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FOIA: Administrative Appeal Remedies Deemed Exhausted when Agency Fails to Timely Determine Scope of its Intended Response

In April, 2013, the D.C. Circuit clarified the circumstances under which an agency response to a request for records under the Freedom of Information Act (FOIA) is (in)sufficient to trigger the requirement that, before bringing suit in federal court to challenge an agency’s failure to produce requested documents, a FOIA requester must exhaust administrative appeal remedies.

To trigger the exhaustion requirement, the D.C. Circuit held, an agency must, pursuant to 5 U.S.C. § 552(a)(6)(A)(i), make and communicate its “determination” whether or not, and to what extent, it intends to comply with a FOIA request, as well as its “reasons therefor,” within 20 working days of receiving the request (or within 30 working days in “unusual circumstances”). The agency need not actually produce the requested documents within that time period, but failure to issue its “determination” within that time period relieves the request of the requirement to exhaust administrative appeal remedies before suing in federal court.

In March, 2011, Citizens for Responsibility and Ethics in Washington (CREW) submitted a FOIA request to the Federal Election Commission (FEC) seeking several categories of records pertaining to FEC Commissioners. Over the course of 2 ½ months, the FEC agreed to provide non-exempt documents on a rolling basis in the future, but did not specify what documents it would produce or what exemptions it would claim.

CREW filed suit in district court, alleging that the FEC had not responded to its request in a timely manner. The district court granted summary judgment to the FEC on the ground that CREW had failed to exhaust its administrative appeal remedies.

On appeal, the D.C. Circuit reversed, rejecting the FEC’s contention that, in order to satisfy its statutory obligation to make a “determination” with respect to a FOIA request, an agency need only express a future intention to produce non-exempt documents and claim exceptions. Such an interpretation of the statutory language was untenable, the Court held, because it would “allow agencies to keep FOIA requests bottled up for months or years on end while avoiding judicial oversight.”

Because the FEC did not make and communicate a “determination” within the meaning of the statute within 20 working days of receiving CREW’s FOIA request, the Court held, CREW was deemed to have exhausted administrative appeal remedies, and its suit could proceed. See: Citizens for Responsibility and Ethics in Washington v. FEC, 711 F. 3d 180 (D.C. Cir. 2013)

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Related legal case

Citizens for Responsibility and Ethics in Washington v. FEC