Faxing a FOIA appeal to the wrong number proved costly to The Pearl Project, which is seeking information about the 2002 killing of journalist Daniel Pearl, and received a court setback on Thursday.
Barbara Feinman, co-director of The Pearl Project at The Center for Public Integrity and the plaintiff in a lawsuit against the CIA, FBI and other agencies, had asked the FBI for records referencing various groups that have been linked to terrorism. The FBI responded that it had no such records and instructed Feinman that she could submit an administrative appeal to the Department of Justice’s Office of Information Policy. By mistake, the appeal was instead sent to the FBI’s FOIA office.
After she received no response to her appeal, Feinman brought a lawsuit (also involving several other FOIA requests) in the federal district court for the District of Columbia. In an opinion issued Thursday, the court said a FOIA requester must generally exhaust all administrative remedies before challenging an outcome in court. Because the appeal never reached the Office of Information Policy, that condition was not met.
The court ruled that the burden is on the requester to properly submit the administrative appeal and not, generally, on the agency to forward an appeal sent to it in error. The court dismissed the portion of the lawsuit relating to that FOIA request.
The court also refused to allow Feinman to add to the lawsuit a challenge of an FBI policy requiring a signed privacy waiver from foreign nationals before processing FOIA requests relating to them. Because the FBI changed its position on that point after the lawsuit was filed and agreed to process Feinman’s requests that were affected by the policy, the court ruled she had no standing to challenge the policy.