receiving a FOIA request an agency is required to:
5 U.S.C. § 552(a)(6)(A)(i), (ii). Courts have consistently confirmed that the FOIA requires exhaustion of this appeal process before an individual may seek relief in the
Appellant does not argue that exhaustion of remedies is not required. Rather, he contends that he exhausted his administrative remedies constructively, under 5 U.S.C. § 552(a)(6)(C). That section provides:
5 U.S.C. § 552(a)(6)(C). The relevant deadlines for agency responses to FOIA requests and appeals are set out in 5 U.S.C. § 552(a)(6)(A): the agency must respond to a FOIA request within ten days of receipt of the request, and must respond to an appeal within twenty days of receipt of the appeal. However, the agency may grant itself one ten-day extension of time for either the initial response or the administrative appeal, upon notice to the requester.
If the agency has not responded within the statutory time limits, then, under 5 U.S.C. § 552(a)(6)(C), the requester may bring suit. At that time, the court may determine that the agency has been diligently working on a response to the request, but has been unable to meet the deadline because of exceptional circumstances, and may grant an extension of time to allow the agency to finish reviewing the request.
We did not deal in Spannaus with the issue presented here of whether, once an agency responds to a request belatedly but before suit is filed, actual exhaustion must still be pursued before going to court. In Spannaus, rather, we looked to the constructive exhaustion provision only to establish when the statute of limitations in a FOIA case begins to run.
In Dettmann, the FOIA requester challenged in court a FOIA disclosure procedure that she had not previously challenged in her administrative appeal. We held that because she had not exhausted her administrative remedies with respect to that challenge she could not raise it in district court.
Spannaus, 824 F.2d at 59.
We agree with this interpretation of the exhaustion provision, i.e., that an administrative appeal is mandatory if the agency cures its failure to respond within the statutory period by responding to the FOIA request before suit is filed. The ten-day
Section 552(a)(6)(A) provides for an administrative appeal where an agency's determination is adverse; judicial review of that determination is available after the agency determination has been upheld in the administrative appeal. This section states that the agency shall "immediately notify the person ... of the right ... to appeal to the head of the administrative agency any adverse determination." 5 U.S.C. § 552(a)(6)(A)(i) (emphasis added). It does not suggest that a FOIA requester has the immediate right to appeal to the court without first appealing to the head of the agency. Rather, the next paragraph provides for judicial review after the administrative appeal has taken place: "if on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person ... of the provision for judicial review of that determination." 5 U.S.C. § 552(a)(6)(A)(ii).
The purpose of the ten-day limit for an agency response is to allow a FOIA requester, who has not yet received a response from the agency, to seek a court order compelling the release of the requested documents. The court may then order the agency to respond to the request. See Cleaver v. Kelley, 427 F.Supp. 80, 82 (D.D.C.1976) (ordering the agency to refrain from refusing to process the plaintiff's request and to produce the requested documents or provide sufficient justification for withholding the documents). Or, the court may review the request itself under the de novo review provision.
We believe that where a requester has chosen to wait past the ten-day period until the agency has responded, Congress intended that the administrative route be pursued to its end.
Allowing a FOIA requester to proceed immediately to court to challenge an agency's initial response would cut off the agency's power to correct or rethink initial misjudgments or errors. The extra several weeks consumed in processing an administrative
In this case, only one of the six agencies met the initial statutory deadline, but all six completed their review and made their initial determinations on appellant's requests long before appellant brought suit and within weeks or months of his requests. In such circumstances, we believe that the FOIA allows the agencies to have the benefit of the full administrative process before suit is filed. Congress intended that individuals receive information from the government promptly, but it also provided a statutory administrative appeal process, allowing the agency to complete its disclosure process before courts step in. We therefore interpret 5 U.S.C. §§ 552(a)(6)(A) and (C) as requiring the completion of the administrative appeal process before courts become involved, if the agency has responded to the request before suit is filed.
A response is sufficient for purposes of requiring an administrative appeal if it includes: the agency's determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. 5 U.S.C. § 552(a)(6)(A)(i); see Shermco Industries v. Secretary of the United States Air Force, 452 F.Supp. 306 (N.D.Tex.1978), rev'd on other grounds, 613 F.2d 1314 (5th Cir.1980). Assuming an agency's initial response complies with these requirements, the FOIA requester must appeal to the head of the agency.
