Al-Fayed v. Central Intelligence Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 17, 2001 Decided July 13, 2001

No. 00-5457

Mohamed Al-Fayed and Punch Limited,
Appellants

v.

Central Intelligence Agency, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv02092)

Mark S. Zaid argued the cause and filed the briefs for
appellants.

Gregg P. Leslie, Lucy A. Dalglish, David Sobel, Arthur B.
Spitzer and Kate Martin were on the brief for amici curiae
Reporters Committee for Freedom of the Press, et al., in
support of appellants.

 Thomas M. Bondy, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Wilma A. Lewis, U.S. Attorney at the time the brief was
filed, and Mark B. Stern, Attorney, U.S. Department of
Justice.

Before: Henderson, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: This case raises an issue of first
impression: the standard of judicial review applicable to
agency denials of expedited processing under the Freedom of
Information Act (FOIA), 5 U.S.C. s 552. We conclude that
district courts must review such denials de novo, rather than
defer to agency determinations. We further conclude that
the denials of expedition in this case survive de novo review
and, accordingly, we affirm the district court's refusal to
grant plaintiffs injunctive relief.

I

The plaintiffs in this case are Mohamed Al Fayed and
Punch Limited, a British magazine of political satire owned
and published by Al Fayed. They seek documents concern-
ing events associated with the death of Diana Spencer,
Princess of Wales, and of Al Fayed's son, Dodi Al Fayed.
Together with their driver, Henri Paul, the two died in an
automobile accident in Paris on August 31, 1997. The French
government investigated the accident and concluded that it
was caused by Paul's intoxication and excessive speed. First
Am. Compl. pp 14-15.

Plaintiffs allege that the National Security Agency (NSA)
may have secretly recorded Princess Diana's telephone con-
versations. Id. p 63. They also contend that following the
automobile accident, a former British intelligence officer pro-
vided French investigators with evidence that Paul had been
secretly employed by the British foreign intelligence service
("MI6"). Id. p 18. Plaintiffs further allege, "[u]pon informa-
tion and belief," that in 1998, at the behest of the British

government, the United States denied that former officer
entry into this country to tell his story. Id. p 20.

Plaintiffs next claim that, later in 1998, Al Fayed was the
victim of an attempted fraud by Oswald LeWinter, a man
claiming connections to the Central Intelligence Agency
(CIA), who tried to sell Al Fayed fabricated documents
indicating that MI6 was involved in the automobile crash.
After alerting the CIA and Federal Bureau of Investigation
(FBI), Al Fayed's representatives arranged to meet with
LeWinter in Vienna. When LeWinter arrived, he was arrest-
ed and incarcerated by Austrian authorities. Id. pp 24-42.
In a post-complaint affidavit, plaintiffs allege that the United
States Attorney's Office for the District of Columbia promised
to prosecute those involved in LeWinter's fraudulent scheme,
but failed to do so. Macnamara Aff. p 25. They further
contend that the CIA and FBI may have been involved in
efforts to prevent those prosecutions. Id.; First Am. Compl.
pp 51, 52.

In July and August 2000, plaintiffs filed FOIA requests
with ten federal agencies and agency components, seeking the
expedited release of documents relating to the above-
described events.1 Shortly thereafter, they filed a complaint
in the United States District Court for the District of Colum-
bia, charging that the agencies had wrongfully withheld the
requested records. See 5 U.S.C. s 552(a)(4)(B). Plaintiffs

__________
1 The ten were: the CIA, NSA, FBI, Department of State,
Department of Defense, Defense Intelligence Agency, Department
of Justice, Executive Office for United States Attorneys, Immigra-
tion and Naturalization Service, and United States Secret Service.
Plaintiffs' brief advises that since the filing of this appeal, one of the
agencies has been voluntarily dismissed from the case and five more
have completed processing plaintiffs' underlying document requests.
Reply Br. for Pls. at 1 n.1. The decisions of those six agencies,
therefore, are no longer subject to appeal. See 5 U.S.C.
s 552(a)(6)(E)(iv) ("A district court of the United States shall not
have jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a complete
response to the request."). The remaining appellees are the CIA,
NSA, FBI, and Department of State.

