RECORD NO. 12-5004 

THE LEX GROUP  1825 K Street, N.W.  Suite 103  Washington, D.C. 20006 

(202) 955-0001  (800) 856-4419  Fax: (202) 955-0022  www.thelexgroup.com

 

ORAL ARGUMENT SCHEDULED FOR OCTOBER 16, 2012 

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, 

PUBLIC CITIZEN, et al.,

Amici Curiae for Appellant. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

 

REPLY BRIEF OF APPELLANT 

*Anne L. Weismann 

Melanie Sloan 

CITIZENS FOR RESPONSIBILITY AND 

 ETHICS IN WASHINGTON 

1400 Eye Street, N.W., Suite 450 

Washington, D.C. 20005 

(202) 408-5565 

Counsel for Appellant 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 1 of 32
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....... ....... ....... ....... ....... ....... ii

GLOSSARY ....... ....... ....... ....... ....... ....... ....... ..... v

SUMMARY OF THE ARGUMENT ....... ....... ....... ....... ....... 1

ARGUMENT ....... ....... ....... ....... ....... ....... ....... ..... 5

I. UNDER THE FOIA THE FEC WAS REQUIRED WITHIN 20

DAYS TO DETERMINE AND ADVISE CREW WHETHER

THE AGENCY WOULD GIVE CREW THE DOCUMENTS

IT SEEKS ....... ....... ....... ....... ....... ....... .... 5

A. The Plain Language Of The FOIA Required The FEC To

Advise CREW Within 20 Days Of Receiving CREW’s

Request Whether The FEC Would Give CREW The

Documents It Seeks ....... ....... ....... ....... ..... 5

B. No Binding Precedent Supports The FEC’s Interpretation

Of Its Obligations Under The FOIA . . . . . . . . . . . . . . . . . . . 12

C. The FEC’s Interpretation Of Its Statutory Obligations

Under The FOIA Would Undermine Numerous

Provisions Of The Statute. ....... ....... ....... ...... 16

D. The FEC’s Policy Arguments Present No Persuasive

Reason To Deviate From The FOIA’s Plain Language

And Legislative Intent ....... ....... ....... ....... . . 21

CONCLUSION ....... ....... ....... ....... ....... ....... ....... . . 24

CERTIFICATE OF FILING AND SERVICE

CERTIFICATE OF COMPLIANCE

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 2 of 32
ii

TABLE OF AUTHORITIES

Page(s)

