United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2012 Decided April 2, 2013

No. 12-5004

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00951)

Anne L. Weismann argued the cause for appellant. With 

her on the briefs was Melanie Sloan. 

Julie A. Murray and Adina H. Rosenbaum were on the 

brief for amici curiae Public Citizen, et al. in support of 

appellant.

Steve Hajjar, Attorney, Federal Election Commission, 

argued the cause for appellee. With him on the brief were 

Anthony Herman, General Counsel, and David Kolker, 

Associate General Counsel. Sarang V. Damle and Michael S. 

Raab, Attorneys, U.S. Department of Justice, entered 

appearances.

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Before: GRIFFITH and KAVANAUGH, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: This case presents an

important question of procedure under the Freedom of 

Information Act: When must a FOIA requester exhaust 

administrative appeal remedies before suing in federal district 

court to challenge an agency’s failure to produce requested 

documents? 

As a general matter, a FOIA requester must exhaust 

administrative appeal remedies before seeking judicial 

redress. But if an agency does not adhere to certain statutory 

timelines in responding to a FOIA request, the requester is 

deemed by statute to have fulfilled the exhaustion 

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

To trigger the exhaustion requirement, an agency must 

make and communicate its “determination” whether to 

comply with a FOIA request – and communicate “the reasons 

therefor” – within 20 working days of receiving the request, 

or within 30 working days in “unusual circumstances.” Id.

§ 552(a)(6)(A)(i), (a)(6)(B)(i). If the agency has made and 

communicated its “determination” in a timely manner, the 

requester is required to administratively appeal that 

“determination” before bringing suit. But if the agency has 

not issued its “determination” within the required time period, 

the requester may bring suit directly in federal district court

without exhausting administrative appeal remedies.

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The exhaustion issue in this case boils down to what kind 

of agency response qualifies as a “determination.” In 

particular, when an agency responds to a request within 20 

working days but merely tells the requester that the agency

will produce non-exempt responsive documents and claim 

exemptions in the future, is that a “determination” within the 

meaning of the statute, as defendant FEC argues? Or must the 

agency, even if it need not produce the documents within 20 

working days, at a minimum indicate the scope of the 

documents it will produce and the exemptions it will claim, as 

plaintiff CREW argues?

Based on the language and structure of FOIA, we agree 

with CREW. In order to make a “determination” within the 

statutory time periods and thereby trigger the administrative 

exhaustion requirement, the agency need not actually produce 

the documents within the relevant time period. But the 

agency must at least indicate within the relevant time period

the scope of the documents it will produce and the exemptions 

it will claim with respect to any withheld documents.

In this case, the FEC did not make such a

“determination” within the statutory time period. As a result, 

CREW was not required to exhaust administrative appeal 

remedies before filing its FOIA suit. We reverse the contrary 

judgment of the District Court and remand for further 

proceedings.

I

Citizens for Responsibility and Ethics in Washington –

known as CREW – is a nonprofit organization that, among 

other things, advocates for the right of citizens to know about 

the activities of government officials. CREW pursues that 

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objective through the acquisition and dissemination of 

information about public officials and federal agencies.

On March 7, 2011, CREW submitted a FOIA request to 

the Federal Election Commission seeking several categories

of records, including certain correspondence, calendars, 

agendas, and schedules of the Commissioners.

On March 8, the day after the FOIA request was 

received, the FEC emailed CREW to acknowledge receipt of 

the request. In several conversations that took place over the 

next few weeks, CREW agreed to exclude certain categories 

of documents from the FEC’s initial search for records. The 

FEC in turn agreed to provide non-exempt responsive 

documents (and thus also claim exemptions over any withheld

documents) on a rolling basis in the future. But by May 23, 

more than two months later, CREW had not received any 

documents, nor had it received a more specific statement 

about what documents the FEC would produce and what 

exemptions the FEC would claim. CREW therefore filed suit 

in District Court, alleging that the FEC had not responded to 

the FOIA request in a timely fashion and had wrongfully 

withheld records under FOIA.

As of May 23, the FEC had begun – but had not 

completed – gathering and reviewing potentially responsive 

records. Subsequently, on June 15, 21, and 23, the FEC 

provided CREW with a total of 835 pages of documents. The 

agency’s June 15th production was accompanied by a letter 

stating in part:

The FEC is continuing to process your request and has 

produced with this letter an initial round of responsive 

records. You will continue to receive additional 

responsive records on a rolling basis. Upon the agency’s 

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final production of records, you will receive a decision 

letter that will include information regarding your appeal 

rights. Today’s letter does not constitute a final agency 

decision, and thus is not subject to appeal.

