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 HAS NOT YET BEEN SCHEDULED 

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,

Amicus Curiae for Appellant. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

 

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 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as

follows:

A. Parties and Amici. Plaintiff in the district court and appellant in this appeal is

Citizens for Responsibility and Ethics in Washington, a non-profit corporation. 

Defendant in the district court and appellee in this appeal is the Federal Election

Commission.

There were no amici curiae in district court. Public Citizen Litigation

Group has filed notice of its intent to participate as an amicus curiae in this

appeal.

B. Rulings Under Review. The rulings under review are the order and

memorandum opinion of the district court issued on December 30, 2011. Citizens

for Responsibility and Ethics in Washington v. Federal Election Commission, No.

1:11-cv-00951-CKK (D.D.C.) (Judge Colleen Kollar-Kotelly). The district court’s

opinion is available at 2011 U.S. Dist. LEXIS 14967, and page 57 of the Joint

Appendix.

C. Related Cases. This case has not previously come before this Court. Counsel

is aware of no other related cases pending before this Court or any other court

within the meaning of D.C. Circuit Rule 28(a)(1)(c). 

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APPELLANT’S RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, plaintiff-appellant

Citizens for Responsibility and Ethics in Washington (“CREW”) submits its

corporate disclosure statement.

(a) CREW has no parent company, and no publicly-held company has a

10% or greater ownership interest in CREW.

(b) CREW is a non-profit corporation, organized under section 501(c)(3) of

the Internal Revenue Code. Through a combined approach of research, advocacy,

public education, and litigation, CREW seeks to protect the rights of citizens to be

informed about the activities of government officials and to ensuring the integrity

of those officials. Among its principle activities, CREW routinely requests

information from government agencies under the Freedom of Information Act

(“FOIA”) and pursues its rights to information under the FOIA through litigation.

CREW then disseminates, through its website and other media, both documents it

receives in response to its FOIA requests and written reports based in part on those

documents and information obtained through other administrative processes.

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TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES . . . . . . i

APPELLANT’S RULE 26.1 CORPORATE DISCLOSURE STATEMENT . . . . ii

TABLE OF CONTENTS ....... ....... ....... ....... ....... ....... . iii

TABLE OF AUTHORITIES ....... ....... ....... ....... ....... ....... v

GLOSSARY ....... ....... ....... ....... ....... ....... ....... ... viii

STATEMENT OF JURISDICTION ....... ....... ....... ....... ....... . 1

STATEMENT OF THE ISSUE.............. ....... ....... ....... ..... 1

STATUTES AND REGULATIONS ....... ....... ....... ....... ....... . 1

STATEMENT OF THE CASE ....... ....... ....... ....... ....... ..... 2

STATEMENT OF THE FACTS ....... ....... ....... ....... ....... .... 4

SUMMARY OF ARGUMENT ....... ....... ....... ....... ....... .... 12

STANDARD OF REVIEW ....... ....... ....... ....... ....... ....... 15

ARGUMENT ....... ....... ....... ....... ....... ....... ....... .... 15

I. THE FEC FAILED TO MAKE A DETERMINATION ON

CREW’S FOIA REQUEST WITHIN THE PLAIN MEANING

OF 5 U.S.C. § 552(a)(6)(A)(i) BEFORE CREW FILED SUIT . . . . 15

II. THE DISTRICT COURT’S INTERPRETATION OF WHAT 

CONSTITUTES A DETERMINATION SUFFICIENT TO

TRIGGER THE EXHAUSTION REQUIREMENT

NULLIFIES OTHER KEY PROVISIONS OF THE FOIA

AND CONFLICTS WITH THE FOIA’S PURPOSE . . . . . . . . . . . 26

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III. READING OUT OF 5 U.S.C. § 552(a)(6)(A) THE