also filed a motion for a preliminary injunction directing the
agencies to expedite the processing of the FOIA requests.
See id. s 552(a)(6)(E). In September 2000, the district court
denied the request for preliminary injunctive relief, Al-Fayed
v. CIA, No. 00-cv-2092 (D.D.C. Sept. 20, 2000), and plaintiffs
returned to the agencies to supplement the administrative
record and to seek expedition through administrative appeals.
Two months later, after amending their complaint, plaintiffs
filed a second motion asking the court to issue a preliminary
injunction requiring expedited processing. The court again
denied the motion. Al-Fayed v. CIA, No. 00-cv-2092 (D.D.C.
Dec. 11, 2000) ("December Opinion").2

In its December 2000 opinion, the district court concluded
that none of the factors relevant to granting preliminary
relief pointed in plaintiffs' favor. Plaintiffs could not show
that: (1) they had a substantial likelihood of success on the
merits; (2) they would suffer irreparable injury if the injunc-
tion were not granted; (3) granting the injunction would not
injure other parties (for example, those requestors over whom
plaintiffs would take precedence if the injunction were is-
sued); or (4) the public interest would be furthered by the
injunction. Id. at 4, 13-16. The court focused primarily on
the first factor--plaintiffs' likelihood of success--and noted
that under FOIA, plaintiffs are entitled to expedited process-
ing of their requests only if they demonstrate a "compelling
need" for expedition. 5 U.S.C. s 552(a)(6)(E)(i)(I). As a

__________
2 Plaintiffs' motion was styled as a "Motion for a Temporary
Restraining Order and/or Preliminary Injunction, Or, in the Alter-
native, to Compel Expedited Processing." The district court treat-
ed the motion as one seeking a preliminary injunction, noting that
the same factors apply in evaluating requests for preliminary
injunctions and temporary restraining orders, see December Opin-
ion at 4 n.2, and that plaintiffs "offer no additional basis which
justifies an order compelling expedited processing," id. at 16.
Plaintiffs still have not articulated how an "order to compel" would
differ from their requested injunctive relief. In any event, because
the grant of any form of relief turns on whether plaintiffs can meet
the FOIA criteria for expedited processing, we will treat all three of
their requests as essentially equivalent.

threshold matter, the court determined that it should not
review de novo the agencies' findings concerning "compelling
need," but rather should apply "an 'abuse of discretion' or
'arbitrary and capricious' standard of review." December
Opinion at 6. Applying that standard, the district court
concluded that the agencies did not abuse their discretion in
determining that there was no "compelling need" for expedit-
ed processing. Id. at 13.3

II

Plaintiffs appeal the district court's December 2000 denial
of their motion for a preliminary injunction requiring expedit-
ed processing of their FOIA requests. The only issue before
this court is whether those requests qualify for expedited
treatment under the statute. Because the agencies have not
yet completed processing the document requests themselves,
the sufficiency of their searches for responsive documents, as
well as the merits of any exemptions from production they
might eventually claim, are not before us.

As the district court noted, in considering a plaintiff's
request for a preliminary injunction a court must weigh four
factors: (1) whether the plaintiff has a substantial likelihood
of success on the merits; (2) whether the plaintiff would
suffer irreparable injury were an injunction not granted; (3)
whether an injunction would substantially injure other inter-
ested parties; and (4) whether the grant of an injunction
would further the public interest. See, e.g., Serono Labs.,
Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). We
"review the district court's weighing of the preliminary in-
junction factors under the abuse of discretion standard, and
its findings of fact under the clearly erroneous standard.
[T]o the extent the district court's decision hinges on ques-
tions of law, however, our review is essentially de novo." Id.
at 1318 (citations and internal quotations omitted). On this
appeal, the parties principally dispute the first factor--wheth-

__________
3 In a footnote, the court stated that it would have reached the
same conclusion even if it had applied a de novo standard. Decem-
ber Opinion at 13 n.6; see infra note 9.

er plaintiffs have a substantial likelihood of success on the
merits. For the reasons stated in the district court's opinion,
we agree that the other factors counsel against granting
plaintiffs relief. See December Opinion at 14-16. According-
ly, our decision regarding plaintiffs' likelihood of success on
the merits will effectively decide whether plaintiffs are enti-
tled to a preliminary injunction. See Serono Labs., Inc., 158
F.3d at 1326.