CREW Opposition to Motion to Dismiss at Exhibit B, CREW

v. FEC, No. 11cv951 (D.D.C. July 7, 2011). The FEC sent a 

similar letter with its June 21st production to CREW.

Along with its final June 23rd production, the FEC 

informed CREW that the FEC had withheld some documents 

and had redacted others in accordance with FOIA Exemptions 

4, 6, and 7(C). See 5 U.S.C. § 552(b)(4), (b)(6), (b)(7)(C). 

For the first time, the June 23rd letter also advised CREW of

its right to administratively appeal any adverse FOIA 

determination.

On June 23 – the same day that it produced its final round 

of responsive documents – the FEC moved in the District 

Court to dismiss CREW’s complaint, or, in the alternative, for 

summary judgment. First, the FEC contended that CREW’s 

challenge to the agency’s delay in responding to a FOIA 

request was moot given that the agency had now responded. 

Second, the FEC argued that CREW had failed to exhaust 

administrative appeal remedies before bringing suit.

The District Court held that the case was not moot. But 

the District Court granted the FEC’s motion for summary 

judgment based on CREW’s failure to exhaust administrative 

appeal remedies. See CREW v. FEC, 839 F. Supp. 2d 17, 29 

(D.D.C. 2011). We review the District Court’s grant of 

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summary judgment de novo. See Blackwell v. FBI, 646 F.3d 

37, 39 (D.C. Cir. 2011).1

II

In the District Court, the FEC argued that its production 

of responsive documents had rendered CREW’s suit moot. 

Although the parties do not raise the mootness issue on 

appeal, the Court must independently consider its own 

jurisdiction. See Mine Reclamation Corp. v. FERC, 30 F.3d 

1519, 1522 (D.C. Cir. 1994). We agree with the District 

Court that the case is not moot. CREW’s complaint not only

asserted that the FEC failed to respond to CREW’s request in 

a timely fashion, but also raised a substantive challenge to the 

agency’s withholding of responsive, non-exempt records. 

Even now, CREW continues to seek relief from the FEC’s 

alleged failure to produce all records responsive to CREW’s

request. Therefore, the case is not moot.

III

The question presented concerns when a FOIA requester 

must exhaust administrative appeal remedies before filing 

suit.

 1 The FEC is an independent agency and was represented in 

the District Court and in this Court by FEC attorneys. See 

generally Humphrey’s Executor v. United States, 295 U.S. 602 

(1935). Because of the potential importance of this case to the 

Executive Branch as a whole, this Court invited and received 

supplemental briefing from the Department of Justice, which 

represents and provides legal advice to the President and the 

executive agencies. The Department of Justice generally agreed 

with the legal position advanced by the FEC.

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A FOIA requester is generally required to exhaust 

administrative appeal remedies before seeking judicial 

redress. See Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. 

Cir. 2003); Oglesby v. Department of the Army, 920 F.2d 57, 

61-62 (D.C. Cir. 1990). But if an agency fails to make and 

communicate its “determination” whether to comply with a 

FOIA request within certain statutory timelines, the requester 

“shall be deemed to have exhausted his administrative 

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

The statutory timeline relevant to this case specifies that,

once an agency receives a proper FOIA request, the agency 

shall:

determine within 20 days (excepting Saturdays, Sundays, 

and legal public holidays) after the receipt of any such 

request whether to comply with such request and shall 

immediately notify the person making such request 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.

Id. § 552(a)(6)(A)(i).

The 20-working-day timeline is not absolute. In “unusual 

circumstances,” an agency may extend the time limit to up to 

30 working days by written notice to the requester. Id.

§ 552(a)(6)(B)(i). Such unusual circumstances include:

(I) the need to search for and collect the requested 

records from field facilities or other establishments that 

are separate from the office processing the request; 

(II) the need to search for, collect, and appropriately 

examine a voluminous amount of separate and distinct 

records which are demanded in a single request; or 

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(III) the need for consultation, which shall be 

conducted with all practicable speed, with another agency 

having a substantial interest in the determination of the 

request or among two or more components of the agency 

having substantial subject-matter interest therein.

Id. § 552(a)(6)(B)(iii).

