April 02, 2013

D.C. Circuit Hands CREW a Big Win on FOIA - Why It Matters

By Anne Weismann

CREW v. FECToday, the D.C. Circuit handed CREW a big win in a Freedom of Information Act (FOIA) lawsuit CREW brought against the Federal Election Commission (FEC).  At issue was the meaning of the requirement in the FOIA that agencies make a “determination” within 20 days. 

The FEC, joined by the Department of Justice (DOJ), had argued all an agency need do under this provision is advise the requester the agency intends to respond at some future date by producing non-exempt documents and claiming exemptions.  The D.C. Circuit disagreed, ruling — as CREW had argued — the FOIA requires agencies within 20 days to review responsive documents and tell requesters what they are producing, what they are withholding, and why.

So what does this mean and why does this matter?  This ruling means the FOIA works as we have always understood, at least before the FEC and DOJ tried to gut it. 

Congress very purposefully required agencies to process requests within tight deadlines — first 10 days, later amended to 20 days — recognizing that delay in access often is tantamount to denial.  Had the government’s distorted view of the statute prevailed, requesters would have been at the mercy of agencies, unable to go into court for months or possibly years while they waited to be told what the agency was withholding and why.  As the D.C. Circuit recognized, its reading of “determination” “harmonizes…a comprehensive scheme that encourages prompt request-processing and agency accountability.”

The question that still needs to be answered is why the Justice Department took such a radical position on the meaning of the FOIA.  This position is at odds with the department’s own internal guidance and the view that has prevailed since time limits were added to the statute, and would deny requesters timely access to courts when agencies refuse to comply with their obligations. 

We’ve said it before and we’ll say it again: This is not the more accountable and transparent government both President Obama and Attorney General Holder promised us over four years ago.

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