Although in future cases foregoing an administrative appeal will preclude the requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies, see Spannaus, 824 F.2d at 59 (statutory right to sue might be entirely cut off if the requester never administratively appeals the denial), we think that result cannot be applied here. We acknowledge that the precise requirements of FOIA exhaustion have heretofore not been sufficiently certain that appellant should be penalized for not having discerned that an administrative appeal was mandatory; accordingly, we will allow the appellant in this case to pursue his appeals before the administrative agencies regardless of the expiration of the agencies' appeal deadlines. Where, as discussed below, appellant has not constructively exhausted his claims, he must appeal to the agencies within 60 days from the date of the district court's order on remand from this court.
Under the exhaustion requirements we have just discussed, we next determine whether the six agencies properly responded to appellant's requests so as to require that he pursue administrative appeals before initiating suit in the district court.
III. AGENCY RESPONSES TO APPELLANT'S FOIA REQUESTS
A. The Department of the Army
Appellant submitted a request to the Army on August 21, 1985; the Army responded by a letter dated March 31, 1986. The Army responded that it had identified records concerning Operation Rusty and Odessa that might be responsive to Oglesby's request, but that a fee commitment was necessary before the Army could proceed with the search. See Letter to Carl Oglesby from Thomas F. Conley (March 31, 1986), reprinted in J.A. at 31-32. The Army refused to waive fees because it was "not convinced" that there was a sufficient public interest to justify a waiver.
Once appellant made his commitment to pay the Army search and copy fees, by letter dated April 3, 1986, he fulfilled the requirements for a valid FOIA request. See Letter to Thomas F. Conley from Carl Oglesby (April 3, 1986), reprinted in J.A. at 33. Ten days after that date, appellant was free to sue the Army in district court to compel a response. However, he did not do so; instead, he waited to file suit until after the Army responded on May 20, 1986, with its determination to withhold most of the records on exemptions 1 and 7(D) grounds.
Appellant filed suit on December 11, 1987, challenging the Army's denial of his fee waiver request, the partial denial of his request for information, and the inadequacy of the search. Because, however, he did not take an administrative appeal on any of these claims, judicial review of such claims is precluded at this time.
B. The Department of State
Appellant submitted his request to State on August 21, 1985. State responded by letter dated September 9, 1985, agreeing to process his request. See Letter to Carl Oglesby from Peter M. Sheils (Sept. 9, 1985), reprinted in J.A. at 52. State then sent a second letter, before appellant filed suit, informing him that no records responsive to his request had been found. See Letter to Carl Oglesby from Josephine Jelenovic (Feb. 13, 1986), reprinted in J.A. at 53.
State's letter constituted an "adverse determination" under 5 U.S.C. § 552(a)(6)(A)(i) because appellant did not receive the documents he requested. Under the FOIA, the agency is required to "notify the [requester] ... of [the agency's] determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." 5 U.S.C. § 552(a)(6)(A)(i). A FOIA requester, dissatisfied with the agency's response that no records have been found, may wish to challenge the adequacy of the agency's search. The agency has a duty to notify appellant "of the right ... to appeal to the head of the agency," in cases where no records are found in its response as well as those in which specific records are denied. 5 U.S.C. § 552(a)(6)(A)(i).
State's letter to appellant, however, merely informed him that he could call the agency for further information: "If you have any questions, please contact the Information and Privacy Staff." This did not qualify as notice to appellant of his right to appeal the negative reference to his inquiry. Because, then, State did not provide notice of appellant's right to appeal, its response was insufficient under the FOIA to trigger the exhaustion requirement and appellant was free to file suit under 5 U.S.C. § 552(a)(6)(C). We therefore reach the merits of his claim.
Appellant challenges the reasonableness of State's search because the agency only searched the record system "most likely" to contain the requested information,
There is no requirement that an agency search every record system. See Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986) (search is not presumed unreasonable simply because it fails to produce all relevant material); Miller v. United States Department of State, 779 F.2d 1378, 1384-85 (8th Cir.1985) (same); Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982) (agency need not demonstrate that all responsive documents were found and that no other relevant documents could possibly exist); Marks v. United States Department of Justice, 578 F.2d 261, 263 (9th Cir.1978) (no requirement that an agency search every division or field office on its own initiative in response to a FOIA request when the agency believes responsive documents are likely to be located in one place). However, the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested. It is not clear from State's affidavit that the Central Records system is the only possible place that responsive records are likely to be located. At the very least, State was required to explain in its affidavit that no other record system was likely to produce responsive documents.
