[ORAL ARGUMENT HELD OCTOBER 16, 2012]

No. 12-5004

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SUPPLEMENTAL BRIEF FOR APPELLEE

 

 

 

STUART F. DELERY

Principal Deputy Assistant 

Attorney General 

RONALD C. MACHEN JR.

United States Attorney 

MICHAEL S. RAAB

SARANG V. DAMLE

(202) 514-5735 

Attorneys, Appellate Staff 

Civil Division, Room 7217 

U.S. Department of Justice 

950 Pennsylvania Ave., N.W. 

Washington, D.C. 20530 

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 1 of 25
TABLE OF CONTENTS

Page

GLOSSARY

I. Because the FEC made clear that it intended to release records in

response to plaintiff’s FOIA request, plaintiff was required to exhaust

its administrative remedies before filing suit........................................................... 1

A. FOIA requires an agency to “determine . . . whether to comply”

with a request within 20 days, and thereafter obligates the agency

to actually release records “promptly.”......................................................... 1

B. The FEC “determine[d] . . . . whether to comply” with plaintiff’s

request within the statutory time limit, and plaintiff was thus

required to exhaust its administrative remedies......................................... 10

II. Plaintiff’s contrary position is flawed and would increase FOIA litigation

that could otherwise be resolved as part of the ordinary administrative

appeals process.......................................................................................................... 11

CONCLUSION ................................................................................................................... 17

CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(A)

CERTIFICATE OF SERVICE

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_________________

* Authorities chiefly relied upon are marked with an asterisk.

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TABLE OF AUTHORITIES

Cases: Page

Dettmann v. Department of Justice,

802 F.2d 1472 (D.C. Cir. 1986)......................................................................................... 3

Hidalgo v. FBI,

344 F.3d 1256 (D.C. Cir. 2003)......................................................................................... 1

Lamie v. United States,

540 U.S. 526 (2004) .......................................................................................................... 14

Oglesby v. U.S. Dep’t of Army,

920 F.2d 57 (D.C. Cir. 1990).................................................................................3, 12, 16

*Spannaus v. U.S. Dept. of Justice,

824 F.2d 52 (D.C. Cir. 1987)............................................................................................. 3

U.S. Dep’t of Justice v. Reporters Committee for Freedom of Press,

489 U.S. 749 (1989) .......................................................................................................... 15

U.S. Dept. of Justice v. Landano,

508 U.S. 165 (1993) .......................................................................................................... 15

U.S. ex rel. Totten v. Bombardier Corp.,

380 F.3d 488 (D.C. Cir. 2004)......................................................................................... 14

United States. v. Jicarilla Apache Nation,

131 S. Ct. 2313 (2011).................................................................................................... 8, 9

Statutes:

5 U.S.C. § 552(a)(6)(A)(i).............................................................................................1, 2, 11

5 U.S.C. § 552(a)(6)(B)(iii)(I)-(III) ...................................................................................... 13

5 U.S.C. § 552(a)(6)(C)....................................................................................................... 1, 2

5 U.S.C. § 552(a)(6)(C)(i) ...........................................................................................2, 11, 13

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5 U.S.C. § 552(a)(6)(E)........................................................................................................... 8

5 U.S.C. § 552(a)(6)(E)(i)(I)................................................................................................... 8

5 U.S.C. § 552(a)(6)(E)(ii) ...................................................................................................... 8

5 U.S.C. § 552(a)(6)(E)(iii)..................................................................................................... 8

5 U.S.C. § 552(a)(6)(E)(v).................................................................................................. 8, 9

Pub. L. No. 93-502, 88 Stat. 1561 (1974)............................................................................ 4

Pub. L. No. 104-231, 110 Stat. 3048 (1996).................................................................... 4, 8

Legislative Materials:

118 Cong. Rec. 9949 (1972) .................................................................................................. 4

Federal Information Policy Oversight: Hearing Before the Subcomm. on Gov’t Mgmt., Info.,

and Tech. of the H. Comm. on Gov’t Reform and Oversight, 104th Cong. (1996).............. 14

