I. Procedural Considerations

As an initial matter, after being denied expedited review, you must first decide whether to appeal within the agency or to file a lawsuit. While a requester must exhaust all administrative appeals prior to filing a lawsuit in some cases — such as appeals of denials of fee waivers — you may immediately file suit upon being denied expedited review.³ As one court explained, an administrative appeal for expedited review is not “a prerequisite for judicial review.”⁴ However, in most circumstances, the more common (and less costly) approach upon denial of an expedited review request is to first try to resolve the matter in the administrative appeal process.

Note that once an agency provides “a complete response” to a FOIA request, a court will no longer have the authority to address a claim that the agency wrongfully denied expedited processing.⁵ That is, at the point that an agency releases all responsive records to the requester — whether this occurs before the requester files suit for expedited processing or during the ongoing lawsuit — the court loses authority to hear the expedited review claim. However, one court specified that an agency response to the request does not remove the court’s ability to address the claim unless and until the agency’s substantive response to the request “is ‘complete,’” which may require the court to examine the “merits” of the FOIA request to address a requester’s claim that additional documents should have been produced.⁶

In appealing a denial of expedited review either within the agency or before a court, a journalist must successfully argue that there is a “compelling need” for the information.