If the agency does not make a “determination” within the 

relevant statutory time period, the requester may file suit 

without exhausting administrative appeal remedies. Once in 

court, however, the agency may further extend its response 

time if it demonstrates “exceptional circumstances” to the 

court.

2

 (Note that “exceptional circumstances” is different 

from “unusual circumstances.”) If exceptional circumstances 

exist, then so long as “the agency is exercising due diligence 

in responding to the request, the court may retain jurisdiction 

and allow the agency additional time to complete its review of 

the records.” Id. § 552(a)(6)(C)(i); see also Open America v. 

Watergate Special Prosecution Force, 547 F.2d 605, 616 

(D.C. Cir. 1976).

 2 Although the statute does not define “exceptional 

circumstances,” it provides some directional signals: “[T]he term 

‘exceptional circumstances’ does not include a delay that results 

from a predictable agency workload of requests under this section, 

unless the agency demonstrates reasonable progress in reducing its 

backlog of pending requests. . . . Refusal by a person to reasonably 

modify the scope of a request or arrange an alternative time frame 

for processing a request (or a modified request) . . . after being 

given an opportunity to do so by the agency to whom the person 

made the request shall be considered as a factor in determining 

whether exceptional circumstances exist . . . .” 5 U.S.C. 

§ 552(a)(6)(C)(ii)-(iii).

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In short, a requester must exhaust administrative appeal 

remedies if the agency made and communicated its

“determination” within 20 working days (or 30 working days 

in “unusual circumstances”).3

But what constitutes a “determination” so as to trigger the 

exhaustion requirement? That is the critical question here. 

CREW argues that, in order to make a “determination” within 

the meaning of Section 552(a)(6)(A)(i), an agency need not 

go so far as to produce the responsive documents but it must 

at least inform the requester of the scope of the documents it 

will produce and the exemptions it will claim with respect to 

any withheld documents. By contrast, the FEC contends that,

in order to make a “determination,” an agency needs simply

to express a future intention to produce non-exempt 

documents and claim exemptions. That question has never 

been resolved in this Court.4

 3 Of course, the duties that FOIA imposes on agencies –

including the requirement that an agency make a “determination” 

within 20 working days, or 30 working days in “unusual 

circumstances” – apply only once an agency has received a proper 

FOIA request. A proper request must “reasonably describe[]” the 

records sought and must comply with the agency’s published 

procedures, including the agency’s schedule of fees. 5 U.S.C. 

§ 552(a)(3)(A). The agency’s threshold decision that a proper 

request has been filed is obviously not the agency’s 

“determination” whether to comply, and neither the FEC nor the 

Department of Justice argues otherwise.

4 Despite the significant amount of FOIA litigation in this 

Court, we have not had occasion to previously decide this important

procedural question, in part because individual FOIA requesters 

apparently have not thought it worth the candle to press this point, 

rather than to work with the agency in an effort to obtain the 

requested documents. In Spannaus v. DOJ, the Court stated that an 

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We agree with CREW’s reading of the statute. The 

statute requires that, within the relevant time period, an 

agency must determine whether to comply with a request –

that is, whether a requester will receive all the documents the 

requester seeks. It is not enough that, within the relevant time 

period, the agency simply decide to later decide. Therefore, 

within the relevant time period, the agency must at least 

inform the requester of the scope of the documents that the 

agency will produce, as well as the scope of the documents 

that the agency plans to withhold under any FOIA 

exemptions.

Four aspects of the statute lead us to that interpretation, 

and help demonstrate that the FEC’s contrary interpretation is 

incorrect.

First, the statute requires that an agency, upon making a 

“determination” whether to comply with a FOIA request, 

immediately “notify the person making such request of such 

determination and the reasons therefor.” 5 U.S.C. 

§ 552(a)(6)(A)(i) (emphasis added). The statutory

 

agency failed to make a “determination” under Section 

552(a)(6)(A)(i) when it merely acknowledged a FOIA request and 

indicated that the request would be forwarded to another office. 

824 F.2d 52, 59 n.9 (D.C. Cir. 1987). But that case did not analyze 

or describe the contours of what constituted a “determination.” 

Similarly, in Oglesby v. Department of the Army, the Court 

specifically declined to decide whether a response that the agency 

was processing the request was a “determination” for purposes of 

Section 552(a)(6)(A)(i). See 920 F.2d 57, 69 (D.C. Cir. 1990). The 

Court also declined to decide whether a response that the agency 

would go forward with the search absent any problems or any need 

for additional information was a “determination.” Id.