* House Committee on Government Operations and Senate Committee on the 

Judiciary, Freedom of Information Act and Amendments of 1974 (P.L. 93-502):

Source Book: Legislative History, Texts, and Other Documents, 94th Cong., 1st Sess.,

(Joint Comm. Print 1975)............................................................................................ 4, 5

H.R. 12471, 93rd Cong., 2d Sess. (1974)............................................................................. 2

H.R. Rep. No. 104-156, (1995)............................................................................................. 5

Information Policy in the 21st Century: A Review of the Freedom of Information Act:

Hearing Before the Subcomm. on Gov’t Mgmt., Fin., & Accountability of the Comm.

on Gov’t Reform, 109th Cong. (May 11, 2005)......................................................... 2, 3, 5

S. Rep. No. 93-854 (1974)..................................................................................................... 4

S. Rep. No. 104-272 (1996).......................................................................................9, 14, 15

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Other Authorities:

*Attorney General, Memorandum: Preliminary Guidance Concerning the 1974 Freedom

of Information Act Amendments, Dec. 11, 1974.............................................................. 5, 7

Attorney General’s Memorandum on the 1974 Amendments to the Freedom

of Information Act (Feb. 1975)...................................................................................... 5

Brian A. Garner, GARNER’S MODERN AMERICAN USAGE (3d ed. 2009)........................ 6

Department of Justice, Guide to the Freedom of Information Act (2009).......................... 8, 10

THE RANDOM HOUSE COLLEGE DICTIONARY (rev. ed. 1980) ........................................ 6

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GLOSSARY

eFOIA Electronic Freedom of Information Act 

Amendments of 1996, Pub. L. No. 104-231, 

110 Stat. 3048. 

FEC Federal Election Commission

FOIA Freedom of Information Act

GAO United States Government Accountability 

Office

Source Book House Committee on Government 

Operations and Senate Committee on the 

Judiciary, Freedom of Information Act and 

Amendments of 1974 (P.L. 93-502): Source Book: 

Legislative History, Texts, and Other Documents, 

94th Cong., 1st Sess.(Joint Comm. Print 

1975)1

 1 Available at http://www.loc.gov/rr/frd/Military_Law/FOIA-1974.html.

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Pursuant to the Court’s order of October 16, 2012, the Department of Justice 

respectfully submits this supplemental brief expressing the government’s views in this 

Freedom of Information Act (FOIA) case.

2

 As explained below, we concur in the 

legal arguments raised by the Federal Election Commission. 

I. Because the FEC made clear that it intended to release records in

response to plaintiff’s FOIA request, plaintiff was required to exhaust its 

administrative remedies before filing suit. 

A. FOIA requires an agency to “determine . . . whether to comply” 

with a request within 20 days, and thereafter obligates the agency 

to actually release records “promptly.” 

1. Ordinarily, a FOIA requester must exhaust its administrative remedies 

before bringing suit. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). FOIA, 

however, provides a limited exception to this exhaustion requirement where the 

agency fails to comply with statutory time limits. See 5 U.S.C. § 552(a)(6)(C). One 

such time limit requires an agency, upon receiving a request for records, to “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.” 5 U.S.C. 

§ 552(a)(6)(A)(i).

 2 We have styled this filing as a supplemental brief for the Federal Election 

Commission because the FEC has been litigating this matter pursuant to a casespecific delegation of authority from the Department of Justice.

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2

As the text indicates, section 552(a)(6)(A)(i) only obligates the agency to 

provide, within the statutory time limit, an up-or-down determination that it will 

comply with the FOIA request by providing at least some responsive records. As 

petitioner recognizes, section 552(a)(6)(A)(i) does not require the agency to “comply” 

with the request—i.e., actually produce all responsive records—within twenty days. 

