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DC FOIA Decision

DC FOIA Decision

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Published by Jim
Court Decision on FOIA
Court Decision on FOIA

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Published by: Jim on Apr 03, 2013
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07/12/2014

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United States Court of Appeals
 
FOR THE DISTRICT OF COLUMBIA CIRCUIT
 Argued October 16, 2012 Decided April 2, 2013No. 12-5004C
ITIZENS FOR
R
ESPONSIBILITY AND
E
 THICS IN
W
ASHINGTON
,A
PPELLANT
 v.F
EDERAL
E
LECTION
C
OMMISSION
,A
PPELLEE
 Appeal from the United States District Courtfor the District of Columbia(No. 1:11-cv-00951)
Anne L. Weismann
argued the cause for appellant. Withher on the briefs was
Melanie Sloan
.
 Julie A. Murray
and
Adina H. Rosenbaum
were on thebrief 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, enteredappearances.
 
2Before: G
RIFFITH
and K 
AVANAUGH
,
Circuit Judges
, andS
ENTELLE
,
Senior Circuit Judge
.Opinion for the Court filed by
Circuit Judge
 
AVANAUGH
.
AVANAUGH
,
Circuit Judge
:
 
 This case presents animportant question of procedure under the Freedom of Information Act: When must a FOIA requester exhaustadministrative appeal remedies before suing in federal districtcourt to challenge an agency’s failure to produce requesteddocuments?As a general matter, a FOIA requester must exhaustadministrative appeal remedies before seeking judicialredress. But if an agency does not adhere to certain statutorytimelines in responding to a FOIA request, the requester isdeemed by statute to have fulfilled the exhaustionrequirement.
See
5 U.S.C. § 552(a)(6)(C)(i). To trigger the exhaustion requirement, an agency mustmake and communicate its “determination” whether tocomply with a FOIA request – and communicate “the reasonstherefor” – within 20 working days of receiving the request,or within 30 working days in “unusual circumstances.”
Id.
 § 552(a)(6)(A)(i), (a)(6)(B)(i). If the agency has made andcommunicated its “determination” in a timely manner, therequester is required to administratively appeal that“determination” before bringing suit. But if the agency hasnot issued its “determination” within the required time period,the requester may bring suit directly in federal district courtwithout exhausting administrative appeal remedies.
 
3 The exhaustion issue in this case boils down to what kindof agency response qualifies as a “determination.” Inparticular, when an agency responds to a request within 20working days but merely tells the requester that the agencywill produce non-exempt responsive documents and claimexemptions in the future, is that a “determination” within themeaning of the statute, as defendant FEC argues? Or must theagency, even if it need not produce the documents within 20working days, at a minimum indicate the scope of thedocuments it will produce and the exemptions it will claim, asplaintiff CREW argues?Based on the language and structure of FOIA, we agreewith CREW. In order to make a “determination” within thestatutory time periods and thereby trigger the administrativeexhaustion requirement, the agency need not actually producethe documents within the relevant time period. But theagency must at least indicate within the relevant time periodthe scope of the documents it will produce and the exemptionsit will claim with respect to any withheld documents.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 appealremedies before filing its FOIA suit. We reverse the contrary judgment of the District Court and remand for furtherproceedings.ICitizens for Responsibility and Ethics in Washington –known as CREW – is a nonprofit organization that, amongother things, advocates for the right of citizens to know aboutthe activities of government officials. CREW pursues that

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