REQUIREMENT THAT AGENCIES PROCESS FOIA

REQUESTS WITHIN 20 WORKING DAYS WILL CREATE

ENORMOUS UNCERTAINTY FOR AGENCIES AND

REQUESTERS ....... ....... ....... ....... ....... ...... 35

CONCLUSION ....... ....... ....... ....... ....... ....... ....... . . 39

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ADDENDUM

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TABLE OF AUTHORITIES

Page(s)

CASES

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

516 U.S. 152 (1996) ....... ....... ....... ....... ....... ....... 27

Bonner v. Soc. Sec. Admin., 

574 F. Supp. 2d 136 (D.D.C. 2008) ....... ....... ....... ....... . . 23

Borden v. FBI, 

1994 U.S. App. LEXIS 16157 (1st Cir. June 28, 1994) . . . . . . . . . . . . . . . 22

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

2008 U.S. Dist. LEXIS 94262 (D.D.C. Oct. 30, 2008) . . . . . . . . . . . . . . . 22

Defense of Animals v. NIH, 

543 F. Supp. 2d 83 (D.D.C. 2008) ....... ....... ....... ....... 23, 24

Love v. FBI, 

660 F. Supp. 2d 56 (D.D.C. 2009) ....... ....... ....... ....... 21, 22

Multi AG Media LLC v. Dep’t of Agric., 

515 F.3d 1224 (D.C. Cir. 2008) ....... ....... ....... ....... ..... 15

*Oglesby v. U.S. Dep’t of the Army, 

920 F.2d 57 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . 18, 19, 20, 21, 22, 23

Open America v. Watergate Special Prosecution Force, 

547 F.2d 605 (D.C. Cir. 1976) ....... ....... ....... ....... 14, 31, 32

Percy Squire Co., LLC v. FCC, 

2009 U.S. Dist. LEXIS 70555 (S.D. Ohio Aug. 7, 2009) . . . . . . . . . . . . . . 23

* Chief Authorities are Designated with an Asterisk

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Petit-Frere v. U.S. Attorney’s Office for the S.D. of Fla., 

