UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 11-951 (CKK) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS MOTION TO 

DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

July 18, 2011 (202) 694-1650

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 1 of 15
TABLE OF CONTENTS 

 Page 

I. CREW’S COMPLAINT SHOULD BE DISMISSED AS MOOT ....................................2 

 A. CREW’s Cause of Action Challenges the Timing of 

 the Commission’s Response ....................................................................................2 

 B. The Completeness of the Record Production Is Not 

 Before the Court .......................................................................................................4 

II. CREW FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES ........................5 

 A. Requiring Exhaustion Would Give the Commission a Chance 

 to Address CREW’s Contentions and Conserve Judicial Resources .......................5 

 B. Petit-Frere Is Consistent with Circuit Precedent .....................................................8 

CONCLUSION ........................................................................................................................11 

-iCase 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 2 of 15
TABLE OF AUTHORITIES 

 Page 

Cases 

Amaya-Flores v. U.S. Dep’t of Homeland Security, No. 06-225, 

2006 WL 3098777 (W.D. Tex. Oct. 30, 2006) ....................................................................4 

Hill v. U.S. Air Force, 795 F.2d 1067 (D.C. Cir. 1986) ............................................................3 

Kowalczyk v. U.S. Dep’t of Justice, 73 F.3d 386 (D.C. Cir. 1996) ............................................6 

Nation Magazine v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995) ................................3 

Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) ..........................5, 7, 8, 9, 10 

Omari v. Ashcroft, No. 04-104, 2004 WL 2534229 (N.D. Tex. Nov. 8, 2004) .........................2 

Petit-Frere v. U.S. Attorney’s Office for S.D. of Fla., 664 F. Supp. 2d 69 

 (D.D.C. 2009) .......................................................................................................7, 8, 9, 11 

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987) ...........................................10 

Voinche v. FBI, 999 F.2d 962 (5th Cir. 1993) ...................................................................2, 3, 4 

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) ..........................................3 

White v. Lappin, No. 08-1376, 2009 WL 1921337 (D.D.C. July 2, 2009) ................................3 

Statutes 

5 U.S.C. § 552(a)(6)(A)(i) ...............................................................................................6, 9, 10 

5 U.S.C. § 552(a)(6)(C) .............................................................................................................3 

5 U.S.C. § 552(a)(6)(C)(i) ..........................................................................................................7 

Other Authorities

Department of Justice Guide to the Freedom of Information Act 743 (2009), 

available at http://www.justice.gov/oip/foia_guide09/litigation-considerations.pdf. .......10 

Department of Justice Guide to the Freedom of Information Act 59 (2009), 

available at http://www.justice.gov/oip/foia_guide09/procedural-requirements.pdf .........6 

 

-iiCase 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 3 of 15
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 11-951 (CKK) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS MOTION TO 

DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

CREW has prematurely invoked the jurisdiction of this Court, asking it to intercede in an 

ongoing administrative matter. Within two days of receiving the FOIA request at issue here, the 

Commission agreed to provide responsive records. Within three weeks, the Commission had 

communicated with CREW several times, clearly indicating that it was in the process of 

responding. And by the time the Commission had moved this Court to dismiss, or in the 

alternative, to grant summary judgment in its favor, the Commission had provided CREW with 

all records to which it is entitled. CREW’s complaint should be dismissed both because it is 

moot and because CREW failed to exhaust administrative remedies before bringing suit. 

CREW’s arguments misconstrue what is required of an agency responding to a FOIA request and 

attempt to convert plaintiff’s timeliness case into one about the adequacy of the documents 

provided. FOIA forecloses such a short-circuiting of the administrative process. 

 

1 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 4 of 15
I. CREW’S COMPLAINT SHOULD BE DISMISSED AS MOOT 

A. CREW’s Cause of Action Challenges the Timing of the Commission’s 

Response 

CREW’s complaint is moot because it alleges that the Commission has failed to produce 

any records in response to CREW’s FOIA request, but the Commission has now provided all the 

nonexempt materials to which CREW is entitled. (Federal Election Commission’s Memorandum 

in Support of its Motion to Dismiss or, in the Alternative, for Summary Judgment (“FEC Mem.”) 

at 6.) CREW contends that this case is not moot because the Commission has not proved that it 

conducted an adequate search or substantiated the FOIA exemptions it has invoked. (Plaintiff’s 

Opposition to Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment 

(“Opp’n”) at 8.) But having brought a complaint alleging that the Commission violated the 

statutory deadlines set out in FOIA, CREW cannot now contend that its complaint alleges that 

the Commission’s search was inadequate or that the Commission is improperly withholding 

particular records. By doing so, CREW improperly attempts to expand its complaint to include 

new allegations of fact and a claim for relief that CREW could not have possibly raised when it 

filed its complaint. 

