FOIA: Court Ruling Requires Faster Substantive Agency Responses and Allows Court Intervention Earlier if Necessary

A federal court of appeals recently confirmed the tight deadlines under which a federal agency must provide a substantive response to a Freedom Of Information Act ("FOIA") request or risk being taken to court. Specifically, the court held that a FOIA requester may proceed directly to federal district court without having to pursue any administrative remedies if the agency fails to provide an adequate response to the request within the statutory deadline.

Under FOIA, an agency shall:

determine within 20 [business] days after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.

5 U.S.C. § 552(a)(6)(A)(i). In "unusual circumstances," as defined under the statute, the agency may obtain another 10 days upon written notification to the FOIA requester. 5 U.S.C. § 552(a)(6)(B)(i). Regardless, if a requester disagrees with the agency's determination – e.g., the requester does not believe that the agency can withhold certain documents under a FOIA exemption – it generally must exhaust all administrative remedies before it may proceed to federal district court and seek relief. However, if no determination is provided or an inadequate determination is made, the requester can go to court immediately.

The United States Court of Appeals for the District of Columbia Circuit, in Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n, No. 12-5004 (D.C. Cir. April 2, 2013) ("CREW"), recently held that an agency's determination must provide specific details as to whether the agency will comply with the request or not. The court stated that "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 the agency plans to withhold under any FOIA exemptions." Slip Op. at 10. The court further explained that:

[i]n order to make a ‘determination' . . ., the agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the ‘determination' is adverse.

Slip Op. at 15. If the agency does not fulfill these requirements, the requester can sue in federal district court, with the court then supervising the agency's response to the request. The actual production of the documents, however, need not occur within the initial time period. But, as the court noted, "FOIA requires that the agency make the records ‘promptly available,' which depending on circumstances typically would mean within days or a few weeks of a ‘determination,' not months or years." Slip Op. at 16.

This decision will make it more difficult for federal agencies to, as the court said, "keep FOIA requests bottled up for months or years on end while avoiding judicial oversight." Slip Op. at 18. It remains to be seen, however, what the practical effect of this decision will be. Agencies will retain some leverage given that some requesters may not want to incur the time and expense of a lawsuit. Furthermore, if the result is an increasing number of FOIA lawsuits, we may see an effort to amend the statute and secure more time to make substantive responses. In fact, this is precisely what the court suggested at the end of its opinion when discussing the FEC's objections to such tight statutory constraints. Slip Op. at 18.

In the final analysis, a targeted and limited FOIA request, now more than ever, should result in a much quicker response than has been the case. Additionally, a requester now can go to court immediately if the agency unnecessarily delays making a proper determination.