Plaintiffs raise two challenges to the district court's deci-
sion that they are unlikely to succeed on the merits. First,
they argue that the court applied an improperly deferential
standard of review to the agencies' determinations that there
is no "compelling need" for expedited treatment. Plaintiffs
claim that the court should have reviewed those determina-
tions de novo--anew, without any deference to the agencies.
Second, plaintiffs contend that there is in fact a "compelling
need" for expedited treatment, and that the court therefore
erred in denying them preliminary relief. The Reporters
Committee for Freedom of the Press, joined by other public
interest organizations, has filed an amicus curiae brief sup-
porting plaintiffs' contention that de novo review is required,
but taking no position as to whether expedited review is
warranted in this case. We consider the appropriate stan-
dard of review--both for the district court and for this
court--in this Part, and the application of that standard to
plaintiffs' request for expedition in Part III.

A

The standard of review to be applied by a district court to
agency expedition determinations is a question of law, which
this court must itself decide de novo. Id. at 1318. The
district court concluded that it should apply the deferential
standard set forth in the Administrative Procedure Act
(APA), which empowers a reviewing court to set aside agency
action only when it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." Decem-
ber Opinion at 8 (quoting 5 U.S.C. s 706(2)(A)). The APA,
however, "provides a default standard of judicial review ...

where a statute does not otherwise provide a standard."
Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 n.12 (D.C. Cir.
1995); see Workplace Health & Safety Council v. Reich, 56
F.3d 1465, 1467 (D.C. Cir. 1995). In this case, FOIA sets
forth its own standard of judicial review, rendering the APA
standard inapposite.

In 1996, Congress amended FOIA to provide for expedited
processing of requests for agency records. See Electronic
Freedom of Information Act Amendments of 1996, Pub. L.
104-231, s 8, 110 Stat. 3048, 3051-52. Pursuant to those
amendments, codified at paragraph 6(E) of 5 U.S.C. s 552(a),
agencies are to promulgate regulations "providing for expe-
dited processing of requests for records--(I) in cases in which
the person requesting the records demonstrates a compelling
need; and (II) in other cases determined by the agency." 5
U.S.C. s 552(a)(6)(E)(i). Agencies are directed to "process as
soon as practicable any request for records to which [they
have] granted expedited processing." Id. s 552(a)(6)(E)(iii).
The amendments further provide that an agency decision "to
deny ... a request for expedited processing ... shall be
subject to judicial review under paragraph (4), except that the
judicial review shall be based on the record before the agency
at the time of the determination." Id.

The cross-referenced paragraph (4) is the provision that
authorizes judicial review of an agency's decision to withhold
records from a FOIA requestor. It states in relevant part:

On complaint, the district court ... has jurisdiction to
enjoin the agency from withholding agency records and
to order the production of any agency records improperly
withheld from the complainant. In such a case the court
shall determine the matter de novo, and may examine
the contents of such agency records in camera to deter-
mine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsec-
tion (b) of this section, and the burden is on the agency
to sustain its action.

Id. s 552(a)(4)(B) (emphasis added). Although it is not abso-
lutely clear that the cross-reference in paragraph 6(E) was

intended to include paragraph (4)'s de novo standard of
review, that is surely the most straightforward reading of the
statute. Indeed, that reading is virtually compelled by the
language of paragraph 6(E), which states that the denial of
expedition "shall be subject to judicial review under para-
graph (4), except that the judicial review shall be based on the
record before the agency at the time of the determination."
Id. s 552(a)(6)(E)(iii) (emphasis added). Because paragraph
(6)(E) directs that paragraph (4) shall govern review of
denials of expedition with only one exception, and because
that exception does not involve the de novo review mandated
by paragraph (4), the logical conclusion is that de novo review
is the proper standard for a district court to apply to a denial
of expedition.4