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requirement that the agency provide “the reasons” for its 

“determination” strongly suggests that the reasons are 

particularized to the “determination” – most obviously, the 

specific exemptions that may apply to certain withheld 

records. The statutory requirement would not make a lot of

sense if, as the FEC argues, the agency were merely required 

to state within 20 working days its future intent to eventually

produce documents and claim exemptions. After all, how 

could the agency articulate reasons for non-compliance when 

it had not yet decided whether to comply (that is, whether to 

produce all of the requested documents)?

Second, the statute requires that the agency immediately

notify the requester of the right “to appeal to the head of the 

agency any adverse determination.” Id. The requirement that 

the agency notify the requester about administrative appeal 

rights further indicates that the “determination” must be 

substantive, not just a statement of a future intent to produce 

non-exempt responsive documents. Otherwise, this right of 

administrative appeal would make little sense because there 

would be nothing to appeal at the time the agency makes its 

supposed “determination” in response to a properly filed 

FOIA request.

This critical point both highlights and unravels the 

maneuver that the FEC (backed by the Department of Justice) 

is attempting here. Under the FEC’s theory, an agency could 

respond to a request within 20 working days in terms not 

susceptible to immediate administrative appeal – by simply 

stating, in essence, that it will produce documents and claim 

exemptions over withheld documents in the future. Then, the 

agency could process the request at its leisure, free from any

timelines. All the while, the agency’s actions would remain 

immune from suit because the requester would not yet have 

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been able to appeal and exhaust administrative appeal 

remedies. Therein lies the Catch-22 that the agency seeks to 

jam into FOIA: A requester cannot appeal within the agency 

because the agency has not provided the necessary 

information. Yet the requester cannot go to court because the 

requester has not appealed within the agency. Although the 

agency may desire to keep FOIA requests bottled up in limbo 

for months or years on end, the statute simply does not 

countenance such a system, as we read the statutory text.

This case illustrates how the FEC’s legal position does 

not square with the statute. The FEC now claims that it made 

a “determination” in March 2011, within 20 working days of 

CREW’s FOIA request. Yet the FEC did not inform CREW 

of its appeal rights until June 23, more than 75 working days 

after the FOIA request. The FEC was right that CREW did 

not have any decision to appeal until the FEC’s June 23rd

letter stated that the agency had withheld some documents 

under multiple FOIA exemptions. But that fact also 

necessarily shows that the FEC had not made a 

“determination” in March, given that the statute indicates that

a “determination” must be subject to immediate appeal. By

arguing that it made a “determination” in March and 

simultaneously saying that nothing could be administratively 

appealed until June, the FEC’s position on CREW’s request

amply demonstrates the impermissible Catch-22 it seeks to 

enshrine in the law.5

 5 In order to facilitate an administrative appeal, an agency must 

indicate the scope of the documents it intends to produce and the 

exemptions it will claim. An agency is not required to produce a 

Vaughn index – which district courts typically rely on in 

adjudicating summary judgment motions in FOIA cases. See, e.g., 

DEPARTMENT OF JUSTICE, GUIDE TO THE FREEDOM OF 

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Third, the statute creates an “unusual circumstances”

safety valve that permits an agency to extend the 20-workingday period for response by up to 10 additional working days. 

“Unusual circumstances” are defined to encompass only “the 

need to search for and collect the requested records” from 

separate locations; “the need to search for, collect, and 

appropriately examine a voluminous amount” of documents; 

and “the need for consultation” with other agencies. Id.

§ 552(a)(6)(B)(iii). The statutory list of circumstances that 

permit an agency to extend the 20-working-day timeline to 

make a “determination,” including collecting and examining 

numerous or distant documents, clearly contemplates that the 

agency must actually gather the responsive documents and 

determine which it will produce and which it will withhold. 

The agency cannot make the requisite “determination” by 

 

INFORMATION ACT 789 (2009 ed.) (It “is well settled that a 

requester is not entitled to receive [a Vaughn index] during the 

administrative process.”); NRDC, Inc. v. NRC, 216 F.3d 1180, 1190 

(D.C. Cir. 2000) (rule that agency must provide a Vaughn index in 

FOIA litigation “is a rule that governs litigation in court and not 

proceedings before the agency”); Bangoura v. Department of the 

Army, 607 F. Supp. 2d 134, 143 n.8 (D.D.C. 2009) (“Defendant 

was under no obligation to provide Plaintiff with a Vaughn Index 

before the filing of this action.”) (internal quotation marks and 

alteration omitted); Schwarz v. Department of Treasury, 131 F. 