CASES

Accuracy in Media, Inc. v. Nat’l Transp. Safety Bd., 

2006 U.S. Dist. LEXIS 21532 (D.D.C. Mar. 29, 2006) . . . . . . . . . . . . . . . 15

Bhd. of Locomotive Eng’rs v. Atchison, T. & S.F.R.R., 

516 U.S. 152 (1996) ....... ....... ....... ....... ....... ....... 16

Cabreja v. U.S. Citizenship & Immigration Servs., 

2008 U.S. Dist. LEXIS 94262 (D.D.C. Nov. 19, 2008) . . . . . . . . . . . . . . . 14

Elec. Privacy Info. Ctr. v. Dep’t of Justice, 

416 F. Supp. 2d 30 (D.D.C. 2006) ....... ....... ....... ....... ... 20

Love v. FBI, 

660 F. Supp. 2d 56 (D.D.C. 2009) ....... ....... ....... ....... 12, 13

Milner v. Dep’t of the Navy, 

131 S. Ct. 1259 (2011) ....... ....... ....... ....... ....... ..... 18

Nurse v. Sec’y of the Air Force, 

231 F. Supp. 2d 323 (D.D.C. 2002) ....... ....... ....... ....... . . 22

*Oglesby v. U.S. Dep’t of the Army, 

920 F.2d 57 (D.C. Cir. 1990) ....... ....... ....... ....... .... 10, 11

Open America v. Watergate Special Prosecution Force, 

547 F.2d 605 (D.C. Cir. 1976) ....... ....... ....... ..... 3, 16, 17, 18

*Spannaus v. U.S. Dep’t of Justice, 

824 F.2d 52 (D.C. Cir. 1987) ....... ....... ....... ....... ....... 21

* Chief Authorities are Designated with an Asterisk

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 3 of 32
iii

Taylor v. Appleton, 

30 F.3d 1365 (11th Cir. 1994) ....... ....... ....... ....... 10, 11, 15

Thomas v. Dep’t of Health & Human Servs., 

587 F. Supp. 2d 114 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

TRW Inc. v. Andrews, 

534 U.S. 19 (2001) ....... ....... ....... ....... ....... ....... . 17

Wirtz v. Bottle Blowers Ass’n, 

389 U.S. 463 (1968) ....... ....... ....... ....... ....... ....... 16

STATUTES

5 U.S.C. § 552(a)(3)(A) ....... ....... ....... ....... ....... ....... ... 19

5 U.S.C. § 552(a)(6)(A) ....... ....... ....... ....... ....... ... 5, 8, 11, 19

5 U.S.C. § 552(a)(6)(A)(i) . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4, 5, 6, 9, 10, 14, 16, 17

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

5 U.S.C. § 552(a)(6)(C) ....... ....... ....... ....... ....... ....... ... 21

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

5 U.S.C. § 552(a)(6)(C)(ii) ....... ....... ....... ....... ....... ....... 17

5 U.S.C. § 552(a)(6)(E)(iii) ....... ....... ....... ....... ....... ....... 20

5 U.S.C. § 552(a)(7) ....... ....... ....... ....... ....... ....... ..... 19

5 U.S.C. § 552(a)(7)(B)(ii) ....... ....... ....... ....... ....... ....... 19

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 4 of 32
iv

OTHER AUTHORITIES

Department of Justice, Summary of Annual FOIA Reports for Fiscal Year 2010

available at http://www.justice/gov/oip.foiapost/fy2010-ar-summary.pdf . . . . . . 23

H.R. Rep. No. 93-876 (1974) ....... ....... ....... ....... ....... ..... 11

H.R. Rep. No. 93-879 (1974) ....... ....... ....... ....... ....... ..... 11

H.R. Rep. No. 104-795 (1996) ....... ....... ....... ....... ....... .... 22

Hearing on S. 1940 before the Subcomm. on Tech. & the Law of the 

S. Comm. on the Judiciary, 102d Cong. 4 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 19

List of Freedom of Information Act Cases Received in 2010 

available at http://www.justice.gov/oip/cy10/received-2010.pdf . . . . . . . . . . . . . 23

Memorandum from Janet Reno, Attorney General, to Heads of

Departments and Agencies, regarding the Freedom of Information Act

(Oct. 4, 1993) ....... ....... ....... ....... ....... ....... ....... .... 22

Merriam-Webster’s Collegiate Dictionary 255 (11th ed. 2006) . . . . . . . . . . . . . 1, 7

S. Rep. No. 104-272 (1996) ....... ....... ....... ....... .... 18, 19, 20, 22

U.S. Dep’t of Justice,

Guide to the Freedom of Information Act (2009) . . . . . . . . . . . . . . . . . . . . . . 14, 22

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 5 of 32
v

GLOSSARY

CREW Citizens for Responsibility and Ethics in Washington

FEC Federal Election Commission

FOIA Freedom of Information Act

JA Joint Appendix

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 6 of 32
 Merriam-Webster’s Collegiate Dictionary 255 (11th ed. 2006). 1

1

SUMMARY OF THE ARGUMENT

This dispute centers on the meaning of a phrase of the FOIA requiring

responding agencies to determine within 20 working days of receiving a request

“whether to comply” with the request and to communicate that determination

“immediately” to the requester, together with the reasons for the determination and

notice of administrative appeal rights. 5 U.S.C. § 552(a)(6)(A)(i). The FEC

claims to have satisfied this provision here by a series of communications over a

several month period that culminated in an agreement on the scope of the initial

search the FEC would conduct, together with the agency’s agreement that when it

produced documents at some unidentified future date or dates, it would do so on a

rolling basis. The facts and timing of these communications are not in dispute. 

Instead, the parties disagree on whether they triggered the requirement that CREW

refrain from filing suit until it had exhausted administrative remedies. 

For multiple reasons, the FEC’s interpretation must fail. First, it conflicts

directly with the express statutory language and purpose of the FOIA, as reflected

in the entirety of the provision at issue and the larger statute of which it is a part. 

A plain language approach requires the Court to accord the word “comply” its

dictionary definition of “complete, perform what is due.” Applied here, the FEC 1

was required to advise CREW immediately and expressly whether it would

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 7 of 32
2

“perform what is due,” by giving CREW the documents it was requesting. It is

undisputed that at no point prior to CREW filing suit did the FEC so advise

CREW. 

In fact, the FEC was not capable of making that determination until after 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. 

The FEC did not “complete” these actions until after CREW filed its lawsuit. By

contrast, its interim steps of advising CREW on procedural matters, such as the

granting of CREW’s request for a fee waiver and the agency’s agreement to

produce documents on a rolling basis, did not address in any way the substantive

issue of what those documents produced on a rolling basis would be, the extent to

which they would satisfy CREW’s request, and whether the FEC would redact any

information from any of the documents. As such, the procedural determinations

the FEC made fall far short of a determination “whether to comply.” 

Moreover, as implemented here, the FEC’s interpretation of what constitutes

a determination “whether to comply” creates a process that runs directly contrary

to that dictated by the FOIA. Under section 552(a)(6)(A)(i), at the same time an

agency determines “whether to comply” and “immediately” so advises the

requester, the agency also must provide the reasons for the determination, and

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 8 of 32
3

advise the requester of the right to file an administrative appeal. Here, however,

the FEC engaged in a multi-step process stretched over a period of time. It started

with a series of communications over the course of several months addressing only

procedural aspects of the request. This was followed by several partial

productions of responsive documents several months later and after CREW filed

suit, and ended with the agency advising CREW of its right to administratively

appeal the agency’s multiple withholdings. The FEC’s failure to provide

“immediate[]” notice to CREW of its administrative appeal rights at the time the

FEC made what it deems a determination “whether to comply” is fatal to its claim

to have satisfied section 552(a)(6)(A)(i).

