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FOIA Update: OIP Guidance: Procedural Rules Under the D.C. Circuit's Oglesby Decision

FOIA Update
Vol. XII, No. 2

OIP Guidance

Procedural Rules Under the D.C. Circuit's Oglesby Decision

In their implementation of the Freedom of Information Act, federal agencies must pay careful attention to all procedural, as well as substantive, provisions of the Act. Just as the contours of FOIA exemptions continue to evolve through the process of judicial interpretation, the Act's procedural provisions as well can be shaped and defined by major court decisions. In some instances, such decisions require adjustments in the administration of the Act.

The D.C. Circuit Court of Appeals' recent decision in Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir.1990), is such an instance. In Oglesby, the D.C. Circuit last December addressed three procedural aspects of FOIA administration, requiring agencies to adjust their administrative practices in two of these three respects. First, it set forth a new interpretation of the rule of "administrative exhaustion" under the Act, which affects the handling of FOIA matters at the administrative level as well as in litigation. Second, it placed a new procedural obligation on agencies that now must be met whenever they fail to locate records responsive to FOIA requests. It also made some dicta statements regarding the mechanics of FOIA disclosure which should not be followed as a matter of sound administrative practice.

The Oglesby Case

The Oglesby case involved FOIA requests made to several different federal agencies. The requester, writer Carl Oglesby, used the FOIA in his research of subjects related to espionage activities conducted during and after World War II. He requested records on various such subjects from six agencies, including the State Department and the National Archives and Records Administration, from which he received a variety of responses.

In all, Oglesby received a total of 384 pages of records from the six agencies, with many records or record portions withheld as exempt and with certain parts of his requests left unfilled where no responsive records could be located. Additionally, his requests for fee waivers were denied by the agencies in several instances. See 920 F.2d at 60-61.

Oglesby waited for all six agencies to respond to his FOIA requests, but he did not file an administrative appeal with any of the agencies. Rather, he filed a FOIA lawsuit in district court, where he challenged the agencies' use of FOIA exemptions, their fee waiver denials, and their inability to locate records responsive to some parts of his requests. The district court reached the merits of all of these issues and ruled in favor of the defendant agencies on all counts.

The D.C. Circuit's Decision

When Oglesby appealed the district court's decision to the D.C. Ciruit Court of Appeals, however, the case took an entirely different turn. On appeal, the D.C. Circuit paid close attention to the fact that Oglesby had failed to pursue any of his FOIA claims with the agencies through the administrative appeal process before bringing his lawsuit. This raised the question of whether the district court properly had jurisdiction to consider the merits of Oglesby's case to begin with.

The D.C. Circuit decided that as to all of the agencies involved in the case except one, ordinary court jurisdiction under the FOIA was lacking. It concluded that, under what is known as the "exhaustion of administrative remedies" rule governing judicial review of administrative agency determinations, FOIA requesters such as Oglesby should be required to administratively appeal denials of their FOIA requests before proceeding to court. 920 F.2d at 61. The D.C. Circuit applied this rule in Oglesby's case even though all of the agencies involved had failed to respond to his FOIA requests within the Act's initial ten-day time limit; it thus did not allow Oglesby the benefit of any "constructive" exhaustion of his administrative remedies under the Act's special such provision, 5 U.S.C. § 552(a)(6)(C).Id.

The single exception to this outcome, the D.C. Circuit found, was Oglesby's FOIA request to the Department of State. All of the other agencies had formally notified Oglesby of his right to take an administrative appeal, as required by the Act in the case of any "adverse determination." 5 U.S.C. § 552(a)(6)(A)(i). The State Department, however, had not located any record responsive to Oglesby's FOIA request and therefore had not included an administrative appeal notification in its response letter. Viewing such a "no record" response as an "adverse determination," the D.C. Circuit concluded that Oglesby was not obligated to appeal that response administratively in the absence of any notification of his right to do so. See 920 F.2d at 67.

Accordingly, the D.C. Circuit reviewed the merits of the State Department part of the case (which it remanded for further proof of adequacy of search), but it ordered the dismissal of Oglesby's claims against the other five agency defendants for lack of administrative exhaustion. See id. at 71. In recognition of the novelty of its exhaustion rule as applied for the first time in Oglesby's case, though, it ruled that he would be specially permitted to file administrative appeals to the five agencies even though the agencies' regulation deadlines for doing so had long since expired. See id. at 65 & nn.9-10.