See Reply Br. 9 n.7. An agency’s responsibility to actually produce responsive records 

is addressed by a separate provision: “Upon any determination by an agency to 

comply with a request for records, the records shall be made promptly available to 

such person making such request.” 5 U.S.C. § 552(a)(6)(C)(i).3

 An agency’s failure to 

fulfill that prompt production requirement does not excuse the requester from 

exhausting its administrative remedies. 

Thus, as an official from the Government Accountability Office (GAO)—a 

component of the legislative branch—explained in 2005 testimony before Congress, 

“[t]he 20-day requirement is actually not a requirement to supply the records, as I 

understand it. It is really a requirement to get back to the requester and say we are 

going to comply with your request or not.” Information Policy in the 21st Century: A 

 3

 While this sentence is located in a separate subparagraph of 5 U.S.C. 

§ 552(a)(6)—subparagraph (C)—it obviously refers back to the “determin[ation] . . . 

to comply” made pursuant to subparagraph (A). Indeed, these complementary 

provisions were located in close proximity to each other in the version of the bill 

passed by the House of Representatives in 1974. See H.R. 12471, 93rd Cong., 2d Sess. 

§ 1(c) (1974) (as passed by House of Representatives, Mar. 14, 1974). Although the 

Senate added additional language to the bill before its passage, these provisions

remained, and are part of the statute today. See 5 U.S.C. § 552(a)(6)(A)(i), (C)(i).

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Review of the Freedom of Information Act: Hearing Before the Subcomm. on Gov’t Mgmt., Fin., & 

Accountability of the Comm. on Gov’t Reform, 109th Cong. 119 (May 11, 2005) (testimony 

of Linda D. Koontz, Director, Information Policy Issues, U.S. GAO).

The distinction between the requirement to provide an initial determination 

whether to provide records, which is subject to the 20-day time limit in section 

552(a)(6)(A)(i), and the actual production of responsive records, which is not subject 

to that time limit, is reinforced by this Court’s decision in Spannaus v. U.S. Dept. of 

Justice, 824 F.2d 52 (D.C. Cir. 1987). In that case, the Court, in finding that the FBI 

had failed to comply with the then-10-day time limit in section 552(a)(6)(A)(i), 

distinguished an earlier decision, Dettmann v. Department of Justice, 802 F.2d 1472 (D.C.

Cir. 1986), on the ground that in Dettman, there was “no indication that the FBI failed 

to meet the 10-day deadline for initial response.” Spannaus, 824 F.2d at 58. The Court 

noted that although its earlier opinion “reveals . . . that Dettmann requested the 

documents in January 1977 and received the first batch of them by September 1977,” 

the opinion “said nothing about when the FBI ‘determine[d] whether to comply with’

Dettman’s request.” Id. at 59 n.7. Thus, in Spannaus this Court recognized that the 

response required by section 552(a)(6)(A)(i) is merely an “initial response,” id. at 58,

and does not require the immediate production of responsive records. See also Oglesby 

v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990) (holding that “a reply from the 

agency indicating that it is responding to [a] request” is sufficient to trigger exhaustion 

requirement).

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That reading of the relevant statutory provisions is also consistent with FOIA’s 

legislative history and the established Executive Branch understanding of FOIA. The 

administrative time limits in section 552(a)(6) were first added to FOIA in 1974. 

See Pub. L. No. 93-502, § 1(c), 88 Stat. 1561, 1562. The amendments imposed a tenday time limit for agencies to determine “whether to comply” with a FOIA request 

out of concern that agencies were taking too long to provide even an initial response 

to information requests. See 118 Cong. Rec. 9949 (1972) (Rep. Moorhead)4 (“The 

major Government agencies took an average of 33 days to even respond to a request 

for public records under the Freedom of Information Act.”); see also, e.g., S. Rep. No. 