The government defends the deferential review employed
by the district court on three principal grounds. First, it
argues that review limited to "the record before the agency at
the time of the determination," id., is a hallmark of deferen-
tial review under the APA. But while that language plainly
instructs courts as to which record to review, and directs
them not to look to material submitted after the agency has
made its decision, it does not command courts to review that
record deferentially rather than de novo. Indeed, that de
novo review is compatible with a limitation on the scope of the
record to be reviewed is confirmed by another paragraph of
FOIA. That paragraph authorizes judicial review of agency
decisions regarding fee waivers for processing FOIA re-
quests. Id. s 552(a)(4)(A)(vii). Although Congress likewise
limited that review "to the record before the agency," it

__________
4 We note that although paragraph (4) also provides that where
the agency withholds records, "the burden is on the agency to
sustain its action," 5 U.S.C. s 552(a)(4)(B), paragraph (6)(E) ex-
pressly provides that it is "the person requesting the records" who
must "demonstrat[e] a compelling need" for expedition, id.
s 552(a)(6)(E)(i)(I); see also H.R. Rep. No. 104-795, at 25 (1996)
("The requestor would bear the burden of showing that expedition
is appropriate."). At oral argument, plaintiffs agreed that it is their
burden to demonstrate "compelling need."

nonetheless expressly provided that "the court shall deter-
mine the matter de novo." Id.

Seizing upon this express provision for de novo review of
fee-waiver decisions, the government next argues that Con-
gress must not have intended that de novo review apply to
decisions regarding expedition, else it would have expressly
said so--just as it did for fee waivers--rather than ambigu-
ously cross-reference paragraph (4). We disagree. As dis-
cussed above, although the cross-reference is not absolutely
clear, it can hardly be called ambiguous. Moreover, the
provision regarding expedited processing was added to FOIA
in 1996. At that time, the sections providing for de novo
review of decisions to deny fee waivers and to withhold
documents were already in place. That being the case, it is
not surprising that Congress chose merely to cross-reference
an existing paragraph, rather than to restate the applicable
standard of review.5

Third, the government argues that courts should give def-
erence to the agencies' determinations because the agencies
have particular expertise concerning which FOIA requests
merit expedition. But even if the statute's language were not
dispositive with respect to the standard of review, this would
not be a case for deference to agency expertise. FOIA
directs the agencies to provide expedited processing where a
requestor demonstrates "compelling need," id.
s 552(a)(6)(E)(i)(II), and there is no reason to believe that the
agencies have expertise on that subject.

As one part of its expertise argument, the government
contends that an agency is better positioned than a court to
assess the volume of other requests pending before the

__________
5 It is true that Congress could also have used a cross-
reference when it added the provision for de novo review of fee-
waiver decisions in 1986, because the provision regarding review of
withholding decisions was already in place at that time. See Pub.
L. No. 99-570, s 1803, 100 Stat. 3207, 3207-49, 3207-50 (1986)
(codified at 5 U.S.C. s 552(a)(4)(A)). But the decision of the 1986
Congress to restate the standard tells us nothing about the inten-
tions of the 1996 Congress in using a cross-reference.

agency. That is true, but irrelevant. Nothing in the statute
or the legislative history suggests that "compelling need"
turns on the volume of other pending requests. To the
contrary, FOIA provides its own definition of "compelling
need," a definition that includes no reference to the workload
of the agency:

For purposes of this subparagraph, the term "compelling
need" means--

(I) that a failure to obtain requested records on an
expedited basis ... could reasonably be expected to pose
an imminent threat to the life or physical safety of an
individual; or

(II) with respect to a request made by a person pri-
marily engaged in disseminating information, urgency to
inform the public concerning actual or alleged Federal
Government activity.