Thus, in finding a lack of court jurisdiction regarding five of the six agencies involved in the case, and in distinguishing the circumstances of the sixth agency as well, the D.C. Circuit in Oglesby broke new ground on procedural FOIA issues that require further attention.

Administrative Exhaustion Rule

The most significant aspect of the Oglesby decision is its entirely new application of the rule of exhaustion of administrative remedies under the FOIA, which it employed to gain maximum advantage of the rule. See id. at 61-65.

It has long been recognized that the general rule requiring administrative exhaustion applies in FOIA cases as well as in other cases of administrative law; the rule operates to limit judicial review to those cases that cannot be resolved at the administrative level. See, e.g., Tuchinsky v. Selective Serv. Sys., 418 F.2d 155, 158 (7th Cir. 1969). The FOIA contains a major limitation on this rule, however, insofar as it provides that a FOIA requester "shall be deemed to have exhausted his administrative remedies" whenever an agency fails to comply with a time limit of the Act. 5 U.S.C. § 552(a)(6)(C).

Heretofore, this "constructive" exhaustion provision was interpreted by the courts to mean that once an agency breached its initial ten-day response deadline on a FOIA request, the requester's exhaustion requirement was immediately and irrevocably satisfied, entitling him to proceed to court at any time. See 920 F.2d at 62 n.4, citing, e.g., Information Acquisition Corp. v. Department of Justice, 444 F. Supp. 458, 462 (D.D.C. 1978); see also FOIA Update, Jan. 1983, at 6. This was so even where the agency ultimately responded to the request before the requester actually filed suit. See id.

Now, in Oglesby, the D.C. Circuit has interpreted this "constructive" exhaustion provision to merely provide FOIA requesters with an "option to go to court immediately" if they so choose. 920 F.2d at 61. It has held that if a FOIA requester, like Oglesby, does not exercise his right to go to court directly after the agency breaches its response deadline, then he may lose the benefit of "constructive" exhaustion if the agency provides him with a proper response (including notification of his administrative appeal right) before he actually files his FOIA lawsuit. Stated another way: "[A]n administrative appeal is mandatory if the agency cures its failure to respond within the statutory time period by responding to the FOIA request before suit is filed." Id. at 63.

This means that a FOIA request can possibly proceed according to the following chronology: Ten working days after the request is filed, in the absence of any response from the agency, the requester becomes entitled to bring suit on that request without any further requirement of administrative exhaustion. If the requester chooses not to sue at that time, however, he retains the right to sue only until such time as the agency provides him with a proper FOIA response. At that later time, with the agency response issued, the requester loses his right to sue until he exhausts his administrative appeal remedy -- which requires filing such an appeal in a timely fashion and then awaiting at least the expiration of the 20-day statutory deadline for administrative appeal adjudication. See 5 U.S.C. § 552(a)(6)(A)(ii).

Agencies should be mindful of the operation of this new administrative exhaustion rule at the administrative level. Of particular significance under Oglesby is a FOIA requester's obligation to file an administrative appeal within a fixed time specified in an agency's FOIA regulations. Many agencies specify appeal time limits, such as 30 or 60 days; others currently do not. See, e.g., 920 F.2d at 65 n.9 (citing regulations of agencies involved in Oglesby). Such limits provide a useful measure of finality to FOIA administration, both at the administrative level as well as in court, see id. at 65, citing Spannaus v. Department of Justice, 824 F.2d 52, 59 (D.C. Cir. 1987), so all agencies should pay especially close attention to them now under the Oglesby decision.

"No Record" Responses

Also deserving of administrative attention is the D.C. Circuit's conclusion in Oglesby that the State Department's "no record" response constituted an "adverse determination" under the Act. Until now, as a matter of standard administrative practice, agencies have not regarded such FOIA responses as "adverse determinations" requiring notification of administrative appeal rights under 5 U.S.C. § 552(a)(6)(A)(i).See, e.g.,FOIA Update, Summer 1984, at 2.

