U.S. Federal Court Undercuts Catch-22 Delay Strategy

5 April 2013

A federal appeals court April 2 ruled against a federal agency strategy that impeded Freedom of Information Act requesters from going to court to fight delays in responding to FOIA requests.

The court overturned a lower court’s 2012 decision in a case brought by the liberal watchdog group, Citizens for Responsibility and Ethics (CREW), against the Federal Election Commission.

The three judge panel of the D.C. Circuit Court criticized the agency for trying to establish an “impermissible Catch-22” in FOIA.

The FEC, backed by the Justice Department, contended that an agency’s promise to provide “at least some records” was a “determination,” meaning that the requester had to file an internal administrative appeal before going to court over tardy information production. Justice Department had argued that 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.”

The court disagreed.  While the agency did not have to produce all the documents to have made a determination, the court said, it did have to “at least indicate … the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.”

“This is an important victory,” CREW said.  “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.”

CREW Chief Counsel Anne Weismann said: “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.”


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