CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Appellant v. FEDERAL ELECTION COMMISSION, Appellee.
No. 12-5004.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 16, 2012. Decided April 2, 2013.
This leaves only the language of the TVPA, whiсh the plaintiffs contend supersedes the common law because it renders “an individual” liable for damages in a civil action, and a head of state is “an individual.” But as even the plaintiffs acknowledge, the term “an individual” cannot be read to cover every individual; plaintiffs agree that both diplomats and visiting heads of state retain immunity when they visit the United States. Oral Arg. Recording at 33:19-34:04. Indeed, although the most analogous statute,
Because, as a consequence of the State Department‘s suggestion of immunity,* the defendant is entitled to head of state immunity under the common law while he remains in office, and because the TVPA did not abrogate that common law immunity, the judgment of the district court dismissing the plaintiffs’ сomplaint is affirmed.
Julie A. Murray and Adina H. Rosenbaum were on the brief for amici curiae Public Citizen, et al. in support of appellant.
Steve Hajjar, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Anthony Herman, General Counsel, and David Kolker, Associate General Counsel. Sarang V. Damle and Michael S. Raab, Attorneys, U.S. Department of Justice, entered appearances.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge:
This case presents an important quеstion of procedure under the Freedom of Information Act: When must a FOIA requester exhaust administrative appeal remedies before suing in federal district court to challenge an agency‘s failure to produce requested documents?
As a general matter, a FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement. See
To trigger the exhaustion requirement, an agency must make and communicate its “determination” whether to comply with a FOIA request—and communicate “the reasons therefor“—within 20 working days of receiving the request, or within 30 working days in “unusual circumstances.” Id.
The exhaustion issue in this case boils down to what kind of agency response qualifies as a “determination.” In рarticular, when an agency responds to a request within 20 working days but merely tells the requester that the agency will produce non-exempt responsive documents and claim exemptions in the future, is that a “determination” within the meaning of the statute, as defendant FEC argues? Or must the agency, even if it need not produce the documents within 20 working days, at a minimum indicate the scope of the documents it will produce and the exemptions it will claim, as plaintiff CREW argues?
Based on the language and structure of FOIA, we agree with CREW. In order to make a “determination” within the statutory time periods and thereby trigger the administrative еxhaustion requirement, the agency need not actually produce the documents within the relevant time period. But the agency must at least indicate within the relevant time period the scope of the documents it will produce and the exemp-
In this case, the FEC did not make such a “determination” within the statutory time period. As a result, CREW was not required to exhaust administrative appeal remedies before filing its FOIA suit. We reverse the contrary judgment of the District Court and remand for further proceedings.
I
Citizens for Responsibility and Ethics in Washington—known as CREW—is a nonprofit organization that, among other things, advocates fоr the right of citizens to know about the activities of government officials. CREW pursues that objective through the acquisition and dissemination of information about public officials and federal agencies.
On March 7, 2011, CREW submitted a FOIA request to the Federal Election Commission seeking several categories of records, including certain correspondence, calendars, agendas, and schedules of the Commissioners.
On March 8, the day after the FOIA request was received, the FEC emailed CREW to acknowledge receipt of the request. In several conversations that took place over the next fеw weeks, CREW agreed to exclude certain categories of documents from the FEC‘s initial search for records. The FEC in turn agreed to provide non-exempt responsive documents (and thus also claim exemptions over any withheld documents) on a rolling basis in the future. But by May 23, more than two months later, CREW had not received any documents, nor had it received a more specific statement about what documents the FEC would produce and what exemptions the FEC would claim. CREW therefore filed suit in District Court, alleging that the FEC had not responded to the FOIA request in a timely fashion and had wrongfully withheld records under FOIA.
As of May 23, thе FEC had begun—but had not completed—gathering and reviewing potentially responsive records. Subsequently, on June 15, 21, and 23, the FEC provided CREW with a total of 835 pages of documents. The agency‘s June 15th production was accompanied by a letter stating in part:
The FEC is continuing to process your request and has produced with this letter an initial round of responsive records. You will continue to receive additional responsive records on a rolling basis. Upon the agency‘s final production of records, you will receive a decision letter that will include information regarding your appeal rights. Today‘s lеtter does not constitute a final agency decision, and thus is not subject to appeal.