The FEC’s construction also undermines several other key provisions added

to the FOIA to address agency delays in responding based on an inability to

complete review of all potentially responsive documents. The Open America stay

provision, 5 U.S.C. § 552(a)(6)(C)(i), and the “unusual circumstances” provision,

5 U.S.C. § 552(a)(6)(B)(i), provide safety valves for agencies that cannot meet the

20-day time to respond. Both, however, would have no continued vitality if

agencies could meet their responsibility to make a determination on “whether to

comply” simply by notifying a requester the agency is in receipt of the request and

intends to process it at some point in time. 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 9 of 32
4

For its part, the FEC argues an interpretation of section 552(a)(6)(A)(i)

requiring agencies to do more than tell a requester they are in receipt of the request

that they will process at some point in time would render superfluous the FOIA

provision for expedited treatment and its requirement that agencies assign tracking

numbers to requests older than 10 days. In fact, it is the FEC’s arguments that, if

accepted, would render these provisions superfluous.

The FEC’s policy arguments fare no better. While exhaustion of

administrative remedies serves many laudable interests, in enacting the FOIA

Congress balanced those interests against the interests of requesters in having

prompt access to the documents they seek. This balance resulted in the FOIA’s

constructive exhaustion provision, which provides an exception to actual

exhaustion even if the agency will be deprived of an opportunity to review in the

first instance objections a requester may have to what the agency produced and

how it conducted its search. At bottom, many of the FEC’s arguments are with the

FOIA itself, and the strict time limits it imposes on agencies to process requests. 

Those arguments are more appropriately addressed to Congress, not this Court.

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 10 of 32
5

ARGUMENT

I. UNDER THE FOIA THE FEC WAS REQUIRED WITHIN 

20 DAYS TO DETERMINE AND ADVISE CREW

WHETHER THE AGENCY WOULD GIVE CREW

THE DOCUMENTS IT SEEKS.

A. The Plain Language Of The FOIA Required The FEC

To Advise CREW Within 20 Days Of Receiving

CREW’s Request Whether The FEC Would Give

CREW The Documents It Seeks.

In essence, this case revolves around the meaning of four simple words:

“determine . . . whether to comply,” 5 U.S.C. § 552(a)(6)(A)(i). That meaning

dictates whether CREW was required to exhaust administrative remedies before

filing suit, as the FEC claims, or whether CREW could instead utilize the FOIA’s

constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i), which allows a

requester to file suit when the agency has not complied with its obligations under

section 552(a)(6)(A). As CREW demonstrated in its opening brief, the plain

language of this phrase, the meaning of the words around it, and the larger statute

of which it is a part express a requirement that within 20 business days an agency

in receipt of a FOIA request process the request and tell the requester whether the

agency will give the requester the documents it seeks. Further, when advising the

requester of this determination, the agency must at the same time provide the

requester with the reasons for the agency’s determination and applicable

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 11 of 32
 FEC Br. refers to the brief of the Federal Election Commission.

2

 The FEC also seems to be suggesting that if an agency uses magic words 3

indicating it “will comply,” the agency will have satisfied its obligations under

section 552(a)(6)(A)(i), regardless of what the agency intends by that statement. 

The mandatory requirements of the FOIA, however, are not so easily circumvented

by elevating form over substance. Only a response indicating the agency will or

will not provide the requester all of the requested documents indicates whether the

agency “will comply.”

6

administrative appeal rights. No other interpretation squares with the statutory

language or purpose.

Nevertheless, the FEC advances an interpretation that reduces the phrase

“determine . . . whether to comply” to the requirement that an agency merely tell

the requester, in advance of actually processing any aspect of the request, whether

the agency will, at some point, process the request coupled with any procedural

decisions the agency has reached. The FEC purports to derive this interpretation

from a “plain language” approach it claims gives the four-word phrase its

“‘ordinary, contemporary, common meaning.’” FEC Br. 26, 27 (citation omitted).2

Tellingly, the FEC cites no support for this “ordinary, contemporary, common

meaning,” and more critically ignores the central word of this phrase: “comply.”

Instead, the FEC focuses on the word “determination,” even though the parties

agree the FOIA required the FEC to make a “determination” within 20 business

days of receiving CREW’s FOIA request. 

3

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 12 of 32
7

What the parties dispute is the nature of that determination, and whether it

was satisfied here when the FEC, over the course of several months, committed to

a process of rolling production for any documents it produced. That dispute is

resolved by reference to the key statutory word “comply,” which describes the

contents of the required determination. The dictionary – the best source for a

word’s “plain meaning” – defines “comply” as follows:

to complete, perform what is due . . . to conform, submit,

or adapt (as to a regulation or to another’s wishes) as

required or requested . . .

Merriam-Webster’s Collegiate Dictionary at 255. Applying this plain meaning

here, the FEC was required within 20 days of receiving CREW’s FOIA request to

inform CREW whether the agency would “conform” with CREW’s request by

giving CREW that to which it “is due” or which CREW had “requested,”

specifically the documents delineated in CREW’s FOIA request. Anything less

falls short of the required determination.