5 U.S.C. s 552(a)(6)(E)(v). See also infra Part III (discuss-
ing legislative history).

Noting that the second branch of the above definition of
"compelling need" includes a requirement of "urgency to
inform the public," the government next argues that, because
agencies receive a wide range of FOIA requests, they have
expertise regarding the relative urgency of any particular
request. But while each agency may be in a position to
assess the urgency of a request relative to that of other
requests it has previously received, no single agency is posi-
tioned to measure the urgency of a request relative to re-
quests received throughout the government. Because "com-
pelling need," like other FOIA terms, sets a government-wide
rather than agency-specific standard, such agency-specific
"expertise" is of no significance. See Tax Analysts v. IRS,
117 F.3d 607, 613 (D.C. Cir. 1997) ("The meaning of FOIA
should be the same no matter which agency is asked to
produce its records.").

Indeed, the government's expertise argument illuminates
the larger problem with its plea for deferential review. Were
district courts required to defer to agency determinations of

"compelling need," they would have to affirm disparate (al-
beit, reasonable) decisions reached by different agencies re-
garding the same request. As the government agreed at oral
argument, however, Congress did not contemplate such a
result. Indeed, it is precisely because FOIA's terms apply
government-wide that we generally decline to accord defer-
ence to agency interpretations of the statute, as we would
otherwise do under Chevron, U.S.A., Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g.,
Tax Analysts, 117 F.3d at 613 (noting that "we will not defer
to an agency's view of FOIA's meaning" because "[n]o one
federal agency administers FOIA" and "[o]ne agency's inter-
pretation of FOIA is therefore no more deserving of judicial
respect than the interpretation of any other agency"); Re-
porters' Comm. for Freedom of the Press v. United States
Dep't of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987) (declining
to accord Chevron deference to Justice Department interpre-
tation of FOIA exemptions because FOIA "applies to all
government agencies, and thus no one executive branch entity
is entrusted with its primary interpretation"), rev'd on other
grounds, 489 U.S. 749 (1989). For the same reason, we
decline to permit district courts to defer to agency determina-
tions of "compelling need."

As is true with respect to other FOIA provisions, the
provision for expedited processing authorizes an agency to
promulgate regulations to effectuate that provision. 5 U.S.C.
s 552(a)(6)(E)(i). Although this mandate empowers each
agency to issue regulations setting forth the procedures by
which it will make expedition determinations,6 it does not
authorize an agency to offer its own definition of "compelling
need." That term is defined by FOIA itself, and because the
definition applies across the government, district courts may

__________
6 See 5 U.S.C. s 552(a)(6)(E)(ii) ("[R]egulations under this sub-
paragraph must ensure--(I) that a determination of whether to
provide expedited processing shall be made, and notice of the
determination shall be provided to the person making the request,
within 10 days after the date of the request; and (II) expeditious
consideration of administrative appeals of such determinations of
whether to provide expedited processing.").

not defer to any individual agency's effort to elaborate upon
that definition--whether through case-specific determinations
or through regulations. See, e.g., Pub. Citizen Health Re-
search Group v. FDA, 704 F.2d 1280, 1287 (D.C. Cir. 1983)
(declining to defer to an FDA regulation defining the meaning
of "trade secrets" under FOIA, because to do so "would
produce an intolerable situation in which different agencies
could adopt inconsistent interpretations of the FOIA").7

B

Having concluded that a district court must review de novo
an agency's denial of a request for expedition under FOIA,
there remains the question of what standard this court should
apply when reviewing the district court's own decision. The
statute itself does not directly address the standard of appel-
late review.8 In the typical FOIA case concerning the with-

__________
7 We note one caveat concerning deference to agency FOIA
regulations. FOIA directs each agency to promulgate regulations
providing for expedited processing, not only "in cases in which the
person requesting the records demonstrates a compelling need," but
also "in other cases determined by the agency." 5 U.S.C.
s 552(a)(6)(E)(i) (emphasis added). According to the legislative
history, the latter provision gives an agency "latitude to expand the
criteria for expedited access" beyond cases of "compelling need."
H.R. Rep. No. 104-795, at 26. A regulation promulgated in re-
sponse to such an express delegation of authority to an individual
agency is entitled to judicial deference, see United States v. Mead
Corp., 121 S. Ct. 2164, 2171 (2001), as is each agency's reasonable
interpretation of its own such regulations, see United States v.
Cleveland Indians Baseball Co., 121 S. Ct. 1433, 1444-45 (2001).
We have examined the defendant agencies' FOIA regulations appli-
cable to this case, and conclude that to the extent those regulations
expand the criteria for expedited processing beyond "compelling
need," the agencies reasonably determined that plaintiffs' requests
did not meet the expanded criteria.