 CREW’s one-count complaint alleges that the Commission failed to timely produce any 

records in response to CREW’s FOIA request. But a complaint about the timing of an agency 

response to a FOIA request becomes moot when the agency provides the records sought. 

Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993); see also Omari v. Ashcroft, No. 04-104, 2004 

WL 2534229, at *1 (N.D. Tex. Nov. 8, 2004) (“A complaint regarding the timeliness of the 

production of records pursuant to a request under the Freedom of Information Act is rendered 

moot when the records are produced.”). Since the Commission has completed its production of 

responsive records, CREW’s complaint that it has received nothing is now moot. To the extent 

2 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 5 of 15
CREW now claims that the Commission is improperly withholding particular records — i.e., 

those records that it failed to locate because its search was allegedly inadequate, those that the 

Commission claims are exempt, or those that the Commission otherwise failed to produce — 

CREW raises new claims outside its complaint that the Court should not consider.1

 See Voinche, 

999 F.2d at 963 (In a FOIA suit that “challenges only the timeliness of an agency’s response, the 

issue whether the agency’s response was adequate is not apposite.”). In FOIA actions “based on 

[2 U.S.C. §] 552(a)(6)(C), the issue is not whether the requestor should have ultimate access to 

the records. The issue is under what time constraints administrative agencies should be 

compelled to act by the court . . . .” Id. (citation omitted). Because CREW’s complaint did not 

include a challenge to the adequacy of the Commission’s search for responsive documents, 

alleged “facts about the FEC’s search” were not improperly omitted from the Commission’s 

motion to dismiss or absent “conspicuously.” (Opp’n at 9.) They are simply not at issue here. 

CREW has cited no authority to the contrary. Neither Weisberg v. U.S. Dep’t of Justice, 

705 F.2d 1344 (D.C. Cir. 1983), nor Nation Magazine v. U.S. Customs Service, 71 F.3d 885 

(D.C. Cir. 1995), involved FOIA plaintiffs that, like CREW, were challenging the timeliness of 

the agency’s response. In Weisberg, 705 F.2d at 1347, the plaintiff brought suit seeking various 

materials that the FBI had withheld under FOIA exemption 7. Similarly, in Nation Magazine, 71 

F.3d at 887, the plaintiff challenged the Custom Service’s claim that its search had revealed no 

responsive records other than those exempt under FOIA exemption 7. 

These cases do not support CREW because its complaint did not challenge the adequacy 

of the Commission’s search or the withholding of particular records. Nor could it have. At the 

 

1

 There can be no dispute that the case is moot with respect to the unredacted portions of 

the documents CREW has received. See Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 

1986); White v. Lappin, No. 08-1376, 2009 WL 1921337, at *2 (D.D.C. July 2, 2009). 

3 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 6 of 15
time CREW filed its complaint the Commission had not yet produced any responsive records or 

claimed any exemptions. See Compl. ¶ 24 (“Defendant FEC has neither produced any records to 

CREW in response to its FOIA request, nor made any explicit and justified claims of statutory 

exemption.”). In its complaint, CREW thus could not have possibly challenged anything but the 

timing of the Commission’s response. See, e.g., Amaya-Flores v. U.S. Dep’t of Homeland 

Security, No. 06-225, 2006 WL 3098777, at *3 (W.D. Tex. Oct. 30, 2006) (“[B]ecause at the 

time the complaint was filed Defendant had not produced any records, it is impossible that 

Plaintiff could have been complaining about the failure to produce particular records.”).2 

CREW’s claims (Opp’n at 11-12) that there is a live controversy because the Commission failed 

to produce a Vaughn index or detailed declarations explaining the reasons for the claimed 

exemptions are similarly unavailing. See Voinche, 999 F.2d at 963 n.* (upholding denial of 

request for Vaughn index in case brought challenging timing of agency response “[b]ecause the 

purpose of a Vaughn index is to evaluate the adequacy of an agency’s response to a FOIA 

request . . . .”). 

