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Federal court says expedited review denials will be reviewed anew

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  1. Freedom of Information

    NMU         D.C. CIRCUIT         Freedom of Information         Jul 13, 2001    

Federal court says expedited review denials will be reviewed anew

  • Courts will review agency decisions on granting “expedited review” to Freedom of Information Act requesters and make their own decisions without deferring to the judgments of the agencies, under a ruling of the U.S. Court of Appeals in Washington, D.C.

In the first appeals court decision to interpret expedited review provisions in the amended federal Freedom of Information Act, a three-judge panel in Washington, D.C., refused July 13 to grant expedited review to FOI requests by Mohamed Al Fayed and Punch Limited, the satirical British periodical which he owns.

But the court nonetheless made an important ruling favoring some FOI requesters who need information right away: Expedited review questions may be decided anew by a court which does not have to defer to underlying decisions of federal agencies. That standard is referred to as de novo review.

The court agreed with a lower court and with the Department of Justice that Al Fayed was not entitled to priority placement for processing of his FOI requests for information on a fraud scheme relating to fictitious documents about the late Diana, Princess of Wales, and Dodi Al Fayed, Mohamed’s son, killed with Diana in a 1997 car crash in Paris.

But it made that decision evaluating the facts of the case on its own, and it rejected government arguments that the court should only determine if agency decisions to deny expedited review were reasonable.

The 1996 Electronic FOI Act allows certain requesters to seek expedited review. Journalists and others are able to take advantage of the provisions if they are “information disseminators” with an “urgency to inform the public” about “actual or alleged” government activity. Others may seek expedited processing if failure to provide information could provide an “imminent threat” to life or physical safety. Agencies may also select other criteria for granting expedited review.

Although it said it would decide standards for expedited review “another day,” the court listed some considerations for determining if an “information disseminator” is entitled to priority processing: “whether the request concerns a matter of current exigency to the American public,” “whether the consequences of delaying a response would compromise a significant recognized interest” and “whether the request concerns federal government activity.”

The Reporters Committee for Freedom of the Press, along with the Electronic Privacy Information Center, the American Civil Liberties Union of the National Capital Area, The Center for National Security Studies and the National Security Archive, filed a friend-of-the-court brief, urging the court to allow courts to review expedited review denials without having to defer to the decisions of agencies so that courts can effectively enforce the expedited review provisions.

The case was appealed to the Court of Appeals from a decision by the federal district court in Washington, D.C., that Al Fayed, and Punch were not entitled to expedited review.

(Al-Fayed v. Central Intelligence Agency; Media Counsel: Mark Zaid, Washington, D.C.) CC

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© 2001 The Reporters Committee for Freedom of the Press

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