Citizens for Responsibility and Ethics in Washington (CREW) sued the Federal Election Commission (FEC) on May 24, 2011, when it failed to produce documents on individuals at the FEC, who CREW believed were refusing to enforce campaign finance laws. The lawsuit challenged the withholding of the documents and also the Justice Department’s interpretation of a rule in freedom of information law that requires agencies to communicate a “determination” on whether it will comply with the FOIA request within 20 working days.
By law, as the ruling describes, “A FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.”
The Justice Department had argued to ”trigger the requirement that a requester actually exhaust administrative remedies before bringing suit, the government merely needs to indicate that it is in the process of responding to the request.” But, Judge Brett Kavanaugh did not agree with this argument.
“An agency could respond to a request within 20 working days in terms not susceptible to immediate administrative appeal – by simply stating, in essence, that it will produce documents and claim exemptions over withheld documents in the future,” Kavanaugh stated in the decision. “Then, the agency could process the request at its leisure, free from any timelines. All the while, the agency’s actions would remain immune from suit because the requester would not yet have been able to appeal and exhaust administrative appeal remedies.”
Therein lies the Catch-22 that the agency seeks to jam into FOIA: A requester cannot appeal within the agency because the agency has not provided the necessary information. Yet the requester cannot go to court because the requester has not appealed within the agency. Although the agency may desire to keep FOIA requests bottled up in limbo for months or years on end, the statute simply does not countenance such a system, as we read the statutory text.
In the case, “the FEC claimed it made a ‘determination’ within 20 working days of CREW’s FOIA request, but CREW was not informed of its appeal rights until June 23, more than 75 working days after the FOIA request.” Kavanaugh added that CREW had no decision to appeal until June 23, when a letter was received indicating documents had been withheld under multiple FOIA exemptions. This fact shows no “determination” was made in March, as the statute requires.
“By arguing that it made a “determination” in March and simultaneously saying that nothing could be administratively appealed until June,” Kavanaugh concluded. “The FEC’s position on CREW’s request amply demonstrates the impermissible Catch-22 it seeks to enshrine in the law.”
Anne Weismann of CREW reacted to the “big win” for open government and the defeat of an effort by the Justice Department to argue in the courts that it could “gut” FOIA:
…Congress very purposefully required agencies to process requests within tight deadlines — first 10 days, later amended to 20 days — recognizing that delay in access often is tantamount to denial. Had the government’s distorted view of the statute prevailed, requesters would have been at the mercy of agencies, unable to go into court for months or possibly years while they waited to be told what the agency was withholding and why…
The National Security Archive, which awarded the Justice Department the Rosemary Award for “worst open government performance by a federal agency over the past year” last month, noted if the Department had failed FOIA requesters could have been prevented from ever getting to court.
The Archive’s Tom Blanton declared, “The Justice Department, by making outrageous litigation claims like the ones the D.C. Circuit rejected today, is undermining President Obama’s entire open government agenda. Attorney General Holder needs to provide some adult supervision, or another presidential term will pass with Justice’s lawyers making the same old secrecy arguments.”
That is the key question. As Weismann wrote, “The question that still needs to be answered is why the Justice Department took such a radical position on the meaning of the FOIA. This position is at odds with the department’s own internal guidance and the view that has prevailed since time limits were added to the statute, and would deny requesters timely access to courts when agencies refuse to comply with their obligations.
Last month, Blanton informed Congress during a hearing on FOIA held during Sunshine Week that the Justice Department had not in any case since 2009 “changed its litigation posture and refused to defend an agency” that was withholding documents. That means since 2009, whenever a requester has challenged agency refusals to provide responsive documents, the Justice Department has come to the aid of that agency.
The Justice Department has also not updated its FOIA regulations despite freedom of information law.
Attorney General Eric Holder called for a “presumption of openness” in FOIA in March 2009. Since then, the Justice Department has fought requesters seeking information, which citizens have a clear right to know. Particularly, the Department has defended claimed national security exemptions and argued in courts that it can withhold documents that essentially allow the Executive Branch to have a secret body of law unknown to Americans.
This is an important check on the Justice Department’s abuse of secrecy powers, especially since if it had been found to be permissible by the court it would have given all government agencies the freedom to process requests whenever they pleased. The next check needs to be a forcing of the release of Office of Legal Counsel memos because the Justice Department should not be allowed to keep citizens from knowing what aspects of executive power are justified and unjustified under the law.
Image by DonkeyHotey released under Creative Commons License