CREW Opposition to Motion to Dismiss at Exhibit B, CREW v. FEC, No. 11cv951 (D.D.C. July 7, 2011). The FEC sent a similar letter with its June 21st production to CREW.
Along with its final June 23rd production, the FEC informed CREW that the FEC had withheld some documents and had redacted others in accordance with FOIA Exemptions 4, 6, and 7(C). See
On June 23—the same day that it produced its final round of responsive documents—the FEC moved in the District Court to dismiss CREW‘s complaint, or, in the alternative, for summary judgment. First, the FEC contended that CREW‘s challenge to the agency‘s delay in rеsponding to a FOIA request was moot given that the agency had now responded. Second,
The District Court held that the case was not moot. But the District Court granted the FEC‘s motion for summary judgment based on CREW‘s failure to exhaust administrative appeal remedies. See CREW v. FEC, 839 F.Supp.2d 17, 23 (D.D.C. 2011). We review the District Court‘s grant of summary judgment de novo. See Blackwell v. FBI, 646 F.3d 37, 39 (D.C. Cir. 2011).1
II
In the District Court, the FEC argued that its production of responsive documents had rendered CREW‘s suit moot. Although the parties do not raise the mootness issue on appeal, the Court must independently consider its own jurisdiction. See Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994). We agree with the District Court that the case is not moot. CREW‘s complaint not only asserted that the FEC failed to respond to CREW‘s request in a timely fashion, but also raised a substantive challenge to the agency‘s withholding of responsive, non-exempt records. Even now, CREW continues to seek relief from the FEC‘s alleged failure to produce all records responsive to CREW‘s request. Therefore, the case is not moot.
III
The question presented concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.
A FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress. Sеe Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003); Oglesby v. U.S. Dep‘t of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). But if an agency fails to make and communicate its “determination” whether to comply with a FOIA request within certain statutory timelines, the requester “shall be deemed to have exhausted his administrative remedies.”
The statutory timeline relevant to this case specifies that, once an agency receives a proper FOIA request, the agency shall:
determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request 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 to the head of the agency any adverse determination.
The 20-working-day timeline is not absolute. In “unusual circumstances,” an agency may extend the time limit to up to 30 working days by written notice to the requester. Id.
- the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
- the need to search for, collect, and appropriately examine a voluminous
- the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
If the agency does not make a “determination” within the relevant statutory time period, the requester may file suit without exhausting administrative appeal remedies. Once in court, however, the agency may further extend its response time if it demonstrates “exceptional circumstances” to the court.2 (Notе that “exceptional circumstances” is different from “unusual circumstances.“) If exceptional circumstances exist, then so long as “the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.”
In short, a requester must exhaust administrative appeal remedies if the agency made and communicated its “determination” within 20 working days (or 30 working days in “unusual circumstances“).3
But what constitutes a “determination” so as to trigger the exhaustion requirement? That is the critical question here. CREW argues thаt, in order to make a “determination” within the meaning of Section 552(a)(6)(A)(i), an agency need not go so far as to produce the responsive documents but it must at least inform the requester of the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents. By contrast, the FEC contends that, in order to make a “determination,” an agency needs simply to express a future intention to produce non-exempt documents and claim exemptions. That question has never been resolved in this Court.4
Four aspects of the statute lead us to that interpretation, and helр demonstrate that the FEC‘s contrary interpretation is incorrect.
First, the statute requires that an agency, upon making a “determination” whether to comply with a FOIA request, immediately “notify the person making such request of such determination and the reasons therefor.”
Second, the statute requires that the agency immediately notify the requester of the right “to appeal to the head of the agency any adverse determination.”
