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 Weisman 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: