SCOTT KAYLA MORRISON,
DOUGLAS G. DRY, and
DOROTHY SCHRAM,

Plaintiffs

V.

BILL COLLIER, Muskogee Office Area Director, at al.,

Defendants

This is an appeal by plaintiffs of an administrative decision which denied them, all candidates for elective office in the Choctaw Nation, access to the names and addresses of registered voters of the Choctaw Nation. (Plaintiffs' complaint, p. 1). Plaintiff Morrison originally sought that information from the defendants on September 20, 1994. (Plaintiffs' complaint, p. 8). On October 8, 1994, the defendants, through defendant Durant, denied plaintiff Morrison's request based on the tribal attorney's opinion that releasing such information was prohibited under the Freedom of Information Act (FOIA). Rather than appealing defendants' decision, plaintiff Morrison, represented by plaintiff Dry, filed an action on December 9, 1994, in the Choctaw Nation tribal court for relief. (Plaintiffs' complaint, p. 9). On March 2, 1995, the tribal court dismissed plaintiffs' action for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted against defendants Roberts and Hampton in their individual capacities. (Plaintiffs' complaint, p. 10). An appeal of that tribal court decision is presently pending in the tribal appellate court. (Plaintiffs' complaint, pp. 10-11). Approximately five and one-half months after the defendants' denial of plaintiff Morrison's request, on March 30, 1995, the plaintiffs filed an administrative appeal of defendants' denial. (Plaintiffs' complaint, p. 12). By its letter dated May 1, 1995, the FOIA appeals officer for the Department of Interior informed the plaintiffs that, due to a large number of appeals which created a heavy workload, the Department's response to plaintiffs' appeal would be delayed, and plaintiffs could treat that delay as a final denial of their appeal and seek judicial review in the United States District Court. (Plaintiffs' complaint, p. 12, and plaintiffs' motion for preliminary injunction, Exhibit V). Although plaintiffs attach exhibits A through W to their motion for preliminary injunction it is not alleged, nor does it appear that this is any part of the record before the administrative appeal officer. There is no administrative appeal record before this court.

The district court reviews a FOIA administrative decision de novo. Anderson v. Department of Health & Human Services 907 F.2d 936, 941 (10th Cir. 1990). However, this court is without any record or "decision" to review de novo. Occidental Petroleum Corp. v. S.E.C., 662 F.Supp. 496 (D.D.C. 1987). The court finds the Department of Interior's nondecision of denial, not based upon any facts but by reason of delay, is not a "decision" which invests this court with appellate review jurisdiction, This nondecision manifests a gross dereliction of duty and responsibility by the defendant agency. The law in this area is clear, and a decision should not be difficult or time consuming. U.S. Department of Justice v. Reporters Committee, 489 U.S. 749 (1989); see also, this court's order in James v. United States Department of Interior Case No. 87-204-C, United States District Court for the Eastern District of Oklahoma (Plaintiffs' motion for preliminary injunction, Exhibit 0). Further, since the Department's decision is not based upon any factual determination, It is a denial of administrative due process. Garvey v. Freeman, 397 F.2d. 600 (10th Cir. 1968).

Accordingly, the court stays this appeal and reverses the administrative decision of the Department of interior denying the plaintiffs' appeal and remands this case to the Department of Interior for a full, immediate and expedited administrative hearing on the issues and a factbased affirmative decision. To do otherwise would thwart or negate the administrative appeal process and the purpose of the law.

Further, since this is only an appeal of an administrative decision pursuant to 5 U.S.C. §552, this court finds that appeal is presently its only jurisdictional basis for this case. Even if there was some alternative jurisdiction alleged, there is an appeal presently pending in the Court of Indian Appeals: of the Choctaw Nation and the Muskogee Court of Indian Appeals on these same issues. (Plaintiffs' brief, p. 11). On that basis alone, this court would deny jurisdiction, or at the least abstain. The fact that the plaintiffs have been dilatory in seeking equity and waited until the last minute to pursue this action in this court does not make their tribal or administrative remedies inadequate.

IT IS SO ORDERED this 7th day of June, 1995.