CREW Wins Major Victory on FOIA Procedure
Today, in CREW v. Federal Election Comm’n (D.C. Cir.), CREW won a major victory in a case the D.C. Circuit described as raising an “important question of procedure” under the Freedom of Information Act. At issue was the meaning of the requirement under the FOIA that agencies make a determination on a request within 20 business days. The FEC had argued, and the district court below had agreed, that all an agency need do within 20 days is advise the requester the agency intends to comply with the request at some point.
The D.C. Circuit disagreed, finding — as CREW had argued — that within 20 days an agency must: (1) gather and review responsive documents; (2) determine and communicate the scope of documents it intends to release and withhold, and the reasons for any withholdings; and (3) inform the requester of its right to appeal any adverse determination The court noted, “It is not enough that, within the relevant time period, the agency simply decide to later decide,” as the FEC had argued. Accordingly, the court reversed the judgment below and remanded the case to the district court for consideration of CREW’s arguments on the merits of the FEC’s withholdings.
This is an important victory. Had the FEC’s interpretation prevailed, agencies could have met their responsibility to make a determination simply by sending out a letter that acknowledges receiving the request and states the agency will get to it in turn. In those circumstances, FOIA requesters could have been left in limbo for months, or possibly years, with no access to judicial review. The D.C. Circuit’s holding prevents this unjust result and, as the court itself stated, enforces the “comprehensive scheme” in the FOIA “that encourages prompt request-processing and agency accountability.”