The U.S. Court of Appeals for the D.C. Circuit has issued a significant decision holding that the common agency practice of providing open-ended initial responses to requests for records under the Freedom of Information Act (“FOIA”) violates statutory requirements for prompt agency “determinations” and that judicial review of incomplete responses may be available after the initial 20-business-day period for agency responses to FOIA requests. The ruling should prompt agencies to provide more substantive and robust initial determinations and provide requesting parties with faster and more reliable access to federal courts to challenge an agency’s failure to respond or decision to withhold records.

Citizens for Responsibility and Ethics in Washington (“CREW”) v. Federal Election Commission involved the application of the statutory requirement that agencies must, within 20 business days of receipt of a FOIA request, determine “whether to comply with such request,” provide notice to the requester of the determination and “the reasons therefor,” and notify the requester of the right “to appeal to the head of the agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). The statute allows agencies to extend this deadline to 30 business days on written notice and given certain specified “unusual circumstances,” including the need to collect records from field facilities or other establishments; to search for, collect, and examine “a voluminous amount” of records; or to consult with another agency. If the agency does not issue its determination within the statutory deadline the requesting party can bring an immediate federal action to seek to compel a response from the agency. 5 U.S.C. § 552(a)(6)(C)(i). However, if the agency provides its determination within the statutory deadline, or before such an action is filed, the requesting party must first exhaust its administrative appeal remedies before seeking judicial relief. See Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61-65 (D.C. Cir. 1990).

Given the high volume of FOIA requests and limited resources, agencies typically face a substantial backlog of pending FOIA requests and have struggled to meet statutory deadlines. In an effort to buy time and to forestall federal court actions, many agencies adopted the practice of providing open-ended initial responses that state an intention to provide non-exempt records on a rolling basis and defer the decision to apply exemptions and withhold documents until a future final response. The agencies took the position that these responses satisfied the requirement to provide a prompt “determination” under 5 U.S.C. §552(a)(6)(A)(i), and that requesting parties who received such responses must therefore exhaust their administrative appeal rights before seeking judicial relief. These responses did not include any “adverse determinations” and thus were not ripe themselves for administrative appeal. Moreover, agencies typically withheld any “adverse determinations” until the final response, which could take months or years. Parties who received these responses found themselves essentially in limbo – unable to pursue an administrative appeal challenging the agency’s response but also barred from filing a federal court action unless they could convince a federal judge that the agency’s actions in delaying its final determination were tantamount to a constructive denial of the request.

On April 2, 2013, the D.C. Circuit clarified the agencies’ obligations and requesters’ route to judicial review. In CREW v. FEC, the D.C. Circuit overturned the district court decision that had upheld this approach, and rejected the argument that these open-ended initial responses were sufficient to satisfy the statutory requirement for a prompt “determination.” The Federal Election Commission and the Department of Justice had argued that expressing a “future intention to produce non-exempt documents and claim exemptions” satisfied the requirement to provide a “determination” under 5 U.S.C. § 552(a)(6)(A)(i).

Relying on the statutory language and structure, the D.C. Circuit held that an agency could not simply “decide later to decide,” but must instead provide a substantive, appealable determination within the statutory guidelines. More specifically, the agency must (i) gather and review the documents, (ii) determine and communicate the scope of 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, all within the 20-30 day statutory deadline. The D.C. Circuit held that actual production of the records at the time of the determination is not required, but that the agency should make the records “promptly available,” which would “typically mean within days or a few weeks of a ‘determination,’ not months or years.” In short, the D.C. Circuit held that FOIA does not allow agencies to keep FOIA requests “bottled up” in the review process for indefinite periods of time while avoiding judicial review.

As the D.C. Circuit acknowledged, and as anyone familiar with the FOIA process will readily recognize, agencies as a practical matter likely will not be able to comply with the statutory deadlines in many instances. The “penalty” for failing to meet the deadlines is that the agency “cannot rely on the administrative exhaustion requirement to keep [those] cases from getting into court.” Ideally, the CREW decision will spur agencies to re-evaluate their FOIA practices and develop more efficient processes for handling and responding to FOIA requests in a more timely manner. FOIA requesters should benefit from the CREW decision by receiving more robust, appealable determinations and/or a faster and clearer path to judicial oversight, if desired. Although federal courts are themselves typically subject to backlogs and delays, and FOIA requesters without a compelling reason to justify expedited judicial review may also face delays in getting their requests resolved in court, overall, this is a favorable decision for those seeking information under FOIA.