- Procedural: The D.C. Circuit states "[t]he exhaustion issue in this case boils down to what kind of agency response qualifies as a 'determination.'" The D.C. Circuit holds that "to make a 'determination' within the statutory time periods and thereby trigger the administrative exhaustion requirement, the agency need not actually produce the documents within the relevant time period[,] [b]ut the agency must at least indicate within [that time] the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents." The D.C. Circuit turns to the statue and finds "[f]our aspects of the statute lead us to that interpretation." First, the D.C. Circuit notes "[t]he statutory requirement that an agency provide 'the reasons' for its 'determination' strongly suggests that the reasons are particularized to the 'determination'–most obviously, the specific exemptions that may apply to certain withheld records." Next, "[t]he requirement that the agency notify the requester about administrative appeal rights further indicates that the 'determination' must be substantive, not just a statement of a future intent to produce non-exempt responsive documents." To allow otherwise would create a "Catch-22" where "[a] requester cannot appeal within the agency because the agency has not provided the necessary information[, y]et the requester cannot go to court because the requester has not appealed within the agency." Third, "[t]he statutory list of circumstances that permit an agency to extend the 20–working–day timeline to make a 'determination,' . . . clearly contemplates that the agency must actually gather the responsive documents and determine which it will produce and which it will withhold." Finally, "the exceptional circumstances provision presumes that an agency operating outside the 20–working–day window needs more time to finish gathering and reviewing documents, and more time to decide what to produce and to withhold." "The agency would not need more time merely to state a preliminary intention to produce whatever non-exempt records are eventually found." The D.C. Circuit concludes, "that a 'determination' . . . must be more than just an initial statement that the agency will generally comply with a FOIA request and will produce non-exempt documents and claim exemptions in the future." To "trigger the administrative exhaustion requirement, [an] 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." As the court summarizes, "[a]n agency usually has 20 working days to make a 'determination' with adequate specificity, such that any withholding can be appealed administratively. An agency can extend that 20-working-day timeline to 30 working days if unusual circumstances delay the agency's ability to search for, collect, examine and consult about the responsive documents." Beyond that, if the agency "still need[s] more time to respond," while exhaustion is not required, "in such exceptional circumstances, the agency may continue to process the request, and the court (if suit has been filed) will supervise the agency's ongoing process, ensuring that the agency continues to exercise due diligence in processing the request."
Citizens for Responsibility and Ethics in Washington v. FEC, No. 12-5004, 2013 WL 1296289 (D.C. Cir. Apr. 2, 2013) (Kavanaugh, J.)
Tuesday, April 2, 2013
Re: Request for several categories of records, including certain correspondence, calendars, agendas, and schedules of Commissioners Disposition: Reversing district court's grant of summary judgment for defendant; remanding for further processing
Court of Appeals
Updated August 6, 2014