It is undisputed that at no time prior to CREW filing suit did the FEC

specifically advise CREW the agency would produce all or even some identified

subset of the documents CREW had requested. Instead, in a series of

communications the FEC advised CREW of the following: (1) it was granting

CREW’s request for a fee waiver (JA 14, ¶ 4); (2) when the FEC produced

documents, it would do so on a rolling basis (JA 43-44, ¶ 4); (3) the agency was

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 13 of 32
See also FEC Br. at 18-19 (same). 4

 Curiously, the FEC points to what it labels as “CREW’s concession . . .

5

that the Commission had ‘explicit[ly] agree[d] with CREW on the procedure for

complying with the request,” FEC Br. at 20 (citing CREW Br. at 11) as support for

its claim to have complied with the requirements of section 552(a)(6)(A). Yet it is

precisely this agreement on procedural matters only that illustrates why the FEC

had not made a determination “whether to comply” before CREW filed suit. 

8

excluding certain documents identified by CREW from its initial search, after

which CREW would follow up with further clarification whether additional

searches are needed to satisfy its request (JA 32); (4) following CREW’s

clarification of the scope of its request the FEC had begun the process of locating

and reviewing potentially responsive documents (JA45-46, ¶¶ 6-10); and (5) as of

May 9 – ten days prior to CREW filing suit – the agency had not completed its

review of documents identified as responsive to the initial search (JA 45-46, 

¶¶ 11-13). All of these communications centered on the procedural aspects of 4

satisfying CREW’s request: the process it would use to produce documents,

whether it would charge CREW search and production costs, and the scope of the

search the agency would conduct. By contrast, the agency made no commitments

on whether it would satisfy the substantive aspects of CREW’s request.5

Indeed, it was not until the FEC had located and reviewed all responsive

documents that the agency was even in a position to advise CREW of its

determination “whether to comply.” Until that point, there was no bounded

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 14 of 32
 The FEC takes issue with the characterization of these actions as 6

constituting a “denial” in part of CREW’s request. FEC Br. at 20 n.6. But the

FEC’s letter of June 23, 2011 speaks for itself and identifies quite clearly

redactions the agency made from documents responsive to CREW’s request. 

Those redactions of requested material include “commercial information”

purportedly exempt under FOIA Exemption 4, law enforcement information

purportedly exempt under FOIA Exemption 7(C), and information alleged to

implicate personal privacy purportedly exempt under FOIA Exemption 6. JA 32-

33. Under any conceivable construction of the FOIA, the agency’s actions

constitute a “denial,” at least in part.

 To be clear, CREW is not arguing that the requisite determination

7

“whether to comply” must be accompanied by a production of all of the documents

the agency has decided to release, as the FEC suggests. See, e.g., FEC Br. at 27-

28. It just so happens that here, the FEC decided to combine its notice of whether

it would comply – a notice that identified what the agency would and would not be

releasing and why and CREW’s administrative appeal rights – with the actual

production of documents. The FOIA requires only that an agency produce

documents “promptly” after making a determination “whether to comply.” 5

U.S.C. § 552(a)(6)(A)(i).

9

universe of documents to review and determine whether they were responsive and

whether entire documents, or parts of documents, were exempt from disclosure. 

Here, that point occurred one month after CREW filed suit, when the agency

determined to withhold some responsive information under claims of exemption,

provided CREW with a written explanation of what it had determined and why,

and advised CREW of its right to file an administrative appeal of the agency’s

adverse determinations. See JA 31-33. Together these components comprise the 6

determination required by 5 U.S.C. § 552(a)(6)(A)(i).7

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 15 of 32
 The FEC preceded this notice of its determination to comply with two 8

earlier letters providing some of the documents CREW seeks. Both letters

expressly stated they did not constitute “a final agency decision . . . subject to

appeal.” JA 38, 41.

 In Taylor, the agency had sent the requester a series of three letters: the 9

first advised him which office was processing his request; the second produced

documents; and the third explained exemptions the agency was claiming and

advised the requester of the agency’s appeal procedures. 30 F.3d at 1368-69. 

10

To otherwise construe the FEC’s pre-litigation communications as a

determination “whether to comply” runs directly contrary to the FOIA. At the

same time an agency determines “whether to comply,” the agency must

“immediately” advise the requester of its determination, provide the reasons for the

determination, and advise the requester of the right to file an administrative

appeal. 5 U.S.C. § 552(a)(6)(A)(i); Oglesby v. U.S. Dep’t of the Army, 920 F.2d

57, 66 (D.C. Cir. 1990). Here, the FEC did not take these steps immediately or

concurrently, but instead engaged in a multi-step process stretched over a period

of time that: started with a series of communications addressing procedural

aspects of the request; was followed by notice months later, after CREW filed suit,

of what the agency was producing and withholding; and ended with a final

production and notice to CREW of its right to administratively appeal the agency’s

adverse determinations. As such, they fall short of the immediate and concurrent 8

notice the statute mandates. See id.; see also Taylor v. Appleton, 30 F.3d 1365

(11th Cir. 1994).9

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 16 of 32
The Eleventh Circuit characterized only the third and final letter – sent after the

requested had filed suit – as complying with the requirements of 

5 U.S.C. § 552(a)(6)(A), as only this letter “inform[ed] Taylor of his right to an

administrative appeal.” Id. at 1369.

