The D.C. Circuit Court of Appeals has ruled that the Freedom of Information Act (FOIA) requires federal agencies to issue a determination about what will be produced to or withheld from a FOIA requester within statutory deadlines; a failure to do so is deemed the exhaustion of administrative remedies and allows the requester to bring an action in federal court to compel the production of responsive documents. Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, No. 12-5004 (D.C. Cir., decided April 2, 2013). The Federal Election Commission (FEC) contended that it could simply inform a FOIA requester within the 20-day deadline (or 30 days in “unusual circumstances”) that it would produce non-exempt responsive documents and claim exemptions in the future.

According to the court, FEC’s interpretation of the statute would allow an agency to “keep FOIA requests bottled up in limbo for months or years on end.” FEC claimed that the requester had no basis for bringing an administrative appeal until several months beyond the statutory deadline, when it finally produced records and issued a letter indicating what exemptions would be claimed. The court agreed that the requester had no decision to appeal until the letter issued, “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 [the plaintiff’s] request amply demonstrates the impermissible Catch-22 it seeks to enshrine in the law.”

While acknowledging the burdens on federal agencies of complying with FOIA requests, the court stated, “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 intent, it may so inform Congress and seek new legislation.” The court reversed the district court’s grant of the commission’s motion for summary judgment and remanded for further proceedings.