Note: This was posted to my old site earlier this year; I was able to recover a draft. I am posting it for posterity; the date stamp is an estimate only.
The Freedom of Information Act (FOIA) is one of the most important tools of the news media, government watchdogs, and citizens who care about transparency and government accountability. Anyone can file a FOIA request, describing government records they are seeking, and if the government has the documents described, it must turn them over. This is subject to certain exceptions: for example, if the documents implicate personal privacy of citizens, or national security.
Many government agencies receive a lot of these requests, leading to substantial backlogs and delays in responding. Congress has seen fit, over the years, to try to speed the process up by creating deadlines for the government in the FOIA process. If the government does not meet these deadlines, the requester can take them to court.
For example, when a requester first submits a FOIA request, the government must “determine within 20 [working] days … whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal….” 5 U.S.C. § 552(a)(6)(A)(i). Failing to meet this deadline gives the citizen the right to sue. If the citizen sues, the government agency can also end up on the hook for the requester’s court costs and attorney’s fees, which adds some teeth to the right to sue.
Recently, the Federal Election Commission (FEC), having failed to respond to a request from the government watchdog CREW, tried to get off the hook with a novel legal argument. They argued that, in fact, they had responded to the request, by acknowledging they had received it and would respond with some documents. But in this so-called “response” or “determination,” the FEC had not given any reasons for withholding other documents, and had asserted that their communications were not final decisions that could be appealed; the law, as quoted above, seems to require more.
The FEC managed to persuade the trial court that they had “responded,” and that CREW had no right to sue them. CREW appealed this decision, and the DC Circuit ruled that, indeed, the statute requires more of a response than the FEC gave. Allowing the government to respond with a simple “placeholder” response — that they had received the request and will respond at some point in the future — would create a huge loophole for government agencies to exploit. It would undermine the whole point of having a deadline, and it simply doesn’t satisfy what the law requires.
Now, in fairness, the FEC wasn’t being totally ridiculous or unreasonable. The court did note that they had communicated back and forth with CREW in a reasonable manner soon after the request was submitted, asking if CREW would agree to exclude certain documents, and producing others on a rolling basis. Such collaboration isn’t uncommon between requesters and agencies, and often improves the efficiency of the whole process. In fact, they had finished the process within four months, which, unfortunately, as these things go, is pretty quick (although it’s possible that CREW’s lawsuit, filed in month three, sped things up in this case).
But even if one thinks that the FEC was acting reasonably and in good faith here, that doesn’t change what the law says they have to do. Further, the court always has to think about the impact of their ruling on other cases, and creating a huge loophole on what counts as a response could undermine the FOIA process in many other cases.
The DC Circuit’s important decision re-affirms the right of FOIA requesters to sue when agencies delay giving a clear response about what documents they will produce and why. Most people already assumed that this was the law, but the court’s decision makes it clear, and the rule urged by the FEC would have greatly undermined FOIA’s system of deadlines. The court’s decision, going forward, will protect citizens from undue agency delay when they seek information, and uphold the values of transparency and accountability embodied in FOIA.