Requestors can immediately sue agencies that fail to provide timely responses, court finds

Lilly Chapa | Freedom of Information | News | April 4, 2013

Individuals seeking records under the federal Freedom of Information Act can immediately sue agencies that miss the statute's deadlines for properly responding to a request, a federal appeals court reaffirmed Tuesday.

In a victory for records requestors, the U.S. Court of Appeals in Washington, D.C. sided with the government accountability group Citizens for Responsibility and Ethics in Washington (CREW), unanimously ruling that if government agencies do not tell requestors whether they will fulfill the request within 20 days, requestors may sue the agency immediately without filing an administrative appeal.

Federal agencies recently began arguing that acknowledging that the request had been received was sufficient, which meant that a requestor had to go through the appeals process before filing a lawsuit.

The case, Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, put to rest the question of whether federal agencies could satisfy FOIA’s 20-day response deadline by simply acknowledging the request and not detailing what documents would or wouldn’t be handed over and why.

For years, requestors interpreted the statute as allowing them to sue an agency when it did not respond to requestors in a timely manner -- up to 20 days after the request was filed or up to 30 days under certain limited circumstances.

But if an agency did respond within the 20-day window, a requester had to go through the administrative appeals process before filing suit. Going through the administrative appeals before being able to sue would ultimately delay the requestor's ability to access a record.

The lower court in this case agreed with the FEC's interpretation that simply acknowledging the request fulfilled the statute, meaning that agencies could essentially put requesters in limbo, said CREW attorney Anne Weismann.

“People have a right to information, and they have a right to get it in a timely manner,” Weismann said. “One of the only clubs requestors have to hold over the heads of the agencies is the ability to go into court, and that basically would have been robbed from them and agencies would have an indefinite period to comply.”

The appeals court sided with CREW's interpretation of the statute, according to the opinion.

"The statute requires that, within the relevant time period, an agency must determine whether to comply with a request -- that is, whether a requester will receive all the documents the requester seeks," the opinion stated. "It is not enough that, within the relevant time period, the agency simply decide to later decide."

The issue arose after CREW submitted a FOIA request to the Federal Election Commission in 2011. The FEC responded to CREW a day later, acknowledging receipt of the request and agreeing to hand over non-exempt documents. However, the agency never specified what documents it would send CREW or what exemptions applied to the request.

When CREW did not receive any more information or documents, they sued the agency for access. The FEC argued that CREW should have filed an administrative appeal before suing since they technically responded to the request within the required 20 days.