664 F. Supp. 2d 69 (D.D.C. 2009) ....... ....... ....... ....... ... 23

*Spannaus v. U.S. Dep’t of Justice, 

824 F.2d 52 (D.C. Cir. 1987) ....... ....... ....... ....... . 18, 19, 21

Taylor v. Appleton, 

30 F.3d 1365 (11th Cir. 1994) ....... ....... ....... ....... ...... 19

United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 

484 U.S. 365 (1988) ....... ....... ....... ....... ....... ....... 26

STATUTES

5 U.S.C. § 552 ....... ....... ....... ....... ....... ....... ....... .... 1

5 U.S.C. § 552(a)(4)(B) ....... ....... ....... ....... ....... ....... .... 1

5 U.S.C. § 552(a)(6)(A) ....... ....... ....... ....... ....... ....... ... 35

5 U.S.C. § 552(a)(6)(A)(i) ....... ....... ....... ... 1, 3, 4, 12, 13, 15, 16, 17, 

18, 19, 20, 21, 27, 31, 35, 36

5 U.S.C. § 552(a)(6)(A)(ii) ....... ....... ....... ....... ....... ....... 18

5 U.S.C. § 552(a)(6)(B)(i) ....... ....... ....... ....... ....... ..... 14, 28

5 U.S.C. § 552(a)(6)(B)(ii) ....... ....... ....... ....... ....... ....... 28

5 U.S.C. § 552(a)(6)(B)(iii) ....... ....... ....... ....... ....... ....... 28

5 U.S.C. § 552(a)(6)(C)(i) ....... ....... ....... ....... ...... 14, 16, 17, 31

5 U.S.C. § 552(a)(6)(C)(ii) ....... ....... ....... ....... ....... ....... 31

28 U.S.C. § 1291 ....... ....... ....... ....... ....... ....... ....... . . 1

28 U.S.C. § 1331 ....... ....... ....... ....... ....... ....... ....... . . 1

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REGULATIONS

11 C.F.R. § 7.15(c) ....... ....... ....... ....... ....... ....... ..... 2, 5

11 C.F.R. § 7.15(d) ....... ....... ....... ....... ....... ....... ....... 5

11 C.F.R. § 201.3(c) ....... ....... ....... ....... ....... ....... .... 2, 5

11 C.F.R. § 201.4(a) ....... ....... ....... ....... ....... ....... .... 2, 5

OTHER AUTHORITIES

121 Cong. Rec. S22729 (daily ed. Dec. 18, 1975) . . . . . . . . . . . . . . . . . . . . . . . . 39

Electronic Freedom of Information Act Amendments, 

Pub. L. No. 104-231, 110 Stat. 3048 ....... ....... ....... ....... .... 27, 29

H.R. Rep. No. 92-1419 (1972) ....... ....... ....... ....... ....... . 33, 34

H.R. Rep. No. 104-795 (1996) ....... ....... ....... ....... ..... 29, 30, 32

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

S. Comm. on the Judiciary, 102d Cong. 4 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Memorandum from Janet Reno, Attorney General, to Heads of

Departments and Agencies, regarding the Freedom of Information Act

(Oct. 4, 1993) ....... ....... ....... ....... ....... ....... ....... .... 30

Pub. L. No. 90-23, 80 Stat. 383 (1966) ....... ....... ....... ....... ..... 33

Pub. L. No. 93-502, 88 Stat. 1561 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

S. Rep. No. 93-854 (1974) ....... ....... ....... ....... ....... . 33, 34, 38

S. Rep. No. 104-272 (1996) ....... ....... ....... ....... ....... 29, 30, 34

U.S. Dep’t of Justice,

Guide to the Freedom of Information Act (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 30

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GLOSSARY

CREW Citizens for Responsibility and Ethics in Washington

EFOIA Electronic Freedom of Information Act Amendments

FEC Federal Election Commission

FOIA Freedom of Information Act

JA Joint Appendix

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STATEMENT OF JURISDICTION

Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction over this timely

appeal filed on January 29, 2012, from a final judgment of the United States

District Court for the District of Columbia that was entered on December 30,

2011. The district court’s jurisdiction was based upon 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. § 1331. 

STATEMENT OF THE ISSUE

Whether the Federal Election Commission (“FEC”) made a determination

within the meaning of the Freedom of Information Act, 5 U.S.C. § 552(a)(6)(A)(i)

(“FOIA”), that required Citizens for Responsibility and Ethics in Washington

(“CREW”) to exhaust administrative remedies before filing suit in the district

court.

STATUTES AND REGULATIONS

This litigation involves the application of the FOIA, 5 U.S.C. § 552, which

has been reproduced in the Addendum to this brief.

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STATEMENT OF THE CASE

This appeal arises from a FOIA request CREW filed with the FEC seeking

three categories of records: (1) “all correspondence related to any and all FEC

business between Commissioners Matthew S. Peterson, Caroline C. Hunter, or

Donald F. McGahn II and any individual or entity outside of the FEC from the

date each commissioner took office to the present”; (2) “all calendars, agendas, or

other recordations of the schedules” of the three identified commissioners; and 

(3) “all written ex parte communications delivered to an FEC ethics officer or

Designated Agency Ethics Official” by the three named commissioners “or by

someone acting on their behalf pursuant to 11 C.F.R. §§ 7.15(c), 201.3(c),

201.4(a),” as well as “all statements setting forth the substance and circumstances

of any oral ex parte communication prepared by any of these commissioners or by

someone acting on their behalf.” JA49.

The FEC acknowledged receipt of this request one day after its submission,

JA8, ¶ 17, and the FEC and CREW had a series of communications via email and

telephone over the next several months. JA43-46, ¶¶ 3-12. As a result of those

conversations, CREW agreed to narrow the scope of its request for purposes of an

initial search by the agency, and excluded some items from its request altogether. 