11

The FEC’s approach also is unworkable as a practical mater. Neither the

district court below nor the FEC has defined what precise set of factors constitute

the required determination of “whether to comply,” instead describing a series of

actions over a period of months. The FEC in fact eschews a “bright-line rule,”

claiming the exhaustion requirement is not triggered by “any single

communication or particular subset of communications.” FEC Br. at 20. But this

leaves agencies and requesters alike to guess at what set of circumstances is

sufficient to constitute a determination “whether to comply” that triggers the

requester’s obligation to exhaust administrative remedies before filing suit.

Such uncertainty in the FOIA agency process is precisely what Congress

sought to avoid. Toward that end, the statute states very specifically what an

agency must do and when. The statute’s time limits were adopted “‘in order to

contribute to the fuller and faster release of information, which is the basic

objective of the Act.’” Oglesby, 920 F.2d at 64, n.8 (citing H.R. Rep. No. 93-876

(1974)). Similarly, Congress added the constructive exhaustion provision to

“spur . . . the agencies to respond within the ten-day deadline.” Id. See also H.R.

Rep. No. 93-879, at 126 (1974) (“It is the intent of this bill that the affected

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 17 of 32
12

agencies be required to respond to inquiries and administrative appeals within

specific time limits.”). In other words, Congress meant what it said when it

provided a deadline by which agencies must respond to FOIA requests. The

uncertainty the FEC seeks to inject through a multi-step process that ignores

statutorily imposed deadlines conflicts directly with Congress’ intent. 

In sum, the failure of the FEC and the district court here to “identify any

single communication or particular subset of communications that was sufficient

to trigger the exhaustion requirement,” FEC Br. at 21, is fatal to the FEC’s claim

that CREW was required to exhaust administrative remedies before filing suit.

B. No Binding Precedent Supports The FEC’s

 Interpretation Of Its Obligations Under The FOIA.

In support of its statutory construction argument, the FEC relies on several

district court cases here and in another district it claims compel the conclusion

CREW was required to exhaust administrative remedies before filing suit. These

cases, none of which are binding on this Court, are either wrongly decided or

stand for a different proposition than the FEC claims. In addition, they are

countered by other decisions from this district and elsewhere. 

First, the FEC cites Love v. FBI, 660 F. Supp. 2d 56 (D.D.C. 2009), to

support its claim an agency’s notice of its determination “whether to comply” need

not include the reasons for the determination and notice of appeal rights. FEC Br.

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 18 of 32
 660 F. Supp. 2d at 58.

10

 Declaration of John W. Kornmeier at ¶ 7, Love v. FBI, 660 F. Supp. 2d 56, 11

Dkt. 18-2.

 660 F. Supp. 2d at 58.

12

 Declaration of William C. Little, Jr. at ¶ 16, Love v. FBI, 660 F. Supp. 2d 13

56, Dkt. 18-1. 

Id. at ¶ 17. 

14

13

at 22. The facts of Love do not bear out this interpretation, as the requester had

failed to comply with the requirements of the agency administrative process. The

declaration of John W. Kornmeier, on which the Love court relied, explains the 10

requester never responded to a letter from the Executive Office of U.S. Attorneys

advising the requester his estimated fees would exceed $25, and seeking his

agreement to pay the fees or reformulate his request. Similarly, the declaration 11

of William C. Little, Jr. from the Drug Enforcement Agency, on which the Love

court also relied, states the agency denied the request at issue because it “did not 12

reasonably describe records . . . was not filed in accordance with agency rules, and

it did not include a promise to pay or request for a waiver of fees.” Further, the 13

DEA never received “the plaintiff’s certificate of identity or a reformulated

request.” Thus, Love stands for the well documented proposition that a requester 14

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 19 of 32
See also U.S. Dep’t of Justice, Guide to the Freedom of Information Act,

15

744-48 (2009) and cases cited therein (enumerating circumstances where

requesters have not constructively exhausted their administrative remedies

because of their failure to follow administrative processes, including, inter alia,

failure to provide proof of identity, failure to “reasonably describe” requested

records, and failure to comply with fee requirements).

14

who fails to comply with agency requirements for processing a request cannot

avail itself of the FOIA’s constructive exhaustion procedures.

15

The FEC also relies on Cabreja v. U.S. Citizenship & Immigration Services, 

where the court noted the FOIA “does not require an agency to produce within 20

days the results of a search . . .” 2008 U.S. Dist. LEXIS 94262, *2 (D.D.C. Nov.

19, 2008) (emphasis added). Here, of course, CREW does not argue the FEC was

required to produce all responsive documents within 20 days, just advise CREW

whether the agency would be producing the requested documents. Moreover, the

court’s failure in Cabreja to find constructive exhaustion is hardly surprising

given the plaintiff’s failure to perfect its request by providing the requested

certification, one of the required steps in the administrative process. 