93-854, at 24 (1974), reprinted in Source Book, supra, at 176 (same).5

 The legislation 

thus imposed strict time limits for agencies to provide an initial determination 

whether to comply a FOIA request, and separately required records to be produced 

“promptly.” That understanding of the Act was reinforced by a 1995 House Report 

explaining that, under then-existing time limits, “[e]ach agency is required to 

determine within 10 days * * * after the receipt of a request whether to comply with 

 4 Reprinted in House Committee on Government Operations and Senate 

Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (P.L. 93-

502): Source Book: Legislative History, Texts, and Other Documents, 94th Cong., 1st Sess., 99

(Joint Comm. Print 1975) (hereinafter “Source Book”). 5

 Although the time limit for the agency’s determination whether to comply 

was originally ten days, it was increased to twenty days in the Electronic Freedom of 

Information Act Amendments of 1996 (“eFOIA”), Pub. L. No. 104-231, § 8(b), 110 

Stat. 3048, 3052. 

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the request,” and that “[t]he actual disclosure of documents is required to follow 

promptly thereafter.” H.R. Rep. No. 104-156, at 10 (1995).

6

Similarly, the Attorney General explained in a contemporaneous guidance 

memorandum on the 1974 FOIA amendments that the amendments “contemplate 

that an initial determination to furnish records will be dispatched within the [statutory] 

time limits . . ., and that the records will be furnished either at the same time or 

‘promptly’ thereafter.” See Attorney General, Memorandum: Preliminary Guidance 

Concerning the 1974 Freedom of Information Act Amendments, Dec. 11, 1974, at 2, reprinted in 

Source Book, supra, at 545 (hereinafter “Preliminary Guidance Memorandum”);7 see 

also ibid. (stressing that the amendments “call for an initial determination to be made 

on [a] request within 10 working days (usually two weeks) after its receipt,” and that 

“[a]fter any agency determination to comply in whole or part with a request for 

records . . . the records shall be made available ‘promptly’”). 

2. As noted, plaintiff does not contend that FOIA requires agencies to actually 

produce documents within the statutory time limit set forth in section 552(a)(6)(A)(i). 

 6 See also Information Policy in the 21st Century: A Review of the Freedom of Information 

Act: Hearing Before the Subcomm. on Gov’t Mgmt., Fin., & Accountability of the Comm. on 

Gov’t Reform, 109th Cong. 101 (May 11, 2005) (prepared testimony of Linda D. 

Koontz, Director, Information Management Issues, U.S. GAO) (“FOIA does not 

require agencies to make records available within a specific amount of time. . . . 

Agencies, however, are required to inform requesters within 20 days of receipt of a 

request as to whether the agency will comply with the request.”). 

7

 This memorandum was incorporated in the Attorney General’s 

Memorandum on the 1974 Amendments to the Freedom of Information Act (Feb. 

1975), reprinted in Source Book, supra, at 508.

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Reply Br. 9 n.7 (“To be clear, CREW is not arguing that the requisite determination 

‘whether to comply’ must be accompanied by a production of all documents the 

agency has decided to release[.]”). But at the same time as it acknowledges that fact,

plaintiff urges that the FEC in this case “was not capable of making” the required 

determination whether to comply “until the parties had agreed on the scope of the 

initial search, the agency had completed its search for responsive documents, and had 

reviewed all responsive documents to determine whether it would redact any 

information under claims of exemption.” Reply Br. 2. In other words, plaintiff 

contends that FOIA requires agencies to determine with specificity what records it 

will and will not produce, and what redactions it will make in those records, within the 

statute’s 20-day time limit. 

That interpretation of FOIA is contrary to the text of the statute. The phrase 

“determine . . . whether to comply” does not mean “determine the extent to which to 

comply.” The statute’s use of the word “whether” signals a binary choice—here, 

whether the agency will “comply” by providing such responsive records, or not 

“comply” by refusing to provide any records. See THE RANDOM HOUSE COLLEGE 

DICTIONARY 1499 (rev. ed. 1980) (“whether” is “used to introduce a single 

alternative, the other being implied or understood, or some clause or element not 

involving alternatives: . . . See whether he has come.”); Brian A. Garner, GARNER’S 

MODERN AMERICAN USAGE 857 (3d ed. 2009) (“Despite the superstition to the 

contrary, the words or not are usually superfluous, since whether implies or not.”). Nor 

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does the statute require the agency to determine whether to “comply with the request 

in full” by releasing all the records requested without exception or redaction. See

Reply Br. at 1, 7. As plaintiff appears to acknowledge, id. at 2, providing such a 

determination would likewise require the agency to determine what documents to 

produce, and what redactions to make within those documents, all within 20 days. 