B. The Completeness of the Record Production Is Not Before the Court 

Whether specific records were withheld by the Commission is not at issue in this case 

about timeliness. CREW contends that the FEC has “failed to produce” materials including 

metadata, email attachments, and calendars for two Commissioners. (Opp’n at 10-11.) CREW 

complains that the Commission has withheld portions of various documents pursuant to FOIA 

 

2 Because the adequacy of the Commission’s search is not at issue in this case, any 

difference between the amount of potentially responsive materials reviewed by the Commission 

and the number of records eventually provided to CREW is irrelevant. (See Opp’n at 19-20.) 

The Commission’s FOIA staff routinely review overinclusive batches of potentially responsive 

documents that are then culled to those that are actually responsive. The suggestion that a 

government agency errs by diligently reviewing a large universe of potentially responsive 

materials would create a perverse incentive for the Commission to limit the scope of its review. 

4 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 7 of 15
exemptions 2, 4, 6, and 7(C). CREW also suggests that it may yet ask for the document 

categories it agreed to exclude from the Commission’s initial search. Id. As explained above, 

however, see supra pp. 2-4, CREW’s complaint challenges only the timeliness of the 

Commission’s response, and it does not allege the Commission has withheld specific records 

under FOIA or that the Commission has improperly invoked FOIA exemptions. These claims 

are not properly before the Court. 

Moreover, CREW would have to exhaust its administrative remedies with respect to 

these claims before bringing suit. As the Commission explained (FEC Mem. at 6-7), FOIA 

requesters may not bring suit in federal court until they have actually or constructively exhausted 

administrative remedies. See also infra pp. 5-6. CREW has not, however, exhausted its 

administrative remedies with respect to any records that CREW believes may have been 

improperly withheld. If CREW wishes to raise any such claim, it must first file an administrative 

appeal and give the Commission an opportunity to consider whether these records should in fact 

be produced.3

 

II. CREW FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES 

A. Requiring Exhaustion Would Give the Commission a Chance to Address 

CREW’s Contentions and Conserve Judicial Resources 

Exhaustion gives agencies an opportunity to “correct mistakes made at lower levels and 

thereby obviate[] unnecessary judicial review.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 

61 (D.C. Cir. 1990). As the Commission explained (FEC Mem. at 6-7), requiring potential 

 

3

 CREW criticizes the Commission (Opp’n at 7) for completing its production on the same 

day as its deadline to file a responsive pleading under FOIA. But CREW itself foreclosed any 

opportunity to review the document production for completeness before court briefing by filing 

suit when it did — knowing that the Commission was in the process of responding to its request. 

If CREW believes additional searching is necessary to fulfill its request, it can make that 

argument during an administrative appeal. 

5 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 8 of 15
FOIA litigants to exhaust administrative remedies before bringing suit in federal court also 

allows senior agency officials to develop a factual record and exercise their discretion. Despite 

the Commission’s agreement to comply with the FOIA request, CREW did not permit the 

administrative processes to run their proper course. Administrative appeals would in this case 

have gone to the Commissioners themselves, and they could have had a chance to address 

CREW’s claims of unlawful delay. 

Contrary to CREW’s argument (Opp’n at 18), the Commission’s position here would not 

permit undue delay. If a requester believes that it has been constructively denied responsive 

materials, the top decisionmakers at the Commission should be afforded an opportunity to review 

such a claim and, if necessary, correct it. It is true that an administrative appeal lodged by 

CREW about the completeness of the response would have been premature until the Commission 

considered its response complete, as the Commission’s FOIA officer indicated in a letter to the 

plaintiff. (See Opp’n at 6.) But if a potential litigant believes that its FOIA request has been 

constructively denied because the response is untimely, the Commission should have the 

opportunity to reconsider its response (or lack thereof). See, e.g., Kowalczyk v. U.S. Dep’t of 

Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (referencing an administrative appeal of an agency’s 

“apparent denial-by-silence” of a request). Moreover, any denial of an appeal would provide the 

Court with an administrative decision susceptible to judicial review. 

FOIA does not require that documents be provided to a requester within a specific 

statutory period. Rather, FOIA provides that within 20 days of receipt of a request, an agency 

must determine and provide notification within twenty days whether it will comply with the 

request. See 5 U.S.C. § 552(a)(6)(A)(i) (Agencies shall determine “whether to comply” with a 

request and provide notification.); see also Department of Justice Guide to the Freedom of 

6 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 9 of 15
Information Act 59 (2009), available at http://www.justice.gov/oip/foia_guide09/proceduralrequirements.pdf (“An agency is not necessarily required to release the records within the 

statutory time limit, but it must make its determination within that time and access to releasable 

records should, at a minimum, be granted promptly thereafter.”) (citing 5 U.S.C. 