On the other hand, a number of cases have addressed the issue presented

here and concluded a FOIA plaintiff has constructively exhausted administrative

remedies where the agency failed to perform all that section 552(a)(6)(A)(i)

requires within 20 days. For example, in Thomas v. Department of Health &

Human Services, 587 F. Supp. 2d 114 (D.D.C. 2008), the court found neither a

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 20 of 32
15

letter from the agency advising the plaintiff the agency had received his FOIA

request, nor a subsequent letter advising the request was in a queue and would be

processed on a “‘first-in, first-out’” basis required the plaintiff to exhaust

administrative remedies before filing suit. Id. at 116. As the court explained,

neither communication stated whether the agency “would comply with the

request,” and neither advised the plaintiff “of his appeal right.” Id. at 116, 117. 

This was so even though the “nature” of the second letter “could reasonably be

understood to imply that the FDA intended to conduct a search for responsive

records.” Id. at 116. See also Accuracy in Media, Inc. v. Nat’l Transp. Safety Bd.,

2006 U.S. Dist. LEXIS 21532, *13 (D.D.C. March 29, 2006) (plaintiff found to

have constructively exhausted administrative remedies because the agency had not

“complied” with his request before he filed suit, even though the agency had

already acknowledged receipt of his FOIA request and informed him which office

was processing the request); Taylor, 30 F.3d at 1369.

Here, too, at least some of the communications from the FEC to CREW

could be understood as implying the FEC intended to conduct a search for records

responsive to CREW’s request. But absent an explicit statement from the FEC

that it intended to comply with the request by providing CREW the documents it

seeks and informing CREW of its right to appeal an adverse decision to the agency

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 21 of 32
 Elsewhere, the FEC argues this Court cannot consider the legislative

16

history because the meaning of the phrase “determine . . . whether to comply” is

plain. FEC Br. at 30. The Supreme Court has recognized, however, that a “proper

construction frequently requires consideration of [a statute’s] wording against the

background of its legislative history and in the light of the general objectives

Congress sought to achieve.” Wirtz v. Bottle Blowers Ass’n, 389 U.S. 463, 468

(1968).

16

head, CREW was not required to exhaust administrative remedies before filing

suit. 

C. The FEC’s Interpretation Of Its Statutory

 Obligations Under The FOIA Would Undermine

 Numerous Provisions Of The Statute.

CREW demonstrated in its opening brief, with support from both the

language and legislative history of the FOIA, how the FEC’s interpretation of its

obligation to determine “whether to comply” would nullify other key provisions of

the statute and conflict with the FOIA’s purpose. The FEC offers no compelling

arguments in response, instead advancing a contorted interpretation of these

provisions in a futile effort to reconcile them with its flawed interpretation of

section 552(a)(6)(A)(i). Principles of statutory construction require this Court to

16

reconcile all provisions of the FOIA in one harmonious whole. See, e.g., Bhd. of

Locomotive Eng’rs v. Atchison, T. & S.F.R.R., 516 U.S. 152, 157-58 (1996).

Congress provided agencies unable to meet the statute’s strict time limit for

making a determination “whether to comply” two safety valves: access, in

appropriate circumstances, to an Open America stay where a requester has filed

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 22 of 32
 5 U.S.C. § 552(a)(6)(C)(ii). 17

17

suit after constructively exhausted administrative remedies, and the ability in

“unusual circumstances” to secure an additional ten days to make a determination

whether to comply while the matter is still before the agency. As CREW has

explained, interpreting the obligation to determine “whether to comply” as

requiring only that an agency advise a requester it intends to process a request,

with no specifics on what the agency will and will not produce, renders each of

these safety valves a nullity. 

In response, the FEC argues the Open America stay remains available where

an agency either fails to respond at all, or indicates only “it is ‘processing’ the

request.” FEC Br. at 35. But that essentially is what the FEC indicated to CREW

here, reinforcing the point that if such notification satisfies section 552(a)(6)(A)(i),

the Open America provision – expressly designed to “allow the agency additional

time to complete its review of the records” – serves no purpose. Accordingly, 17

under “a cardinal principle of statutory construction,” the FOIA should not be

construed to render this provision “superfluous, void, or insignificant.” TRW Inc.

v. Andrews, 534 U.S. 19, 31 (2001).

The FEC also has failed to demonstrate how its interpretation of “whether to

comply” can be reconciled with the “unusual circumstances” provision of the

FOIA. As CREW has explained, Congress enacted this provision expressly to

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 23 of 32
 The FEC’s argument rings particularly hollow given its failure to avail 18

itself here of either the Open America stay or the unusual circumstances provision.