Indeed, if plaintiff’s reading of FOIA were correct, there would have been no need 

for Congress to separately and specifically admonish agencies to complete the 

additional task of making “records . . . promptly available,” since the agency would 

presumably have completed all of the steps necessary to produce records save the 

additional ministerial step of actually delivering records to the requester. 

The government’s understanding is supported by the Attorney General’s

contemporaneous guidance on the 1974 FOIA amendments, which emphasized that 

“[a]t the time of the initial determination there may be some uncertainty on the part 

of the requester, or even on the part of the agency, as to the precise extent of the 

materials being made available and being denied.” Preliminary Guidance 

Memorandum, supra, at 7. The guidance thus distinguished between two types of 

denials—“denials of an entire request” that occur as part of the “initial 

determination,” and “partial denials” that occur upon “receipt of any records being 

made available pursuant to the initial determination.” Ibid. Similarly, the Department 

of Justice explains in its current FOIA guide that the initial determination whether to 

release any records is distinct from the later determination about what records to 

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release. See Department of Justice, Guide to the Freedom of Information Act 59 & n.150 

(2009) (explaining that “[a]n agency is not necessarily required to release the records 

within [the] statutory time limit” and citing with approval case authorizing release of 

records on a rolling basis). 

3. As the FEC’s brief explains (at 26-29), the government’s interpretation of 

section 552(a)(6)(A)(i) is reinforced by other FOIA provisions. For example, 

expedited processing of FOIA requests is governed by a separate provision, 5 U.S.C. 

§ 552(a)(6)(E).8 Under that provision, agencies must determine whether to provide 

expedited processing within ten days of the request, and thereafter release responsive 

records “as soon as practicable.” Id. § 552(a)(6)(E)(ii), (iii). Such expedited 

processing, however, requires requesters to demonstrate a “compelling need” for the 

records. Id. § 552(a)(6)(E)(i)(I). “Compelling need” is defined by statute to 

encompass requests that, if denied, “could reasonably be expected to pose an 

imminent threat to the life or physical safety of an individual,” or requests

characterized by an “urgency to inform the public concerning actual or alleged Federal 

Government activity.” Id. § 552(a)(6)(E)(v). 

FOIA’s expedited processing provision would be rendered superfluous by 

plaintiff’s reading of the statutory time limit in section 552(a)(6)(A)(i), which applies to 

all FOIA requests. See United States. v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2330 

 8 This provision was added to FOIA in the 1996 eFOIA amendments. See Pub. 

L. No. 104-231, § 8(a), 110 Stat. at 3051. 

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(2011) (“As our cases have noted in the past, we are hesitant to adopt an 

interpretation of a congressional enactment which renders superfluous another 

portion of that same law.” (internal quotation marks and citation omitted)). By 

design, Congress imposed “[n]o specific number of days for compliance” with the 

expedited processing requirement. See S. Rep. No. 104-272 at 17 (1996). The Senate 

report accompanying the 1996 amendments explained that “depending upon the 

complexity of the request, the time needed for compliance may vary.” Ibid. Thus, 

the report stressed, “[t]he goal is not to get the request for expedited access processed 

within a specific time frame, but to give the request priority for processing more 

quickly than otherwise would occur.” Ibid. Plaintiff’s position here is that under the 

statutory time limit that applies to all FOIA requests, agencies must fully and 

completely process such requests within a strict twenty-day time limit. That position 

cannot be reconciled with Congress’s clear intent that the sub-class of expedited

requests, including those involving “an imminent threat to the life or physical safety 

of an individual,” 5 U.S.C. § 552(a)(6)(E)(v), need not be “processed within a specific

time frame,” S. Rep. No. 104-272 at 17. 