JA14-15, ¶¶ 5, 8; JA44, ¶ 5. CREW also pressed the FEC to produce responsive

documents on a rolling basis. JA43-44, ¶¶ 3, 5, 6. The FEC agreed to this request

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in principle, but failed to provide CREW at any point with a date certain by which

it would begin or complete production of responsive records. JA43-46, ¶¶ 3, 11-

13.

Nearly two months after CREW submitted its request, the FEC for the first

time advised CREW it had culled an initial batch of responsive documents and

promised production within two weeks and a timetable for full disclosures within

the week. JA45, ¶ 10. When neither was forthcoming, CREW filed suit nearly

three weeks later. JA4, 46, ¶ 13. At that point, CREW had not received any

responsive records or any timetable for production. JA46, ¶ 13. At no time prior

to CREW filing suit did the FEC afford CREW a right to file an administrative

appeal. 

The FEC moved to dismiss the complaint or, alternatively, for summary

judgment, based on its seriatim production of 835 pages of documents over the

course of the month after suit was filed, with a purportedly final production just

hours before the FEC filed its motion. The FEC argued as a result of this

production CREW’s claim was moot, and further that CREW had failed to exhaust

its administrative remedies. In opposing this motion, CREW submitted a

declaration from the CREW representative who had communicated with the FEC

in the months preceding CREW’s lawsuit. JA43-47. This declaration together

with the FEC’s declarations submitted in support of its motion to dismiss or,

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alternatively, for summary judgment confirm that CREW never received a single

document or a timetable for production of documents before filing suit. 

Nevertheless, the district court held CREW had failed to exhaust

administrative remedies and granted summary judgment for the FEC. JA74. The

court found the FEC had made a determination within the meaning of 5 U.S.C. 

§ 552(a)(6)(A)(i) based on the FEC’s “response prior to May 23, 2011,” the date

suit was filed. JA73. The court identified this determination as consisting of an

initial conversation between the parties just two days after CREW submitted its

request, in which the FEC sought clarification from CREW on the scope of its

request, and the FEC’s subsequent “work[] . . . with CREW to clarify and narrow

the scope of the requests, then to perform searches, to review, and ultimately to

produce responsive documents.” Id. As described by the district court, the FEC

made this “determination” over a several month period and communicated this

“determination” in a variety of ways. In none of those communications, however,

did the FEC commit to provide CREW specific documents by a date certain or

advise CREW of its right to file an administrative appeal. 

STATEMENT OF THE FACTS

On March 7, 2011, CREW sent by facsimile a FOIA request to the FEC

seeking: (1) all correspondence related to any and all FEC business between

Commissioners Matthew S. Peterson, Caroline C. Hunter, or Donald F. McGahn II

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and any individual or entity outside of the FEC from the date each commissioner

took office to the present; (2) all calendars, agendas, or other recordations of the

schedules of these three FEC commissioners; (3) all written ex parte

communications delivered to an FEC ethics officer or Designated Agency Ethics

Official (collectively “ethics official”) by Commissioners Peterson, Hunter, and

McGahn or by someone acting on their behalf pursuant to 11 C.F.R. §§ 7.15(c),

201.3(c), 201.4(a); and (4) all statements setting forth the substance and

circumstances of any oral ex parte communication prepared by any of these

commissioners or someone acting on their behalf and delivered to an ethics

official pursuant to 11 C.F.R. §§ 7.15(d), 201.3(c), 201.4(a). JA49. CREW

requested any attachments to these records, and further requested that for any

email, the FEC produce “metadata and/or headers” showing the email address of

the sender and any recipient, the names and email addresses of any “bcc:”

recipients, and any data regarding the time and date the email was sent, received,

or opened. JA50. CREW noted it welcomed the opportunity to discuss with the

FEC whether and to what extent the request could be narrowed or modified to

better enable the FEC to process it within the FOIA’s deadlines. Id.

The following day, CREW received an email from the FEC acknowledging

receipt of CREW’s request and advising the FEC had granted CREW’s request for

a fee waiver. JA14, ¶ 4. 