Supp. 2d 142, 147 (D.D.C. 2000) (“[T]here is no requirement that 

an agency provide a ‘search certificate’ or a ‘Vaughn’ index on an 

initial request for documents. The requirement for detailed 

declarations and Vaughn indices is imposed in connection with a 

motion for summary judgment filed by a defendant in a civil action 

pending in court.”) (footnote omitted); cf. Mead Data Central, Inc. 

v. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) 

(although “the objective of the Vaughn requirements . . . is equally 

applicable to proceedings within the agency,” no error where those 

requirements were satisfied in district court proceedings). 

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simply stating its future intent to produce some non-exempt 

documents.

Moreover, there would be no need for the unusual 

circumstances safety valve if, as the FEC argues, the usual 20-

working-day timeline merely required an agency to make a 

general promise to produce non-exempt documents and claim 

exemptions in the future. An agency could always provide 

that kind of promise within 20 working days of receiving a 

FOIA request. The number of documents to be examined and 

the difficulty of gathering those documents, for example, have 

no bearing on the agency’s ability to provide such a formulaic 

response to requesters within 20 working days. Thus, the 

FEC’s reading of FOIA would render the unusual 

circumstances safety valve a worthless addendum to the 

statute. Such a result strongly suggests that the agency’s 

interpretation is impermissible. See Williams v. Taylor, 529 

U.S. 362, 404 (2000) (“It is . . . a cardinal principle of 

statutory construction that we must give effect, if possible, to 

every clause and word of a statute.”) (internal quotation marks 

omitted).

Put simply, the unusual circumstances provision to 

extend the time for making a “determination” makes sense 

only if the statute contemplates that responsive documents 

must be collected and examined, and decisions made about 

which to produce, in order for the agency to make a 

“determination.”

Fourth, the statute provides that, once in court, an agency 

may further extend its response time by means of the

“exceptional circumstances” safety valve. That provision 

says that if exceptional circumstances exist and an agency “is 

exercising due diligence in responding to the request,” a court 

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may grant the agency “additional time to complete its review

of the records.” 5 U.S.C. § 552(a)(6)(C)(i) (emphasis added). 

Like the unusual circumstances provision, the exceptional 

circumstances provision presumes that an agency operating 

outside the 20-working-day window needs more time to finish 

gathering and reviewing documents, and more time to decide

what to produce and to withhold. The agency would not need 

more time merely to state a preliminary intention to produce 

whatever non-exempt records are eventually found. Again, 

the FEC’s theory of the statute would negate any need for the 

exceptional circumstances provision. The fact that the FEC’s 

interpretation renders the exceptional circumstances provision 

unnecessary further confirms that Congress created a different 

statute from the one the FEC describes.

All of those statutory provisions together reinforce the 

conclusion that a “determination” under Section 

552(a)(6)(A)(i) must be more than just an initial statement 

that the agency will generally comply with a FOIA request 

and will produce non-exempt documents and claim 

exemptions in the future. Rather, in order to make a 

“determination” and thereby trigger the administrative 

exhaustion requirement, the agency must at least: (i) gather 

and review the documents; (ii) determine and communicate

the scope of the documents it intends to produce and 

withhold, and the reasons for withholding any documents; and 

(iii) inform the requester that it can appeal whatever portion 

of the “determination” is adverse.

6

 6 Our opinion today does not affect an agency’s ability to 

issue, where appropriate, a “Glomar” response to a FOIA request. 

Because of security or privacy concerns, a “Glomar” response 

refuses to confirm or deny that the requested records exist. See 

Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).

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To be clear, a “determination” does not require actual 

production of the records to the requester at the exact same 

time that the “determination” is communicated to the 

requester. Under the statutory scheme, a distinction exists 

between a “determination” and subsequent production. See 

Spannaus v. DOJ, 824 F.2d 52, 59 n.7 (D.C. Cir. 1987). As to 

actual production, FOIA requires that the agency make the 

records “promptly available,” which depending on the 

circumstances typically would mean within days or a few 

weeks of a “determination,” not months or years. 5 U.S.C. 

§ 552(a)(3)(A), (a)(6)(C)(i). So, within 20 working days (or 

30 working days in “unusual circumstances”), an agency must 

process a FOIA request and make a “determination.” At that 

point, the agency may still need some additional time to 

physically redact, duplicate, or assemble for production the 

documents that it has already gathered and decided to 

produce. The agency must do so and then produce the records 

“promptly.” Our reading of “determination” thus neatly 

complements the requirement that documents be made 

“promptly available.”