In short, the FOIA’s text, purpose, and legislative history, together with this 

Court’s decisions and the Attorney General’s longstanding guidance, all support the 

conclusion that section 552(a)(6)(A)(i) only obligates the agency to provide, within the 

statutory time limit, an up-or-down determination whether it will comply with the 

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FOIA request by releasing at least some records, to be followed “promptly” thereafter 

with a more granular determination about what records to actually release.

B. The FEC “determine[d] . . . . whether to comply” with plaintiff’s 

request within the statutory time limit, and plaintiff was thus 

required to exhaust its administrative remedies.

Applying the principles above to the record in this case, it is plain that the FEC 

fulfilled its obligation to provide a determination “whether to comply” within the 

statutory time limit. Plaintiff submitted its FOIA request to the FEC on March 7, 

2011, seeking a variety of communications between three Commissioners and outside 

individuals and entities. JA6-7. As the district court observed, two days later “the 

FEC agreed to produce responsive documents on a rolling basis.” JA67; see also JA17-

18 (uncontroverted declaration of FEC official). By April 4, twenty days after 

receiving the plaintiff’s FOIA request, the FEC had engaged in at least three 

conversations to discuss the precise scope of a more limited initial search, see JA17-18, 

and reached a final agreement regarding the scope of the agency’s document review, 

see JA18-19, JA25-26. Throughout this process, the FEC reiterated its committment

to release records on a rolling basis. See JA18-19. 

The FEC’s response to plaintiff’s FOIA request, which made clear that the 

agency would be producing responsive records, epitomizes the sort of response that 

fulfills FOIA’s requirement to “determine . . . whether to comply” with a FOIA 

request within the statutory time limit. See Department of Justice, Guide to the Freedom 

of Information Act, at 59 & n.150 (explaining that “[a]n agency is not necessarily 

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required to release the records within [the] statutory time limit” and citing with 

approval a case authorizing release of records on a rolling basis). 

Plaintiff’s assertion that “while the FEC agreed to produce responsive 

documents, it never did so before CREW filed suit” is entirely beside the point. 

Pl. Br. 24. Similarly inapposite is plaintiff’s statement that the FEC did not “commit 

to provide CREW with any specific document by any specific date.” Ibid. As noted, 

FOIA permits requesters to avoid exhaustion of administrative remedies only if an 

agency fails to comply with the time limit in section 552(a)(6)(A)(i)—i.e., if the agency

fails to “determine . . . whether to comply” within 20 days of receiving the request. 

The FEC fulfilled that requirement. Although the actual production of records must 

be done “promptly,” 5 U.S.C. § 552(a)(6)(C)(i), an agency’s alleged failure to fulfill that

separate requirement does not excuse the requester from exhausting its administrative 

remedies. 

II. Plaintiff’s contrary position is flawed and would increase FOIA litigation 

that could otherwise be resolved as part of the ordinary administrative 

appeals process. 

1. Plaintiff’s legal arguments are mistaken. Plaintiff invokes (Pl. Br. 16) 

FOIA’s provision requiring agencies to “notify the person making such request of 

[its] determination 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). But 

that provision sheds no light on the scope of the required “determination.” Plaintiff’s 

argument that the agency’s failed to provide notice of its appeal rights is incorrect. See

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Reply Br. 3. As this Court has explained, an agency must provide the requester notice 

of the right to administratively appeal only “if the initial agency decision is adverse.”

Oglesby, 920 F.2d at 61. The “initial agency decision” here was not “adverse”; it was a 

determination that the agency would comply with the request by releasing records on 

a rolling basis. 