8 The cross-referenced judicial review provision states that
"[o]n complaint, the district court ... has jurisdiction to enjoin the
agency.... In such a case the court shall determine the matter de
novo...." 5 U.S.C. s 552(a)(4)(B) (emphasis added). Although it

holding of requested documents, the appellate standard is
rarely in doubt. In such cases, the district court normally
has decided an issue, such as the applicability of a claimed
FOIA exemption, on summary judgment, thereby reducing
the question on appeal to whether there is a genuine issue of
material fact regarding the exemption's applicability. See,
e.g., Billington v. United States Dep't of Justice, 233 F.3d
581, 583-84 (D.C. Cir. 2000); Summers v. Dep't of Justice,
140 F.3d 1077, 1079-80 (D.C. Cir. 1998). Because the exis-
tence of a genuine issue of material fact is itself a question of
law, see Rich v. Dollar, 841 F.2d 1558, 1561 (11th Cir. 1988);
10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure s 2720, at 331 (3d ed.
1998), we review such cases de novo, see Summers, 140 F.3d
at 1080.

In this case, however, the district court did not rule on a
motion for summary judgment, but rather ruled on plaintiffs'
motion for a preliminary injunction. On appeal from such a
ruling, we review the district court's conclusions of law de
novo, but review its findings of fact only for clear error. See
Serono Labs., Inc., 158 F.3d at 1318; see also Schlefer v.
United States, 702 F.2d 233, 236 n.5 (D.C. Cir. 1983) (noting
that the court would have employed deferential rather than
de novo review had the district court's FOIA decision turned
on "resolution of a fact controversy" rather than summary
judgment); 1 James T. O'Reilly, Federal Information Disclo-
sure s 8:35, at 316-17 (3d ed. 2000) (noting that appellate
courts apply the "clearly erroneous" test in FOIA appeals
where "the issue is one of conflicting facts and competing
inferences"). The issue, then, is whether a district court's
determination of "compelling need" is a question of law or
fact.

As we discuss in Part III below, a number of elements go
into an analysis of whether "compelling need" exists. Both

__________
could be argued otherwise, the term "the court" in the second
sentence appears to refer to the district court mentioned in the
first. See generally S. Rep. No. 89-813, at 8 (1965) (explaining the
importance of a de novo proceeding in the district court).

plaintiffs and the government agreed at oral argument that
the ultimate conclusion will often rest on important underly-
ing facts: for example, the credibility of a claimant's allega-
tions regarding governmental activity, the existence of a
threat to physical safety, or whether an issue is the subject of
current news coverage. District court findings regarding
such factual matters are reviewed for clear error. See Orne-
las v. United States, 517 U.S. 690, 699 (1996); see also Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) (noting
that "[i]ssues involving credibility are normally considered
factual matters"). The ultimate question of whether a plain-
tiff has demonstrated "compelling need," however, involves
the application of a legal standard to a set of underlying facts,
and hence may perhaps best be classified as a mixed question
of law and fact. See Pullman-Standard v. Swint, 456 U.S.
273, 289-90 n.19 (1982). The appropriate standard of appel-
late review for such mixed questions is often difficult to
determine. Id. Compare Ornelas, 517 U.S. at 696-99 (hold-
ing that district court findings of "reasonable suspicion" and
"probable cause" should be reviewed de novo), with Buford v.
United States, 121 S. Ct. 1276, 1279-81 (2001) (reviewing
deferentially a district court's decision as to whether prior
convictions are "related" under the Sentencing Guidelines),
and Cooter & Gell, 496 U.S. at 399-405 (applying unitary
abuse-of-discretion standard to review of a district court's
imposition of sanctions under Federal Rule of Civil Procedure
11).

