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FOIA requesters score major win over Obama Administration

A federal appeals court issued a major ruling Tuesday preserving the rights of Freedom of Information Act requesters to proceed to court quickly when agencies don't comply with the legally required timelines to respond to demands for government records.

For decades, most requesters, agencies and courts have assumed that if an agency does not give a substantive response to a request within the 20 business days the FOIA statute allows, a requester can file suit to try to force such a response.

However, in 2011, a federal judge in Washington ruled in a case brought by the liberal watchdog group Citizens for Responsibility and Ethics in Washington that the Federal Election Commission's acknowledgement of a request was enough to trigger the legal requirement that a requester pursue an administrative appeal with the agency before going to court. The Obama Administration, acting through the Department of Justice, essentially backed the FEC's position.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected that stance.

"The statute requires that, within the relevant time period, an agency must determine whether to comply with a request – that is, whether a requester will receive all the documents the requester seeks," Judge Brett Kavanaugh wrote in an opinion joined by Judges David Sentelle and Thomas Griffith (and posted here). "It is not enough that, within the relevant time period, the agency simply decide to later decide. Therefore, within the relevant time period, the agency must at least inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions."

Kavanaugh described the position the FEC and the Justice Department took in the case as a "maneuver" which would establish an "impermissible Catch-22" in FOIA.

"This is an important victory," CREW said in a blog post Tuesday. "Had the FEC’s interpretation prevailed, agencies could have met their responsibility to make a determination simply by sending out a letter that acknowledges receiving the request and states the agency will get to it in turn. In those circumstances, FOIA requesters could have been left in limbo for months, or possibly years, with no access to judicial review."

The FEC represented itself in the litigation, but the judges sought and received a brief from the Justice Department laying out the Obama Administration's position. In that brief (posted here), DOJ said that once an agency promised to provide "at least some records" in response to a request, the requester had to wait to see what the agency actually released before pursuing the matter further. DOJ also said accepting CREW's position would "increase FOIA litigation that could otherwise be resolved" at the agency level.

The D.C. Circuit decision does not require that agencies actually produce the records to a requester for the response to count as a "determination" under the law. Kavanuagh said the actual production can come "typically....within days or a few weeks" of a response which lays out what the requester will and won't be getting and why.

The ruling also doesn't put teeth in the law's 20-business-day requirement, which many agencies rarely comply with even in cases granted "expedited" processing. However, by allowing requesters to sue when the time limit is up, the D.C. Circuit decision will likely accelerate some responses in some cases and make it more difficult for agencies to selectively slow walk requests.

All three judges on the panel that issued Tuesday's decision were appointed by Republican presidents. Kavanaugh and Griffith were appointed by President George W. Bush. Sentelle was appointed by President Ronald Reagan.

The D.C. Circuit ruling is technically binding only on suits filed in Washington, but all FOIA suits can be filed in D.C. and the D.C. Circuit's decisions on FOIA law are often followed by the other circuits.