In short, unlike the FEC’s theory, our reading of 

“determination” sensibly harmonizes the default 20-workingday timeline, the unusual circumstances safety valve, the 

exceptional circumstances safety valve, and the prompt 

production requirement. Together, those provisions create a 

comprehensive scheme that encourages prompt requestprocessing and agency accountability. To summarize: An 

agency usually has 20 working days to make a 

“determination” with adequate specificity, such that any 

withholding can be appealed administratively. 5 U.S.C. 

§ 552(a)(6)(A)(i). An agency can extend that 20-working-day 

timeline to 30 working days if unusual circumstances delay 

the agency’s ability to search for, collect, examine, and 

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consult about the responsive documents. Id. § 552(a)(6)(B). 

Beyond those 30 working days, an agency may still need 

more time to respond to a particularly burdensome request. If 

so, the administrative exhaustion requirement will not apply. 

But in such exceptional circumstances, the agency may 

continue to process the request, and the court (if suit has been 

filed) will supervise the agency’s ongoing progress, ensuring 

that the agency continues to exercise due diligence in 

processing the request. Id. § 552(a)(6)(C).7 If the agency 

does not adhere to FOIA’s explicit timelines, the “penalty” is 

that the agency cannot rely on the administrative exhaustion 

requirement to keep cases from getting into court. This 

scheme provides an incentive for agencies to move quickly 

but recognizes that agencies may not always be able to adhere 

to the timelines that trigger the exhaustion requirement.8

To all of this, the FEC’s overarching retort is that it 

would be “a practical impossibility for agencies to process all 

[FOIA] requests completely within twenty days.” FEC Br. 

34. We agree entirely with the FEC on this point. We are 

intimately familiar with the difficulty that FOIA requests pose 

for executive and independent agencies. But contrary to the 

FEC’s suggestion, our reading of the statute recognizes and 

 7 A district court may of course consider FOIA cases in the 

ordinary course. There is no statutory mandate for district courts to 

prioritize FOIA cases ahead of other civil cases on their dockets.

8 In fact, several statutory provisions acknowledge that some 

requests may require significant processing time to search for, 

collect, examine, and consult about documents before a 

“determination” can be made. For example, FOIA provides that 

agencies may establish multitrack procedures based on the amount 

of work or time a request entails, and FOIA requires that agencies 

establish a tracking system for requests that will take longer than 10 

days to process. See 5 U.S.C. § 552(a)(6)(D), (a)(7).

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accommodates that reality. As our opinion today emphasizes, 

the 20-working-day period (actually 30 working days with the 

unusual circumstances provision) is the relevant timeline that 

the agency must adhere to if it wants to trigger the exhaustion 

requirement before suit can be filed. The unusual 

circumstances and exceptional circumstances provisions 

allow agencies to deal with broad, time-consuming requests 

(or justifiable agency backlogs) and to take longer than 20 

working days to do so. To reiterate, if the agency does not 

adhere to FOIA’s explicit timelines, the “penalty” is that the 

agency cannot rely on the administrative exhaustion 

requirement to keep cases from getting into court.

It is true that the statute does not allow agencies to keep 

FOIA requests bottled up for months or years on end while 

avoiding any judicial oversight. But Congress made that

decision. If the Executive Branch does not like it or disagrees 

with Congress’s judgment, it may so inform Congress and 

seek new legislation. See Milner v. Department of the Navy, 

131 S. Ct. 1259, 1271 (2011) (“All we hold today is that 

Congress has not enacted the FOIA exemption the 

Government desires. We leave to Congress, as is appropriate, 

the question whether it should do so.”).

* * *

Because the FEC did not make and communicate a

“determination” within the meaning of 5 U.S.C. 

§ 552(a)(6)(A)(i) within 20 working days of receiving 

CREW’s FOIA request, CREW is deemed to have exhausted 

its administrative appeal remedies under 

Section 552(a)(6)(C)(i), and its suit may proceed. We reverse 

USCA Case #12-5004 Document #1428419 Filed: 04/02/2013 Page 18 of 19
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the District Court’s grant of summary judgment to the FEC, 

and we remand for further proceedings.

So ordered.

USCA Case #12-5004 Document #1428419 Filed: 04/02/2013 Page 19 of 19