Open America Stays

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The government sometimes seeks a stay of litigation proceedings via the "exceptional circumstances" provision.[1] These are often called "Open America stays," after a seminal decision from the D.C. Circuit in 1976.[2]

Text of the "exceptional circumstances" provision

See also Text of the FOIA

5 U.S.C. § 552(a)(6)(C):

(i) [....] 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. [....]

(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.

Legislative history of the "exceptional circumstances" provision

[under construction]

Open America v. Watergate Special Prosecution Force (D.C. Cir. 1976)

In 1976, the D.C. Circuit issued its seminal Open America decision. At the time, the statute did not define "exceptional circumstances." Congress later added definitional criteria in the E-FOIA Amendments of 1996.[3]

In Open America, the D.C. Circuit majority found:

In summary, we interpret Section 552(a)(6)(C) to mean that “ exceptional circumstances exist” when 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. . . . Under the circumstances defined above the time limits prescribed by Congress in subsection (6)(A) become not mandatory but directory. The good faith effort and 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.[4]

Importantly, Judge Leventhal issued an authoritative separate opinion which concurred in the result but rejected certain “dictum accepting the broad premise for relief” sought by the government.[4] According to Judge Leventhal, the majority ignored that FOIA’s “safety valve provisions” were “carefully crafted to put a substantial burden on the government to justify to the courts any noncompliance with FOIA time limits.”[4] “What the majority dictum would contemplate, however, is a scheme that turns the burden of proof mandated by Congress upside down. No longer must the Government make out a case of exceptional circumstances; instead the plaintiff will be required to show a ‘genuine need and reason for urgency.’”[5]

As courts pointed out, when Congress amended the provision in 1996, it explicitly indicated in legislative history that the revisions were not meant to overrule Open America itself.[6] Instead, Congress added definitional criteria for what qualifies as "exceptional circumstances" to rein in the broader dicta in the Open America decision to which Judge Leventhal objected.[7]


  1. 5 U.S.C. § 552(a)(6)(C)(iii).
  2. Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).
  3. Public Law 104–231, see
  4. 4.0 4.1 4.2 Open America, 547 F.2d at 616.
  5. Open America, 547 F.2d at 617.
  6. See, e.g., Democracy Forward Found. v. Dep’t of Just., 354 F. Supp. 3d 55, 59 (D.D.C. 2018) (“According to legislative history of the Act, Congress intended for this amendment to be ‘consistent with the holding in Open America,’ and only ‘clarif[ied] that routine, predictable agency backlogs for FOIA requests do not constitute exceptional circumstances.’” (quoting H.R. Rep. 104–795 at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3467)). Accord Daily Caller News Found. v. Fed. Bureau of Investigation, 387 F. Supp. 3d 112, 116 (D.D.C. 2019).
  7. See S. REP. 104-272, 28-29.