Plaintiff also urges (Pl. Br. 16-17) that the notification of the “the reasons 

therefor” must include the full results of the agency’s processing of a requester’s 

FOIA request, including “the reasons for the agency’s determination of what it will 

and will not release,” because “only such a determination that would yield ‘reasons’ 

susceptible to administrative review.” But that is not the most sensible reading of the 

statutory language. The phrase “reasons therefor” is best understood to refer to the 

reasons for an “adverse determination”—an initial determination that no records will 

be produced in response to the request. Preliminary Guidance Memorandum, supra, 

at 7 (referring to “denials of an entire request” as occurring upon an “initial 

determination”). Indeed, it makes little sense to speak of the “reasons” for a 

determination to comply with a FOIA request. In contrast, a requester needs to know 

the reasons for an adverse determination to take an administrative appeal.. Cf. Oglesby, 

920 F.2d at 65 (explaining that the agency must provide “notice of the right of the 

requester to appeal to the head of the agency if the initial agency decision is adverse”).

Plaintiff also invokes the provision of FOIA that permits the agency to extend 

the time limit for determining whether to comply with a request when presented with 

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specific “unusual circumstances.” See Pl. Br. 27-28 (citing 5 U.S.C. 

§ 552(a)(6)(B)(iii)(I)-(III)). As the FEC brief correctly explains (at 36-37), however, 

that provision addresses the common situation where even determining “whether to 

comply” with an information request—i.e., whether the agency will be able to release 

any responsive records—requires the agency to “search for and collect the requested 

records from field facilities” or other disparate offices, to “search for, collect, and 

appropriately examine a voluminous amount of separate and distinct records,” or to 

“consult[] * * * with another agency having a substantial interest in the determination 

of the request.” 5 U.S.C. § 552(a)(6)(B)(iii)(I)-(III). 

Plaintiff also erroneously relies on FOIA’s provision for Open America stays, see

Pl. Br. 31-32, which permit a court to “retain jurisdiction and allow the agency 

additional time to complete its review of the records” after a lawsuit is filed before the 

completion of administrative proceedings. See id. § 552(a)(6)(C)(i). The government’s 

position would not, as plaintiff argues, “rob[] the congressionally created Open America 

stay of any utility” or otherwise render this provision superfluous. See Pl. Br. 32. To 

the contrary, the provision would apply in situations where the agency has failed to 

provide even an initial determination whether to comply with a FOIA request within 

the required timeframe. 

Plaintiff’s reliance on the legislative history of FOIA is also misplaced. As an 

initial matter, whatever the legislative history might suggest as the motivating purpose 

of the FOIA amendments, a straightforward reading of the language of FOIA alone 

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requires rejection of plaintiff’s suggestion that the Act compels agencies to complete 

all of the steps necessary to produce records save the actual physical production of 

records within 20 days. See U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 494 

(D.C. Cir. 2004) (“[W]hen the statute’s language is plain, the sole function of the 

courts—at least where the disposition required by the text is not absurd—is to 

enforce it according to its terms.” (quoting Lamie v. United States Tr., 540 U.S. 526, 534

(2004)).

In any event, the legislative history does not support plaintiff’s position.

Plaintiff urges that the 1996 amendments to FOIA were motivated by Congress’s 

concern that “agencies had largely failed to produce records within the ten-day time 

limit.” Pl. Br. 29. In fact, the portions of the legislative history that plaintiff cites 

speak only of concern regarding delays in the agency’s ability to “process” requests 

within the existing ten-day time limits. See, e.g., S. Rep. No. 104-272, at 16 (1996). 

When read together with other portions of the legislative history, the “processing” 

that is being referred to is best understood as simply the processing necessary to 

provide the initial determination contemplated by section 552(a)(6)(A)(i). See, e.g., ibid.

(“Currently the FOIA allows agencies 10 working days to make initial determinations 

on requests for information possessed by the Government. . . . The bill . . . doubles 

the allowable time period for making an initial determination to 20 working days . . . .”

(emphases added)); see also Federal Information Policy Oversight: Hearing Before the Subcomm. 

on Gov’t Mgmt., Info., and Tech. of the H. Comm. on Gov’t Reform and Oversight, 104th Cong. 

