Court Case Could Exacerbate FOIA Delays
by Peter Pellizzari*, 6/18/2012
A recent court decision may make it more difficult and more time-consuming for people to receive materials from federal agencies when filing Freedom of Information Act (FOIA) requests. It would allow agencies to delay FOIA requests more easily, which could hamstring those who rely on the law, including the open government community, journalists, and other advocacy groups. OMB Watch today joined an amicus brief urging the court to reverse the ruling.
Here's how FOIA is supposed to work: once an agency receives a request, it has 20 working days to decide whether it will grant the request and turn over the information. If the agency will not grant the request, it must explain why and notify the requester of his or her right to appeal the decision. If the requester does not receive a decision within 20 working days, he or she may file suit against the agency. These deadlines and procedures are important to create accountability in processing FOIA requests.
On March 7, 2011, Citizens for Responsibility and Ethics in Washington (CREW) submitted a FOIA request to the Federal Election Commission (FEC) for the correspondence and calendars of FEC commissioners.
In the months following the request, the FEC failed to give CREW any information except that the agency was processing the request and would release documents at some point in the future. The commission did not issue any official determination about whether it would grant or deny the request. On May, 23 of that year, the 20 working-day deadline having long since passed, CREW sued the FEC for the requested documents.
On Dec. 30, 2011, the U.S. District Court for the District of Columbia dismissed the case, ruling that the FEC's communication with CREW before the lawsuit had constituted a legitimate "determination" and that CREW had not exhausted its administrative remedies before filing suit. The court stated that an agency only needs to "(1) notify the requesting party within twenty days that the agency intends to comply; and (2) produce the documents 'promptly'" in order to make a legitimate determination.
CREW appealed this decision, sending the case to the U.S. Court of Appeals for the D.C. Circuit. OMB Watch has joined Public Citizen and others in the open government community in supporting CREW's position.
As the transparency groups' brief explains, the district court's ruling would undermine FOIA. What the district court constitutes as a satisfactory determination conflicts with FOIA's legislative history and its current "determination provision." FOIA's structure and plain language make it clear that an agency's determination must include a grant or deny – a clear "yes" or "no" – not simply a notice that the agency is processing the request with intent to disclose documents in the future.
If the D.C. Circuit upholds the district court's ruling, it could have damaging implications for the future of government transparency as well as citizens' right to know, in that it essentially allows an agency to say it will be releasing documents at some point and then simply string out the process of actually handing over information for months or years. FOIA is a fundamental tool for ensuring government is responsive to its citizens, and having set time frames for handing over information is critical for its effective operation. The district court's standard would make it harder for the public to get answers.
The FEC is due to file its brief on July 10. The D.C. Circuit has yet to set a date for oral argument.