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Thereafter followed a four-week period of discussions between the parties

concerning the scope of CREW’s request, a predicate to any search the agency was

to conduct. On March 9, 2011, FEC Assistant General Counsel Nicole St. Louis

Matthis contacted CREW Senior Counsel Adam Rappaport “to clarify what

materials CREW was requesting,” and to seek a narrowing of the scope of

CREW’s request. JA17-18, ¶ 2. The parties agreed the FEC would conduct “an

initial document review” that was more limited than the larger review CREW’s

request on its face would have required, id., but did not at that time determine the

scope of the initial review. Mr. Rappaport requested that the FEC produce

documents on a rolling basis, to which Ms. St. Louis Matthis agreed. JA43-44, 

¶ 3.

Ms. St. Louis Matthis and Mr. Rappaport spoke again on two separate

occasions during the following week to determine the specific scope of the

documents the FEC would review in its initial search for responsive records. 

JA18, ¶ 3; JA44, ¶¶ 4-5. In one conversation on March 18, Mr. Rappaport agreed

CREW would narrow parts of the request and limit the FEC’s initial search to

certain documents, after which – based on CREW’s review of what the FEC

produced – CREW would decide whether to request additional documents. JA44,

¶ 5. In at least one of these conversations, Mr. Rappaport confirmed with Ms. St.

Louis Matthis the FEC’s willingness to produce documents on a rolling basis. 

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JA18, ¶ 3; JA44, ¶ 4. While these communications concerning the scope of

CREW’s request were occurring, Mr. Rappaport understood the FEC had not

started its search for responsive documents, and would not be producing any

documents soon. JA44, ¶ 6.

In late March, Mr. Rappaport and Ms. St. Louis Matthis exchanged further

emails and phone calls over a ten-day period regarding the clarification and initial

narrowing of CREW’s request. JA18, ¶¶ 4-5; JA44-45, ¶¶ 5, 7. They reached an

agreement that Mr. Rappaport memorialized in a March 29 letter to Ms. St. Louis

Matthis. JA25-26. Under that agreement, CREW excluded certain files from the

FEC’s initial search, but explained that by agreeing to this procedure CREW was

not narrowing the scope of its request. JA25. CREW also explained that after it

reviewed any records the FEC produced as part of the initial search, CREW would

clarify further whether additional searches were needed to fulfill the request, id.,

and agreed to exclude entirely several categories of documents from its request. 

JA25-26. In a follow-up discussion on April 1, CREW further clarified the scope

of the FEC’s initial search, which it memorialized in an April 4 email. JA18-19 

¶ 6; JA21; JA45, ¶ 8. At no point during any of these communications did Ms. St.

Louis Matthis suggest any records would be forthcoming immediately. JA44-45,

¶¶ 6-9.

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By April 29, having heard nothing further from the FEC, CREW’s counsel

contacted Ms. St. Louis Matthis for an update. JA45, ¶ 9. While Ms. St. Louis

Matthis and Mr. Rappaport again discussed the FEC producing documents on a

rolling basis, the FEC did not identify dates by which it would begin and complete

any production. Id. Ms. St. Louis Matthis withheld from Mr. Rappaport the fact

that she was about to leave the FEC. Id.

On May 4, Katie A. Higginbothom, an attorney in the FEC’s Office of

General Counsel, telephoned Mr. Rappaport and advised him she was taking over

CREW’s FOIA request. JA45, ¶ 10. Ms. Higginbothom informed Mr. Rappaport

the FEC was still in the process of searching for documents responsive to CREW’s

request. JA27-28, ¶ 3. Ms. Higginbothom also said she had just received access

to a first set of responsive material consisting of 200 documents, and was waiting

to receive more documents from the commissioners. JA45, ¶ 10. Ms.

Higginbothom suggested she might be able to provide an initial response within

two weeks, and stated she anticipated having a timetable for full disclosure by the

end of that week (i.e., by May 6, 2011). Id.; JA27-28, ¶ 3.