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 20 of 25
15

422 (1996) (agency letter explaining that “it is a common practice for agencies to 

provide requesters with initial determination letters prior to the actual release of 

responsive records”). And, in any event, to the extent Congress wanted agencies to 

actually produce records within a short timeframe, it enacted the expedited processing 

provisions described above, which do not apply to this case and which impose “[n]o 

specific number of days for compliance.” See S. Rep. No. 104-272 at 17 (1996). 

2. Plaintiff’s position is also contrary to the efficient administration of FOIA 

and the interests of judicial economy. As the Supreme Court has explained, Congress 

intended FOIA “to provide workable rules of . . . disclosure.” See U.S. Dept. of Justice

v. Landano, 508 U.S. 165, 180 (1993) (internal quotation marks omitted) (quoting U.S. 

Dep’t of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 779 (1989)). But 

when faced with a sweeping FOIA request like the one here, agencies would find it

difficult (if not impossible) to “search for responsive documents” and “review[]

[them] to determine whether it would redact any information under claims of 

exemption” within 20 days, as plaintiff urges. Reply Br. 2. As a result, plaintiff’s

position, if adopted by this Court, is virtually certain to pretermit the orderly agency 

review process for complex FOIA requests, and lead to a predictable increase in 

district court FOIA litigation as requesters file suit without having to exhaust their 

administrative remedies. 

Plaintiff’s position would thus place the district courts in the position of 

adjudicating record disputes that might otherwise be resolved during the agency 

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16

review process. As this Court has stressed, FOIA’s administrative review scheme 

gives agencies “an opportunity to exercise [their] discretion and expertise on the 

matter and to make a factual record to support [their] decision.” Oglesby, 920 F.2d at

61. The ordinary agency review process also enables the “top managers of an agency” 

to “correct mistakes at lower levels,” thus obviating “unnecessary judicial review.” 

Ibid. Indeed, as the district court recognized, this very case highlights the risks in 

reading the statutory time limits as broadly requiring the type of determination that 

plaintiff posits. The FEC “has not had the opportunity to address any of the 

objections [plaintiff] lodges to the scope of production, adequacy of the searches, or 

claimed exemptions and withheld documents” or the “time to correct any errors 

alleged by CREW.” JA72. 

In sum, the FEC fulfilled its obligation to make a determination whether it 

would comply with plaintiff’s FOIA request within the 20-day time limit imposed 

section 552(a)(6)(A)(i). Plaintiff was therefore required to exhaust its administrative 

remedies prior to filing suit, something which it failed to do. The district court thus 

properly dismissed this lawsuit. 

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 22 of 25
17

CONCLUSION

For the foregoing reasons, and those stated in the brief filed by the Federal 

Election Commission, the district court’s judgment should be affirmed. 

Respectfully submitted,

STUART F. DELERY

Principal Deputy Assistant Attorney 

General

RONALD C. MACHEN JR.

United States Attorney

MICHAEL S. RAAB

/s/ Sarang V. Damle

SARANG V. DAMLE

(202) 514-5735

Attorneys, Appellate Staff

Civil Division, Room 7217

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530

NOVEMBER 2012

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 23 of 25
CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(A)

I hereby certify that the certify that this brief complies with the requirements of 

Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Garamond, a 

proportionally spaced font. 

I further certify that this brief contains fewer than twenty pages, in compliance 

with this Court’s order of October 16, 2012. 

/s/ Sarang V. Damle

SARANG V. DAMLE

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 24 of 25
CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2012, I electronically filed the foregoing 

brief with the Clerk of the Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system. I further certify 

that I will cause eight paper copies of this brief to be filed with the Court within two 

business days.

The participants in the case are registered CM/ECF users and service will be 

accomplished by the appellate CM/ECF system. 

/s/ Sarang V. Damle

SARANG V. DAMLE

USCA Case #12-5004 Document #1406316 Filed: 11/21/2012 Page 25 of 25