Freedom of Information Act’s ‘Catch 22’ Is Kaput

     (CN) – In an important ruling for hunters of government documents, the D.C. Circuit endorsed their ability to quickly file suit if their requests are denied or unanswered.
     The advocacy group Citizens for Responsibility and Ethics in Washington, or CREW, had sued the Federal Elections Commission in May 2011 over its request for the correspondence, calendars, agendas and schedules of commissioners.
     CREW said it had placed its request at least two months earlier, but that it had not yet gotten a page or a received statement outlining the documents that it could expect.
     Though the FEC turned over 835 pages in June 2011, it refused to specify what documents were left, or call the letter a final determination, frustrating CREW’s rights to an appeal. It appended only a letter that said other documents would be sent on a “rolling basis.”
     A federal judge had let the commission swat away the lawsuit by claiming that CREW had not exhausted all administrative remedies, but the D.C. Circuit reversed Tuesday, characterizing the FEC’s tactic as something out of a Joseph Heller novel.
     “Under the FEC’s theory, 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,” Judge Brett Kavanaugh wrote for a three-member panel. “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.”
     Though the 20 working day requirement already excludes for weekends and federal holidays, agencies have another “safety valve” written into FOIA allowing them to extend their response time by ten additional days under “unusual circumstances,” the 19-page ruling states.
     “There would be no need for the unusual circumstances safety valve if, as the FEC argues, the usual 20- working-day timeline merely required an agency to make a general promise to produce non-exempt documents and claim exemptions in the future,” Kavanaugh wrote.
     The court emphasized that the law forces agencies to comply with the time limit for a determination, not for actually producing the documents.
     “As our opinion today emphasizes, the 20-working-day period (actually 30 working days with the unusual circumstances provision) is the relevant timeline that the agency must adhere to if it wants to trigger the exhaustion requirement before suit can be filed,” the opinion states. “The unusual circumstances and exceptional circumstances provisions allow agencies to deal with broad, time-consuming requests (or justifiable agency backlogs) and to take longer than 20 working days to do so. To reiterate, if the agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.”
     Celebrating the ruling, CREW’s chief counsel Anne Weismann criticized the Obama administration for promising unprecedented transparency while arguing against FOIA’s time constraints.
     “We’ve said it before and we’ll say it again: This is not the more accountable and transparent government both President Obama and Attorney General Holder promised us over four years ago,” Weismann wrote in a blog post.

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