18

help agencies unable to meet the then-ten-day limit for processing requests. See,

e.g., S. Rep. No. 104-272, at 16 (1996). That agencies may require even more

time beyond the additional ten days afforded by the “unusual circumstances”

provision to search for, collect, and review responsive documents (FEC Br. at 36)

is an argument better addressed to Congress as a reason to change the existing law,

not to this Court as a reason to not give effect to the plain language of the statute.18

See Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1271 (2011) (where “Congress

has not enacted the FOIA [provision] the Government desires . . . [w]e leave to

Congress, as is appropriate, the question of whether it should do so.”).

The FEC also has failed to respond substantively to the fact that if its

interpretation of “determine . . . whether to comply” is accepted, agencies need not

use either of the safety valves Congress provided and could, instead, unilaterally

grant themselves an indefinite extension simply by indicating an intent to process

a request at some point in time. That the FEC here did not grant itself an

“indefinite extension,” but rather one of several months (notwithstanding the

FOIA’s command to determine whether it would provide the requested documents

within 20 days), does not negate this possibility. Moreover, Congress’ focus went

well beyond agencies that were taking an “indefinite” period of time to determine

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 24 of 32
19

whether to comply; Congress expressed concern about the predominate number of

agencies that were taking longer than ten days, the statutory time limit then in

place for making that determination. See, e.g., Hearing on S. 1940 before the

Subcomm. on Tech. & the Law of the S. Comm. on the Judiciary, 102d Cong. 4

(1992) (statement of Sen. Patrick Leahy); S. Rep. No. 104-272, at 16.

For its part, the FEC argues construing section 552(a)(6)(A) as requiring an

agency to notify a requester within 20 days whether it will give the requester the

documents it seeks would nullify other provisions of the FOIA, including the

requirement that agencies made records available “promptly,” 5 U.S.C. 

§ 552(a)(3)(A). But this misapprehends CREW’s argument, which is not that

agencies must produce all documents within 20 days, but that agencies must

within 20 days make a determination whether they will give requesters the

documents they are seeking. 

The FEC’s contention that the FOIA provision requiring agencies to assign

tracking numbers to requests and afford requesters access to information about the

status of their requests, 5 U.S.C. § 552(a)(7)(B)(ii), would be rendered superfluous

also must fail, as it too rests on the flawed view that CREW’s construction of

section 552(a)(6)(A) would require agencies to produce all responsive documents

within 20 days. Moreover, requiring agencies to estimate a date of completion, as

section 552(a)(7) requires, provides requesters with useful information, even if the

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 25 of 32
20

estimated date is outside the statutory time limits. With this information, a

requester can decide whether to invoke the statute’s constructive exhaustion or

whether to narrow its request to ensure a faster processing time. 

Finally, the FEC argues the FOIA’s provision for expedited processing,

which commands an agency to process expedited requests “as soon as

practicable,” 5 U.S.C. § 552(a)(6)(E)(iii), would make no sense because the

requirement that agencies process requests within 20 days mandates a shorter

processing time than does the phrase “as soon as practicable.” Again, however,

the FEC misapprehends the meaning of the FOIA’s expedited processing

provision. While the FOIA does not define “as soon as practicable,” the

legislative history of this provision 

makes clear that, although Congress opted not to impose

a specific deadline on agencies processing expedited

requests, its intent was to ‘give the request priority for

processing more quickly than otherwise would occur.’

Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006)

(EPIC) (quoting S. Rep. No. 104-272, at 17 (1996) (emphasis in original)). 

Accordingly, as the EPIC court concluded, “the phrase ‘as soon as practicable,’ in

the context of a provision of FOIA allowing for expedited processing, cannot be

interpreted to impose a lower burden on the agency than would otherwise exist.” 

Id. (emphasis in original). 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 26 of 32
21

D. The FEC’s Policy Arguments Present No

Persuasive Reason To Deviate From The 

FOIA’s Plain Language And Legislative 

Intent.

Having failed to demonstrate as a matter of statutory construction why the

FEC’s pre-litigation response to CREW satisfied 5 U.S.C. § 552(a)(6)(C), the FEC

falls back on policy arguments about the laudable purposes exhaustion of

administrative remedies serve and the threat of increased litigation if CREW’s

position is accepted. Neither, however, provides a persuasive reason to deviate

from the plain language and clear legislative intent behind the FOIA provision at

issue.

First, CREW does not dispute the salutary purposes served by the general

requirement to exhaust administrative remedies. In the FOIA, however, Congress

balanced those interests against the interests of requesters in having prompt access

to the documents they seek. This balance resulted in the FOIA’s constructive

exhaustion provision, which provides an exception to actual exhaustion even if the

agency will be deprived of an opportunity to review in the first instance objections

a requester may have to what the agency produced and how it conducted its

search. In this way, the FOIA serves the “interests of timely disclosure” by

“permit[ting] early ‘accrual’ of a cause of action.” Spannaus v. U.S. Dep’t of

Justice, 824 F.2d 52, 58 (D.C. Cir. 1987). As such, “[t]he FOIA is considered a

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 27 of 32
 For these reasons, the FEC’s repeated disparagement of CREW for “filing

19

suit prematurely” and thereby failing to present its complaints first to the FEC,

FEC Br. at 34, is entirely misplaced. CREW was entitled to rely on the FOIA’s

constructive exhaustion provision, and once litigation had commenced, continuing

with the administrative process would have been duplicative and a waste of

resources. Moreover, at the time CREW filed suit, the FEC had yet to produce a

single document. Accordingly, there was nothing for CREW to discuss with the

FEC’s FOIA officer and no adverse determination to appeal.

