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Courts will take new look at expedited review decisions

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  1. Freedom of Information
From the Summer 2001 issue of The News Media & The Law, page 42.

From the Summer 2001 issue of The News Media & The Law, page 42.

A federal appeals panel in Washington, D.C., making its first decision on expedited review provisions of the Freedom of Information Act, ruled in mid-July that courts will review agency decisions on expedited review with a fresh new look, not just a review of whether the agency decision was arbitrary.

Expedited review by federal agencies of FOI requests is available to journalists who can demonstrate a “compelling urgency” to inform the public about an “actual or alleged government activity.” A requester asks for expedited review at the same time he files an FOI request, but the law requires that agencies get back to the requester within five days to tell him whether he is entitled to expedited review. Expedited review may also be available to others who demonstrate a “compelling need.” (See NM&L, Spring 2001, p. 34)

The U.S. Court of Appeals in Washington, D.C., told Mohamed Al Fayed and Punch Magazine, the British periodical he owns, that he was not entitled to expedited review for requests he filed.

He is seeking information from several agencies, including the CIA and the FBI. He wants records concerning a fraud scheme relating to fictitious documents concerning the deaths of his son Dodi Al Fayed and Diana, Princess of Wales, killed in a 1997 car crash in Paris.

Despite its refusal to grant Al Fayed expedited review, the appeals 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 that 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 the Department of Justice that Al Fayed was not entitled to priority placement for processing of his FOI request

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

In the Electronic Freedom of Information Act of 1996, Congress addressed the critical problem of delays in FOI processing by allowing some requesters with “compelling needs” for information to move to the head of the FOI processing line. Among the “compelling needs” the Act described was one that would entitle an “information disseminator” who can demonstrate an urgency to inform the public of actual or alleged government activity.

Al Fayed claimed that as owner of Punch he was an information disseminator and the public’s continued interest in Dodi and Diana’s deaths and efforts by schemers to sell him fraudulent documents, some of which made claims against the CIA, were matters of “compelling urgency” meriting expedited review.

In December 2000, a federal district court in Washington, D.C., upheld the decision of government agencies who had denied Al Fayed expedited review. It said the decisions of the agencies were not arbitrary and that they had not abused their discretion in denying expedited review.

Al Fayed appealed. He said that the decision of the agencies was wrong, that the public needed information about how these schemes were being treated. He also said that the district court should have considered facts before it and made a new decision. He said the FOI Act demands de novo review.

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 that courts review expedited review denials without having to defer to the decisions of agencies, so that courts can effectively enforce these provisions.

The appeals panel told Al Fayed and Punch that their claim of urgency founders because they do not demonstrate that the requests are “a matter of current exigency to the American public.” Even though some of the requested records concerned very recent events — such as the U.S. Attorney’s Office refusal to prosecute alleged fraud participants — the events are part of a currently unfolding story, the court said, not a story that needs immediate telling. The appeals court noted a lack of either public or media interest in Al Fayed’s allegations even though he had held a press conference to explain them.

However, courts and not the agencies will make the decisions on expedited review in response to court appeals, the panel said. It rejected agencies’ claims that they were in a better position than the courts to understand “compelling need.” The terms of the FOI Act apply government-wide, and would not tolerate an agency-specific standard, the court said. An agency may be able to assess the relative urgency of processing requests it has in hand, but that is irrelevant to whether expedited review is deserved.

The appeals panel did not decide if the de novo standard of expedited review applies to appeals panels reviewing the decisions of lower courts. It would “leave for another day” the question of de novo review at the appeals court. — RD