In Oglesby, however, the D.C. Circuit has interpreted the Act otherwise. Based upon the rationale that "[a] FOIA requester, dissatisfied with the agency's response that no records have been found, may wish to challenge the adequacy of the agency's search," it has firmly held that an agency's "no record" response to a FOIA request triggers the agency's statutory notification obligation. 920 F.2d at 67. As in Oglesby, an agency may not argue failure to exhaust in such a situation if it itself fails to provide such notification. Accord FOIA Update, Fall 1985, at 6.

Most significantly, this new statutory interpretation means that agencies are now obliged to alter their practices to include administrative appeal notifications in all of their "no record" responses to FOIA requesters. Making such an adjustment is necessary in order for agencies to follow the clear statutory command of 5 U.S.C. § 552(a)(6)(A)(i), as interpreted authoritatively by the courts. See FOIA Update, Spring/Summer 1990, at 2 (explaining that agencies should follow FOIA decisions of D.C. Circuit, as circuit of "universal venue"). In so doing, and in affording administrative appeals in "no record" situations, agencies will be serving the strong interests in administrative exhaustion underlying Oglesby, by ensuring "the benefit of the full administrative process before suitis filed." 920 F.2d at 65.

The Mechanics of FOIA Disclosure

Lastly, there is an aspect of the Oglesby decision containing a suggestion on FOIA administration that should not be followed. In one portion of the case, involving the National Archives and Records Administration, Oglesby's request encompassed a large category of nonexempt records that were found "too numerous to search," so the Archives simply made them available to Oglesby for him to "review for himself." 920 F.2d at 70. In reaching its administrative exhaustion holdings, the D.C. Circuit specifically found such a disclosure to be "adequate under the FOIA," thereby suggesting that agencies may satisfy their FOIA obligations merely by making records "available" to requesters in a "reading room" fashion, instead of being compelled to send out disclosable record copies, upon request, through the mail. Id.

To the extent that Oglesby thus can be taken as a repudiation of traditional FOIA-disclosure practices, agencies should decline to follow it for several reasons. First is the startling fact that there actually existed no controversy between the parties on this point in the Oglesby case; indeed, a review of the case record reveals that Oglesby had consented to the Archives' request that he come examine those records, had searched through them to his satisfaction, and in fact had been offered mail delivery of any particular records he chose. Thus, the D.C. Circuit lost sight of the fact that the "availability" of records was not at issue in the case in the first place.

Second, the group of precedents relied upon by the D.C. Circuit in Oglesby do not firmly support its suggested approach to the Act. Three of those cases dealt with exceptional, "subscription-type" FOIA requests for which the courts found no entitlement to "automatic mailing." Mandel Grunfeld & Herrick v. Customs Serv., 709 F.2d 41, 43 (11th Cir. 1983); Eason v. NRC, 1 GDS ¶ 80,027, at 80,093 (D.D.C. 1980); see Tax Analysts v. Department of Justice, 845 F.2d 1060, 1066-67 (D.C. Cir. 1988) (dicta). A fourth cited case, Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979), involved no "mailing" issue whatsoever.

Most important of all, though, is the fact that the effective administration of the FOIA relies quite heavily upon agency transmittal of disclosable record copies to FOIA requesters by mail. For nearly a quarter-century now, federal agencies have followed the administrative practice of making records "available" under the Act through mail delivery, upon request, as a matter of routine. See, e.g., Weisberg v. Department of Justice, 705 F.2d 1344, 1347 (D.C. Cir. 1983) (describing FOIA disclosures made by mail "installments"). Accord Attorney General's Memorandum on the FOIA 23 (June 1967) (interpreting "availability" to "include the right to a copy"). As a practical matter, FOIA access would not otherwise be viable for requesters located at great distances from agency facilities. See, e.g., Fitzgibbon v. AID, 724 F. Supp. 1048,1051 n.11 (D.D.C. 1989); Harrison Bros. Meat Packing Co. v. United States, 640 F. Supp. 402, 405-07 (M.D. Pa. 1986). Accord OMB Uniform FOIA Fee Schedule and Guidelines, Sec. 7e, 52 Fed. Reg. 10011, 10018 (Mar. 27, 1987); see also id.. at 10016.

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Updated August 13, 2014