See U.S. Dep’t of Justice, Guide to the Freedom of Information Act, 743;

20

Memorandum from Janet Reno, Attorney General to the Heads of Departments

and Agencies, regarding the Freedom of Information Act (Oct. 4, 1993) (quoted in

S. Rep. No. 104-272, at 16; H.R. Rep. No. 104-795, at 13 (1996)).

22

unique statute because it recognizes a constructive exhaustion doctrine for

purposes of judicial review upon the expiration of certain relevant FOIA

deadlines.” Nurse v. Sec’y of the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C.

2002) (citing Spannaus, 824 F.2d at 58). Where, as here, a requester meets the

requirements of the FOIA’s constructive exhaustion provision, the requester is free

to proceed to litigation even if it denies the agency an opportunity to first address

the requester’s claims.19

Second, the FEC raises the specter of requesters overwhelming the courts

with lawsuits if section 552(a)(6)(C) is interpreted as requiring agencies to advise

requesters within 20 days whether or not the agencies will produce the requested

documents. But, as case law and Department of Justice guidance confirm, the 20

construction CREW advances here is one courts and agencies alike have accepted

for years. 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 28 of 32
 Department of Justice, Summary of Annual FOIA Reports for Fiscal Year 21

2010, at 3 (available at http://www.justice/gov/oip.foiapost/fy2010-arsummary.pdf). 

 List of Freedom of Information Act Cases Received in 2010 (available at 22

http://www.justice.gov/oip/cy10/received-2010.pdf). 

23

Moreover, in point of fact requesters, even those who have waited far more

than 20 days, rarely file lawsuits, and there is nothing to suggest they would do so

more frequently under CREW’s interpretation. Data compiled by the Department

of Justice indicates in Fiscal Year 2010, the entire federal government processed

600,849 requests. At the same time according to the Department, a total of 282 21

FOIA lawsuits were “received” in FY2010. Most likely the number of lawsuits 22

filed in FY2010 based on constructive exhaustion is well below the total of 282. 

In other words, the actual data does not bear out the FEC’s fears that recognizing

CREW properly invoked the FOIA’s constructive exhaustion provision will open

the floodgates to massive numbers of new FOIA lawsuits.

Finally, the facts here illustrate the FEC’s concerns are misplaced. CREW

did not file suit on the 21st day following the agency’s receipt of its FOIA request. 

Instead, it waited two and one-half months before filing suit, and did so only after

the agency repeatedly missed deadlines by which it had promised to produce

documents and a timetable for its production. At that point, with no documents in

hand, no notice of what the FEC would produce or when, CREW decided to

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 29 of 32
24

invoke the remedy Congress provided for requesters in this very situation, a

lawsuit in district court. As this chain of events illustrates, CREW did not rush

into court at the first opportunity, but instead gave the FEC multiple opportunities

to meet its responsibilities under the FOIA.

CONCLUSION

For the foregoing reasons and those set forth in CREW’s opening brief, this

Court should reverse the judgment of the district court and remand this case for

consideration of the merits of CREW’s claims.

Respectfully submitted,

 /s/ Anne L. Weismann 

Anne L. Weismann

Melanie Sloan

Citizens for Responsibility and Ethics

in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005

(202) 408-5565

Counsel for Appellant

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 30 of 32
CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

28.1(e)(2) or 32(a)(7)(B) because: 

[ X ] this brief contains [5,800] words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii). 

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: 

[ X ] this brief has been prepared in a proportionally spaced typeface using 

[Corel WordPerfect 12] in [14pt Times New Roman]; or 

[ ] this brief has been prepared in a monospaced typeface using [state 

name and version of word processing program] with [state number of 

characters per inch and name of type style]. 

Dated: July 24, 2012 /s/ Anne L. Weismann 

 Counsel for Appellant 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 31 of 32
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 24th day of July, 2012, I caused this Reply Brief 

of Appellant to be filed electronically with the Clerk of the Court using the 

CM/ECF System, which will send notice of such filing to the following registered 

CM/ECF users: 

Anthony Herman Julie A. Murray 

David B. Kolker Adina H. Rosenbaum 

Steve N. Hajjar PUBLIC CITIZEN

FEDERAL ELECTION COMMISSION LITIGATION GROUP

999 E Street, N.W. 1600 20th Street, N.W. 

Washington, D.C. 20463 Washington, D.C. 20009 

(202) 694-1650 (202) 588-1000 

Counsel for Appellee Counsel for Amicus Curiae 

 I further certify that on this 24th day of July, 2012, I caused the required 

copies of the Reply Brief of Appellant to be hand filed with the Clerk of the Court. 

 /s/ Anne L. Weismann 

 Counsel for Appellant 

USCA Case #12-5004 Document #1385201 Filed: 07/24/2012 Page 32 of 32