§ 552(a)(6)(C)(i)). If not, the agency must inform the requester of the reasons for its adverse 

determination and of the requester’s administrative appeal rights. If an agency fails to meet the 

20-day deadline, a requester will be deemed to have constructively exhausted administrative 

remedies and can bring suit, so long as the agency has not responded before the complaint is 

filed. See Oglesby, 920 F.2d at 63 (“[A]n administrative appeal is mandatory if the agency cures 

its failure to respond within the statutory period by responding to the FOIA request before suit is 

filed.”). 

 CREW does not dispute that multiple conversations took place between it and the 

Commission before 20 days had elapsed. CREW instead argues that the Commission failed to 

respond adequately within the 20-day period because it did not complete production and inform 

CREW of its appeal rights regarding any withheld material. This is incorrect. CREW conflates 

(1) what is required of an agency that agrees to comply with a request and is in the process of 

responding with (2) what is required of an agency that makes an adverse determination regarding 

a request. FOIA provides that only in the latter situation must an agency inform the requester of 

its appeal rights. 

To trigger the requirement that a requester actually exhaust administrative remedies 

before bringing suit, all that is required is “a reply from the agency indicating that it is 

responding to [the] request.” Petit-Frere v. U.S. Attorney’s Office for S.D. of Fla., 664 F. Supp. 

2d 69, 71 (D.D.C. 2009) (quoting Oglesby, 920 F.2d at 61). In Petit-Frere, the court held that 

7 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 10 of 15
notifying the requester that his request would be assigned to one of two tracks and take 

approximately nine months to be processed in the order it was received was a sufficient response 

to require the requester to actually exhaust administrative remedies before bringing suit. As the 

Commission explained (FEC Mem. at 9-10), the Commission’s response to CREW more clearly 

indicated that it was in the process of responding to the request than even the agency’s response 

in Petit-Frere: before CREW filed suit the Commission had granted CREW a fee waiver, 

spoken on the phone with CREW at least six times, obtained CREW’s agreement to exclude 

certain categories of documents from the Commission’s initial search, informed CREW that the 

Commission had located thousands of potentially responsive documents that it was in the process 

of reviewing, and had informed CREW that it would produce documents on a rolling basis.4

 

Accordingly, CREW was required to actually exhaust administrative remedies. Because CREW 

did not do so, its complaint should be dismissed. 

B. Petit-Frere Is Consistent with Circuit Precedent

The district court’s opinion in Petit-Frere logically proceeds from the D.C. Circuit’s 

holding in Oglesby and does not deviate from it, as CREW suggests (Opp’n at 17). In Oglesby, 

the court held that an administrative appeal is mandatory if an agency responds, even past the 

statutory period, to a FOIA request before the requester brings suit. 920 F.2d at 63-64. The 

 

4

 CREW claims that it, rather than the Commission, first raised the possibility of a rolling 

production of responsive materials in a phone call placed by the Commission’s FOIA officer to 

CREW’s senior counsel two days after receiving CREW’s FOIA request. Compare Opp’n at 4-5 

with FEC Mem. at 3-4. But whether the Commission or CREW first proposed in this March 9, 

2011, phone call a rolling production is irrelevant. Even in CREW’s version of events, the 

Commission “agreed” to produce on a rolling basis. (Opp’n at 4-5; Rappaport Decl. ¶¶ 3, 4, 6.) 

Although the multiple communications between the Commission and CREW more than 

adequately constitute “a reply from the agency indicating that it [was] responding to [the] 

request,” Petit-Frere, 664 F. Supp. 2d at 71, this March 9 agreement to produce on a rolling basis 

is a sufficient response by itself to require CREW to actually exhaust its administrative remedies 

before bringing suit. 

8 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 11 of 15
court explained that once an agency has responded, “Congress intended the administrative route 

to be pursued to its end.” Congress “did not mean for the court to take over the agency’s 

decisionmaking role in midstream or to interrupt the agency’s appeal process when the agency 

has already invested time, resources, and expertise into the effort of responding.” Id. The 

holding in Petit-Frere furthers these goals. Requiring actual exhaustion once an agency 

indicates that it is in the process of responding to a request gives an administrative appellate 

body (in this instance the Commission itself) an opportunity to address claims of unlawful delay 

or constructive denial prior to being ushered into court. 