In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested. See Weisberg v. United States Department of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984); Weisberg v. United States Department of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983); see also Weisberg v. United States Department of Justice, 627 F.2d 365, 371 (D.C.Cir.1980) (agency affidavit must denote which files were searched and reflect a systematic approach to document location in order to enable the appellant to challenge the procedures utilized). State has not satisfied this burden. Its affidavit merely states that "[b]ased upon the information contained in Mr. Oglesby's letter, and consistent with customary practice and established procedure, a search was initiated of the Department record system most likely to contain the information which had been requested for the time period 1954-1956, namely, the Central Records." Declaration of Frank M. Machak, reprinted in J.A. at 138. The affidavit does not show, with reasonable detail, that the search method, namely searching the Central Records, was reasonably calculated to uncover all relevant documents. Nor does the affidavit identify the terms searched or explain how the search was conducted. Compare with Affidavit of Robert J. Walsh, Jr., Department of the Army, reprinted in J.A. at 263-65 (affidavit by the Army showing the topics searched and the type of search performed, for example a name only index and master name index, and what those indices contain). A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.
Because State's affidavit did not adequately describe the agency's search, summary judgment on the adequacy of the search was improper. Accordingly, we vacate the district court's order dismissing appellant's claim against State and remand to the district court. On remand, the district court may order State to submit a reasonably detailed affidavit upon which the reasonableness of its search can be judged.
C. The Federal Bureau of Investigation
Appellant sent his request to the FBI on August 21, 1985. The agency responded initially by letter dated September 6, 1985. See Letter to Carl Oglesby from
D. The Central Intelligence Agency
Appellant sent his request to the CIA on August 21, 1985. The CIA responded on September 3, 1985. See Letter to Carl Oglesby from John H. Wright (Sept. 3, 1985), reprinted in J.A. at 45. The September 3 letter indicated that the CIA would go forward with the search absent any problems or any need for additional information. Again, we need not determine if this response was adequate for constructive exhaustion purposes, because the CIA made its final determination on the merits of appellant's request before appellant filed suit. On September 10, 1985, the CIA released 20 pages of declassified material to appellant without charge and indicated that other records were being transferred to NARA and that appellant should contact NARA directly. See Letter to Carl Oglesby from John H. Wright (Sept. 10, 1985), reprinted in J.A. at 46-47. On October 3, 1985, the CIA informed appellant of its determination to withhold documents responsive to appellant's request, pursuant to exemption 3, 5 U.S.C. § 552(b)(3),
E. National Archives and Records Administration
Appellant sent his request to NARA on September 19, 1985. NARA's military headquarters and military field office responded separately to the request: the military headquarters responded on October 1, 1985, and the military field office responded on November 14, 1985. See Letter to Carl Oglesby from Wilbert Mahoney
The response from the military headquarters indicated that no records were found relating to meetings between General Gehlen and U.S. officials, or to Operation Rusty, and that records relating to Werewolf activities and the Odessa Movement would be furnished subject to fees for copying the documents. In addition, the headquarters indicated that records relating to Operation Sunrise were too numerous to search, but that these records would be made available in their entirety in the NARA research room for appellant to review for himself. Appellant contends that NARA did not fulfill its FOIA obligation when it merely provided records for appellant's review in its public reading room. We find that NARA's response was adequate under the FOIA.
NARA did not deny appellant any records; all relevant records were made available to him. In Tax Analysts v. United States Department of Justice, 845 F.2d 1060 (D.C.Cir.1988), affirmed, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989), we held that an agency "need not respond to a FOIA request for copies of documents where the agency itself has provided an alternative form of access," for example, making records available in a reading room. Tax Analysts, 845 F.2d at 1065, 1066-67; 109 S.Ct. at 2852; see also Grunfeld & Herrick v. United States Customs Service, 709 F.2d 41, 42 (11th Cir.1983) (holding that the Customs Service complied with FOIA by posting the requested information at the customshouse); Lead Industries Association, Inc. v. Occupational Safety & Health Administration, 610 F.2d 70, 86 (2d Cir.1979) (agency not required under FOIA to send requester copies of records that had appeared previously in a report published by the agency); Eason v. Nuclear Regulatory Commission, 1 G.D.S. ¶ 80,092 (D.D.C.1980) (a daily compilation of current newspaper and magazine articles on nuclear energy made available to the public in the Commission's Public Document Room was sufficient), cited with approval in Tax Analysts, 845 F.2d at 1065 n. 10. An agency is not required by the FOIA to mail copies of records, "nor even to provide a requester-convenient location for access." Tax Analysts, 845 F.2d at 1067; see also Nolen v. Rumsfeld, 535 F.2d 890, 892 (5th Cir.1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 555 (1977) (agency not required to mail copies of requested records or pay travel expenses to obtain the requested records). While the agency may not send the FOIA requester on a "scavenger hunt," Tax Analysts, 109 S.Ct. at 2852, in this case NARA has not done so; it has made all responsive records available in one central location for appellant's perusal. This satisfied the requirement under the FOIA to make records available to the public.
