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Appeals panel rejects FOI cut-off date for record review

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Feb 6, 2002    

Appeals panel rejects FOI cut-off date for record review

  • Judges said State Department officials waived the deadline policy for Public Citizen only to avoid a lawsuit from the public interest group.

The Department of State cannot categorically refuse to review records created after a Freedom of Information Act request is received, according to a Jan. 25 ruling from the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.).

Although the State Department has a backlog of requests, its cut-off policy is unreasonable, an appellate panel ruled. The court said a refusal to provide newer records forced requesters to file new requests and increased the agency’s processing time.

However, Judge David Tatel, writing for the panel, said the date-of-receipt cut-off rule could be applied reasonably under other circumstances.

Public Citizen, a public interest group in Washington, D.C., sent an FOI Act request to the State Department in April 1998 seeking records that showed the department’s system for managing word processing files and electronic messages. Department officials said they received the request but would not retrieve records created after the request was received.

Public Citizen sued. It said the agency had adopted an unreasonable date-of-receipt cut-off date without giving notice and receiving public comments as would be required by the Administrative Procedures Act.

The lower court dismissed the suit in May 2000 because the agency “as a courtesy” had not actually applied the cut-off date. Public Citizen appealed.

Tatel said it appeared that the department waived the cut-off policy only to avoid having it attacked by a vigorous litigant like Public Citizen.

The panel rejected Public Citizen’s argument that the cut-off requirement should have been published for public comment, saying that it was simply a procedural rule which agencies can make without notice. However, it said that the State Department’s application of the rule was unreasonable.

(Public Citizen v. Department of State; FOI attorney: Michael Tankersley) RD

© 2002 The Reporters Committee for Freedom of the Press

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