CREW erroneously suggests (Opp’n at 14-17) that Petit-Frere conflicts with Oglesby, 

920 F.2d 57, and was therefore wrongly decided. But the agency responses at issue here and in 

Petit-Frere “indicating that [the agency] would process the request,” Petit-Frere, 664 F. Supp. 

2d at 72, differ from the adverse determinations at issue in Oglesby. FOIA specifies that upon 

receiving a request, an agency must determine within 20 days whether to comply with the 

request, at which time the agency shall inform the requester “of such determination and the 

reasons therefor, and of the right of such person to appeal to the head of the agency any adverse 

determination.” 5 U.S.C. § 552(a)(6)(A)(i) (emphasis added). FOIA thus requires agencies to 

determine within 20 days whether they are going to comply with the request, and if not, to 

inform a requester of the reasons for its adverse determination and of the requester’s 

administrative appeal rights. As CREW notes (Opp’n at 16-17), the Oglesby court held that a 

letter from the Department of State informing a requester that the agency had found no 

responsive records did not trigger the actual exhaustion requirement because the letter failed to 

inform the requester of their appeal rights. The court explained that “[t]he agency has a duty to 

notify appellant ‘of the right . . . to appeal to the head of the agency,’ in cases where no records 

9 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 12 of 15
are found in its response as well as those in which specific records are denied.” Oglesby, 920 

F.2d at 67 (quoting 5 U.S.C. § 552(a)(6)(A)(i)). 

 Here, however, the Commission did not indicate to CREW that no records were found or 

that any specific records were to be withheld. Indeed, the Commission made no adverse 

determination as to CREW’s request before CREW filed suit. Accordingly, the Commission was 

not required to inform CREW its administrative appeal rights, and CREW’s argument to the 

contrary (Opp’n at 17) finds no support in Oglesby. 

 Neither Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987), nor the 

Department of Justice’s Guide to the Freedom of Information Act undermine the holding in PetitFrere or otherwise suggest it was wrongly decided. Both stand for the proposition that an 

agency’s mere acknowledgment is not sufficient to require a requester to actually exhaust 

administrative remedies. The DOJ Guide notes that agency responses that merely acknowledge 

receipt of a FOIA request are not “determinations” under the FOIA that deny records or grant 

appeal rights. Department of Justice Guide to the Freedom of Information Act 743 (2009), 

available at http://www.justice.gov/oip/foia_guide09/litigation-considerations.pdf. Similarly, in 

Spannaus, the court found that a response from the Department of Justice that merely 

acknowledged the request and informed appellant that it would be forwarded to the FBI was not 

sufficient to require the requester to actually exhaust administrative remedies. 824 F.2d at 59 

and n.9. By comparison, however, the government in Petit-Frere clearly indicated more. By 

informing the requester that providing responsive materials would take approximately nine 

months, the government in Petit-Frere indicated that it had examined the scope of the request as 

well as the available resources at its disposal and was therefore in the process of responding to 

10 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 13 of 15
the request.5

 As we have previously explained (FEC Mem. at 9-10), here the Commission 

provided even more information to CREW than the government had shared in Petit-Frere. 

CONCLUSION 

In sum, the Commission timely agreed to comply with CREW’s FOIA request and has 

since provided responsive records. Therefore, CREW’s complaint — which claimed only that 

the Commission’s response was untimely — is not only moot, but also prematurely before the 

Court as a result of CREW’s failure to exhaust administrative remedies. CREW should not be 

permitted to expand its complaint and bypass FOIA’s exhaustion requirements in the context of 

opposing the Commission’s pending motion to dismiss. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

 

5 The court in Petit-Frere appears to have considered the nine-month timetable provided 

by the government when it determined that the government was indeed responding to the request 

and had thus triggered an actual exhaustion requirement. The court explained, however, that all 

that was required was “a reply from the agency indicating that it is responding to [the] request,” 

and nowhere held that an agency must estimate a date of delivery in order to “indicat[e] that it 

would process the request.” 664 F. Supp. 2d at 71, 72. 

11 

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 14 of 15
12 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

July 18, 2011 (202) 694-1650

Case 1:11-cv-00951-CKK Document 7 Filed 07/18/11 Page 15 of 15