PRIOR HISTORY:
[**1] Appeal from the United States District Court for the District of
Columbia. (No. 00cv02092).

DISPOSITION:
Affirmed.

COUNSEL:
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.

JUDGES:
Before: HENDERSON, TATEL, and GARLAND, Circuit Judges. Opinion for the
Court filed by Circuit Judge GARLAND.

OPINIONBY:
GARLAND

OPINION:

[*301]

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. @ 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, [**2] we affirm the district
court's refusal to grant plaintiffs injunctive relief.

[*302] I

PAGE 2
254 F.3d 300,

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 concerning 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 conversations. Id. P 63. They also
contend that following the automobile accident, a former British intelligence
officer provided French investigators with evidence that Paul had been secretly
employed by the British foreign intelligence service ("MI6"). Id. P 18. Plaintiffs further allege,

"upon information 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 [**3] 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 arrested
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. n1 Shortly thereafter, they filed
a complaint in the United States District Court for the District [**4] of
Columbia, charging that the agencies had wrongfully withheld the
requested records. See 5 U.S.C. @ 552(a)(4)(B). Plaintiffs also filed a motion for
a preliminary injunction directing the agencies to expedite the processing
of the FOIA requests. See id. @ 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 [*303] 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"). n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

n1 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, Immigration 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
PAGE 3
254 F.3d 300,

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. @ 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. [**5]

n2 Plaintiffs' motion was styled as a "Motion for a Temporary
Restraining Order and/or Preliminary Injunction, Or, in the Alternative, to Compel
Expedited Processing." The district court treated 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
Opinion 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - -

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 [**6] suffer irreparable injury if the
injunction 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 issued); 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 processing of their requests only if they
demonstrate a "compelling need" for expedition. 5 U.S.C. @ 552(a)(6)(E)(i)(I). As a
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 expedited processing. Id. at 13. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

n3 In a footnote, the court stated that it would have reached the same

conclusion even if it had applied a de novo standard. December Opinion at
13n.6; see infra note 9.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -
[**7]

II

Plaintiffs appeal the district court's December 2000 denial of their
motion for a preliminary injunction requiring expedited 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
PAGE 4
254 F.3d 300,

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 interested
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 injunction
factors under the abuse of discretion standard, [**8] and its [*304] findings
of fact under the clearly erroneous standard. To the extent the district
court's decision hinges on questions 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--whether 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. Accordingly,
our decision regarding plaintiffs' likelihood of success on the merits will
effectively decide whether plaintiffs are entitled to a preliminary
injunction. See Serono Labs., Inc., 158 F.3d at 1326.

Plaintiffs raise two challenges to the district court's decision 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 determinations de novo--anew,
without any deference to the [**9] 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 supporting 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 standard 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....

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 Mohamed Al Fayed was the victim of an attempted fraud. Assuming the
credibility of these allegations, which the government disputes, plaintiffs have not
demonstrated that their FOIA requests [**29] 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 topics 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 complaint. 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
representatives, 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 characterized as "current," it cannot fairly be said to concern
a matter of "exigency [**30] to the American public." There is no evidence
in the record n11 that there is substantial interest, either on the part of the
American public or the media, in this particular aspect of plaintiffs'

PAGE 12
254 F.3d 300,

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 announce the filing of their
complaint. See Pls. Ex. 12 (J.A. 324-329); see also December Opinion at
11 n.4.
Such evidence 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 circumstances in which a delay in obtaining information can
reasonably be foreseen to cause a significant adverse consequence to a
recognized interest."). n12

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
- - -

n11 See 5 U.S.C. @ 552(a)(6)(E)(iii) ("Judicial review shall be based
on the record before the agency at the time of the determination."). [**31]

n12 In their second request for injunctive relief from the district
court, plaintiffs suggested that their request was urgent because they "
'questioned the integrity and conduct of federal government officials' who 'with the
forthcoming change of a presidential administration' " 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 "involved 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
- - -

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 "compelling
need" for the requested records. We do not decide whether plaintiffs will
ultimately be entitled to the documents they seek--only that [**32] the agencies are
not required to give 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 injunctive relief, is

Affirmed.