For two reasons, we need not decide whether our review of
the district court's decision should be deferential or de novo
in order to dispose of the present case. First, the district
court did not conduct a de novo review to determine "compel-
ling need," but rather deferred to the views of the agencies.
See, e.g., December Opinion at 7 ("[T]he Court will not apply
de novo review to the agencies' determinations at issue in this
case.").9 Under these circumstances, were we to defer to the

__________
9 Although the district court stated in a footnote that it would
reach the same conclusion even if it were to apply a de novo
standard, its rationale was that plaintiffs' requests had failed to

district court, we would effectively be deferring to the agen-
cies; thus, no court would have performed the de novo review
that the statute requires at least the district court to perform.
Second, as discussed below, we would reach the same conclu-
sion as that reached by the district court--that plaintiffs have
failed to demonstrate "compelling need"--regardless whether
we review the court's determination deferentially or de
novo.10 Accordingly, we will analyze the case using the
standard most favorable to the plaintiffs--de novo review--
and leave for another day the question of which standard this
court should generally apply when reviewing a district court's
determination of "compelling need."

III

We now turn to an examination of plaintiffs' claim that they
have "demonstrate[d] a compelling need" for the expedited
processing of their FOIA requests. 5 U.S.C.
s 552(a)(6)(E)(i)(I). As noted above, FOIA's definition of
"compelling need" has two branches: "(I) that a failure to
obtain requested records on an expedited basis ... could
reasonably be expected to pose an imminent threat to the life
or physical safety of an individual; or (II) with respect to a
request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual
or alleged Federal Government activity." Id.
s 552(a)(6)(E)(v). Plaintiffs claim "compelling need" only
under the second branch, and the government does not
contest that at least one of the plaintiffs, Punch Limited,

__________
meet "the requisite agency criteria for expedited processing." De-
cember Opinion at 13 n.6. As discussed above, the various agen-
cies' criteria should play no role in a de novo review.

10 Indeed, this case is so clear that, even reviewed deferentially,
any other conclusion would constitute an abuse of discretion.
Hence, there is no reason to remand the case for redetermination
by the district court. Cf. United States v. Fenner, 147 F.3d 360,
363 (4th Cir. 1998) ("We need not remand to permit the district
court to exercise its discretion to depart if its decision to do so on
remand would constitute an abuse of discretion.").

qualifies as an entity "primarily engaged in disseminating
information." Accordingly, the remaining question is wheth-
er plaintiffs have demonstrated the requisite "urgency to
inform."

The relevant legislative history, to which both the govern-
ment and appellants refer, offers considerable assistance in
interpreting "urgency to inform." As an overarching princi-
ple, the legislative history declares that "[t]he specified cate-
gories for compelling need are intended to be narrowly
applied." H.R. Rep. No. 104-795, at 26 (1996). Congress'
rationale for a narrow application is clear: "Given the finite
resources generally available for fulfilling FOIA requests,
unduly generous use of the expedited processing procedure
would unfairly disadvantage other requestors who do not
qualify for its treatment." Id. Indeed, an unduly generous
approach would also disadvantage those requestors who do
qualify for expedition, because prioritizing all requests would
effectively prioritize none.

The legislative history provides the following, more specific
guidance as well:

The standard of "urgency to inform" requires that the
information requested should pertain to a matter of a
current exigency to the American public and that a
reasonable person might conclude that the consequences
of delaying a response to a FOIA request would compro-
mise a significant recognized interest. The public's right
to know, although a significant and important value,
would not by itself be sufficient to satisfy this standard.

Id. In addition, the statute requires that the request concern
"actual or alleged Federal Government activity." 5 U.S.C.
s 552(a)(6)(E)(v)(II). Thus, in determining whether request-
ors have demonstrated "urgency to inform," and hence "com-
pelling need," courts must consider at least three factors: (1)
whether the request concerns a matter of current exigency to
the American public; (2) whether the consequences of delay-
ing a response would compromise a significant recognized
interest; and (3) whether the request concerns federal gov-
ernment activity. The legislative history also indicates that

"[t]he credibility of a requestor" is a relevant consideration.
H.R. Rep. No. 104-795, at 26.