Appellant also challenges the adequacy of NARA's search and the denial of his fee waiver request; however, he did not pursue any of these challenges administratively. Until appellant exhausts his administrative remedies by appealing his challenges to the head of the agency, judicial review of any challenge is precluded.
NARA's military field office responded on November 14, 1985, releasing one index card of information, but withholding three other index cards pursuant to exemption 1, 5 U.S.C. § 552(b)(1). The November 14 letter properly informed appellant of his right to appeal and the process and deadline for doing so. Appellant did not appeal NARA's decision administratively, however. Therefore, appellant did not exhaust
F. The National Security Agency
Appellant sent his request to the NSA on August 21, 1985. The NSA responded on October 15, 1985, informing appellant that it would not conduct the search unless he paid one-half of the estimated search costs in advance and also agreed to pay the balance. See Letter to Carl Oglesby from Julia B. Wetzel (Oct. 15, 1985), reprinted in J.A. at 70-71. Appellant did not challenge the NSA's denial of his fee waiver request administratively, therefore he did not constructively exhaust his remedies and was not entitled initially to bring any challenge in district court. The district court nevertheless found that the issue of the fee waiver was the only issue before the court at that time, and that the issue was moot because the NSA subsequently agreed to waive the fees. See Oglesby, Mem. op. at 9; reprinted in J.A. at 275. However, because the appellant had failed to exhaust his administrative remedies with respect to each of his claims, none of his claims were properly before the court, including the challenge of the NSA's denial of appellant's fee waiver request.
Appellant's FOIA request became complete when the NSA granted his fee waiver request. If, as suggested by the briefs in this case, the NSA has already responded to appellant's FOIA request, then appellant must pursue his administrative remedies with respect to any adverse rulings before bringing suit.
We find that the ten-day constructive exhaustion provision of FOIA, 5 U.S.C. § 552(a)(6)(C), permits a requester to bring suit in federal district court only if he has not yet received a determination from the agency on his request. If he has received an adverse determination before bringing suit, he must pursue the matter through the agency appeal process, set out in 5 U.S.C. § 552(a)(6)(A)(ii). Once the head of the agency has made a determination on appeal or the twenty-day statutory deadline for the appeal decision has passed, he may bring suit in federal district court pursuant to 5 U.S.C. § 552(a)(4)(B).
In this case, appellant did not appeal any of his claims administratively. We hold that the Army, the CIA, the NSA, the FBI, and NARA properly responded to Oglesby's FOIA request before he filed suit. Therefore, judicial review of his claims against these five agencies was precluded. We therefore vacate the order of the district court with respect to the Army, the CIA, the NSA, the FBI, and NARA and remand with orders to dismiss appellant's claim against these agencies for failure to exhaust his administrative remedies and to grant to petitioner the right, if he chooses, to pursue administrative appeals from the initial agency denials within 60 days from the date of the district court's order on remand from this court. We also hold that State did not properly respond to Oglesby's request before he filed suit; therefore, appellant constructively exhausted his remedies with respect to State, and was not precluded from bringing his claim in district court. We find that State did not show, with reasonable detail, that its search was adequate; accordingly, we vacate the district court's dismissal of appellant's claim against State and remand to the district court to make further findings concerning the adequacy of State's search.
5 U.S.C. § 552(a)(4)(A)(iii) (1982 and Supp. IV 1986).
Alternatively appellant claims waiver of such fees based on § 552(a)(4)(A)(ii)(II):
5 U.S.C. § 552(a)(4)(A)(ii)(II) (1982 and Supp. IV 1986).
5 U.S.C. § 552(a)(4)(B).
In a letter dated April 3, 1986, appellant made a further showing, explaining the public interest nature of the information and the specific journals in which he had previously published and which could be future forums for his work. See Letter to Thomas F. Conley from Carl Oglesby (April 3, 1986), reprinted in J.A. at 33-34. Apparently, the Army found this supplementary showing to be unsatisfactory as well, because it charged appellant fees for search and copying. See Letter to Carl Oglesby from Robert J. Walsh, Jr. (May 22, 1986), reprinted in J.A. at 40-42. The NSA, in contrast, accepted the showing as adequate to justify waiver of fees. Mem. op. at 9; J.A. at 275. Because appellant did not exhaust his administrative remedies with respect to the Army's denial of his fee waiver request, we will not decide the merits of appellant's claim that his fee waiver was unreasonably denied. However, appellant's second showing was significantly more revealing than the first and, particularly in view of NSA's positive response to appellant's second showing, and the need for uniformity among the agencies in their application of FOIA, we invite the Army's reconsideration of its denial. See Larson, 843 F.2d at 1483 (a request for a waiver of fees must include a showing that there is a public interest in the subject matter and that the requester is able to disseminate the information to the public).