This critical point both highlights and unravels the maneuver that the FEC (backed by the Department of Justice) is attempting here. Under the FEC‘s theory, an agency could respond to a request within 20 working days in terms not susceptible to immediate administrative appeal—by simply stating, in essence, that it will produce documents and claim exemptions over withheld documents in the future. Then, the agency could process the request at its leisure, free from any timelines. All the while, the agency‘s actions would remain immune from suit because the requester would not yet have been able to appeal and exhaust administrative appeal remedies. Therein lies the Catch-22 that the agency seeks to jam into FOIA: A requester cannot appeal within the agency because the agency has not provided the necessary information. Yet the requester cannot go to court beсause the requester has not appealed within the agency. Al-
This case illustrates how the FEC‘s legal position does not square with the statute. The FEC now claims that it made a “determination” in March 2011, within 20 working days of CREW‘s FOIA request. Yet the FEC did not inform CREW of its appeal rights until June 23, more than 75 working days after the FOIA request. The FEC was right that CREW did not have any decision to appeal until the FEC‘s June 23rd letter stated that the agency had withheld some documents under multiple FOIA exemptions. But that fact also necessarily shows that the FEC had not made a “determination” in March, given that the statute indicates that a “determination” must be subject to immediate appeal. By arguing that it made a “determination” in March and simultaneously saying that nothing could be administratively appealed until June, the FEC‘s position on CREW‘s request amply demonstrates the impermissible Catch-22 it seeks to enshrine in the law.5
Third, the statute contains an “unusual circumstances” safety valve that permits an agency to extend the 20-working-day period for response by up to 10 additional working days. “Unusual circumstances” are defined to encompass only “the need to search for and collect the requested records” from separate locations; “the need to search for, collect, and appropriately examine a voluminous amount” of documents; and “the need for consultation” with other agencies. Id.
Moreover, there would be no need for the unusual circumstances safety valve if, as the FEC argues, the usual 20-working-day timeline merely required an agency to make a general promise to produce non-exempt documents and claim exemptions in the future. An agency could always provide that kind of promise within 20 working days of receiving a FOIA request.
Put simply, the unusual circumstances provision to extend the time for making a “determination” makes sense only if the statute contemplates that responsive dоcuments must be collected and examined, and decisions made about which to produce, in order for the agency to make a “determination.”
Fourth, the statute provides that, once in court, an agency may further extend its response time by means of the “exceptional circumstances” safety valve. That provision says that if exceptional circumstances exist and an agency “is exercising due diligence in responding to the request,” a court may grant the agency “additional time to complete its review of the records.”
All of those statutory provisions together reinforce the conclusion that a “determination” under Section 552(a)(6)(A)(i) 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. Rather, in order to make a “determination” and thereby trigger the administrative exhaustion requirement, the 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.6
To be clear, a “determination” does not require actual production of the records to the requester at the exact same time that the “determination” is communicated to the requester. Under the statutory scheme, a distinction exists between a “determination” and subsequent production. See Spannaus v. DOJ, 824 F.2d 52, 59 n. 7 (D.C. Cir. 1987). As to actual production, FOIA requires that the agency make the records “promptly available,” which depеnding on the circumstances typically would mean within days or a few weeks of a “determination,” not months or years.
In short, unlike the FEC‘s theory, our reading of “determination” sensibly harmonizes the default 20-working-day timeline, the unusual circumstances safety valve, the exceptional circumstances safety valve, and the prompt production requirement. Together, those provisions create a comprehensive scheme that encourages prompt request-processing and agency accountability. To summarize: An agency usually has 20 working days to make a “determination” with adequate specificity, such that any withholding can be appealed administratively.
To all of this, the FEC‘s overarching retort is that it would be “a practical impossibility for agencies to process all [FOIA] requests completely within twenty days.” FEC Br. 34. We agree entirely with the FEC on this point. We are intimately familiar with the diffiсulty that FOIA requests pose for executive and independent agencies. But contrary to the FEC‘s suggestion, our reading of the statute recognizes and accommodates that reality. As our opinion today emphasizes, the 20-working-day period (actually 30 working days with the unusual circumstances provision) is the relevant timeline that the agency must adhere to if it wants to trigger the exhaustion requirement before suit can be filed. The unusual circumstances and exceptional circumstances provisions allow agencies to deal with broad, time-consuming requests (or justifiable agency backlogs) and to take lоnger than 20 working days to do so. To reiterate, if the agency does not adhere to FOIA‘s explicit timelines, the “penalty” is that the
It is true that the statute does not allow agencies to keep FOIA requests bottled up for months or years on end while avoiding any judicial oversight. But Congress made that decision. If the Executive Branch does not like it or disagrees with Congress‘s judgment, it may so inform Congress and seek new legislation. See Milner v. Department of the Navy, — U.S. —, 131 S.Ct. 1259, 1271, 179 L.Ed.2d 268 (2011) (“All we hold today is that Congress has not enacted the FOIA exemption the Government dеsires. We leave to Congress, as is appropriate, the question whether it should do so.“).
Because the FEC did not make and communicate a “determination” within the meaning of
So ordered.