Plaintiffs' claim of urgency founders upon the first of these
factors. Their complaint and request for expedition focuses
on records relating to the deaths of Princess Diana and Dodi
Al Fayed in a 1997 automobile accident, and specifically on
records relating to allegations that the NSA taped the
Princess' telephone calls, that in 1998 the United States
denied entry to an informant with information about the
involvement of MI6 in the accident, and that in 1998 Mo-
hamed Al Fayed was the victim of an attempted fraud.
Assuming the credibility of these allegations, which the gov-
ernment disputes, plaintiffs have not demonstrated that their
FOIA requests relate to "a matter of a current exigency to
the American public." Id. All of the events and alleged
events occurred two to three years before plaintiffs made
their requests for expedited processing. Although these top-
ics may continue to be newsworthy, none of the events at
issue is the subject of a currently unfolding story.

Plaintiffs contend that at least one of their requests--that
for documents regarding the fraud scheme--does not merely
concern a subject of historical interest, but extends to events
that occurred just prior to the filing of their amended com-
plaint. At that time, the United States Attorney's Office for
the District of Columbia advised Al Fayed's representatives
that it had insufficient evidence to prosecute participants in
the attempted fraud. Plaintiffs allege that by declining to
prosecute, the Office broke its promise to those representa-
tives, perhaps due to pressure from the CIA and FBI. Again
putting the credibility of these disputed allegations to one
side, plaintiffs' claims do not meet the standard of "urgency
to inform." Even if the information sought is properly char-
acterized as "current," it cannot fairly be said to concern a
matter of "exigency to the American public." There is no
evidence in the record11 that there is substantial interest,

__________
11 See 5 U.S.C. s 552(a)(6)(E)(iii) ("[J]udicial review shall be
based on the record before the agency at the time of the determina-
tion.").

either on the part of the American public or the media, in this
particular aspect of plaintiffs' allegations. Indeed, the record
does not contain any news reports on the subject of the
United States Attorney's alleged refusal to prosecute, other
than reports on the press conference plaintiffs held to an-
nounce the filing of their complaint. See Pls. Ex. 12 (J.A.
324-329); see also December Opinion at 11 n.4. Such evi-
dence is insufficient to demonstrate that the request concerns
a matter of current exigency. Moreover, plaintiffs have not
demonstrated any "significant adverse consequence" that
would result if their request for expedited processing of these
or any other documents were denied, and they therefore
received the documents later rather than sooner. See H.R.
Rep. No. 104-795, at 26 ("By requiring a 'compelling need,' the
expedited access procedure is intended to be limited to cir-
cumstances in which a delay in obtaining information can
reasonably be foreseen to cause a significant adverse conse-
quence to a recognized interest.").12

IV

We conclude that a district court must apply de novo
review to agency denials of expedited processing under
FOIA. In this case, the agencies' denials survive de novo
review because plaintiffs have not demonstrated a "compel-
ling need" for the requested records. We do not decide
whether plaintiffs will ultimately be entitled to the documents
they seek--only that the agencies are not required to give

__________
12 In their second request for injunctive relief from the district
court, plaintiffs suggested that their request was urgent because
they " 'question[ed] the integrity and conduct of federal government
officials' who 'with the forthcoming change of a presidential admin-
istration' " might soon leave the government. December Opinion at
15 n.8 (quoting Zaid Aff. pp 10-11). On the record before the
agency, the district court properly regarded this argument as
speculative, both because there was no evidence that plaintiffs'
allegations "involve[d] federal employees who will not remain with
the government," and because the claim that public officials cannot
be held accountable "if they are no longer with the government is
conjectural." Id.

plaintiffs' requests priority over those made by other media
representatives or the public at large. The order of the
district court, denying plaintiffs' motion for preliminary in-
junctive relief, is

Affirmed.