By May 9 of the following week, when the FEC had neither contacted

CREW with a promised timetable nor produced any documents, Mr. Rappaport

sought an update from Ms. Higginbothom. JA45-46, ¶ 11; JA28, ¶ 4. Ms.

Higginbothom claimed the FEC was in receipt of thousands of documents for

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which it was in the process of conducting an initial agency review, and was still

unable to commit to a date by which it would begin production to CREW. JA45-

46, ¶ 11. When Mr. Rappaport again contacted Ms. Higginbothom on May 13

(Friday of that week), Ms. Higginbothom said CREW’s request was “where it was

before,” and added she was still waiting to receive more documents. JA46, ¶ 12. 

As for the first set of documents, Ms. Higginbothom said they were in “first level

review,” after which they would go through a second level of review, to be

followed by a further review by the commissioners. Id. Ms. Higginbothom again

could not provide a date when the FEC would begin production of these or any

other documents. JA28, ¶ 5.

CREW waited another ten days. Having heard nothing further from the

FEC and not having received any documents responsive to its request, CREW

filed its complaint in this matter on May 23, 2011, more than two and one-half

months after submitting its FOIA request to the FEC. JA4-10. Three weeks later,

on June 15, the FEC made a first production of documents to CREW. JA28, ¶ 6.

The accompanying letter stated:

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 final production of records, you 

will receive a decision letter that will include 

information regarding your appeal rights. Today’s

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letter does not constitute a final agency decision, 

and thus is not subject to appeal.

JA38 (emphasis added). CREW received a similar letter dated June 21, 2011, with

a second production of responsive records. JA28, ¶ 7; JA40-42. Once again the

FEC asserted the letter “does not constitute a final agency decision,” and

characterized its production as “not subject to appeal.” JA41. CREW received the

FEC’s third and purportedly final production on June 23, a month after CREW had

sued the agency and just hours before the FEC filed its motion to dismiss or,

alternatively, for summary judgment. JA28-29, ¶ 8; JA31-33. For the first time,

this letter advised CREW of its right to file an administrative appeal. JA33. 

In all, the FEC produced 835 pages of documents. JA46, ¶ 14. For each of

the productions, the FEC withheld records or portions of records pursuant to

various FOIA exemptions, and withheld other portions of records as “nonresponsive.” JA46, ¶¶ 14-15. The FEC withheld an unknown number of records

in their entirety pursuant to Exemption 6. JA31-33. The FEC further withheld

portions of 219 pages of records pursuant to Exemptions 2, 4, 6, and 7(C), and

portions of 25 pages of records deemed “non-responsive.” JA46, ¶¶ 14-15. 

In addition, the FEC did not respond to all categories of requested records

and failed to produce or otherwise account for a number of requested records. 

Despite CREW’s specific request for parts of metadata and headers, including

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metadata showing which commissioner received a particular email, the FEC failed

to produce any such information and failed to provide any explanation for this

withholding. JA46-47, ¶ 16. The FEC also failed to produce all attachments to

the records, which CREW specifically had requested. Id. In addition, even

though many of the emails provided by the FEC indicate they were replied to, the

FEC did not produce all the replies. Id. Also missing from the production are

certain categories of records CREW requested, including calendars and agendas of

two of the three named FEC commissioners. JA47, ¶ 17.

The FEC’s purportedly final decision and production also violated its

explicit agreement with CREW on the procedure for complying with the request. 

Under that agreement, the FEC was to provide CREW an opportunity to review

the records following the FEC’s initial search, after which CREW would clarify

whether additional searches were needed to fulfill the request. JA25-26. In

violation of this agreement, the FEC instead provided only what it had located as a

result of its initial search, which the FEC characterized as a final response. JA28-

29, ¶ 8. The FEC also denied CREW any practical opportunity to review the

initial production and clarify whether additional searches were needed. Just four

hours after the FEC sent CREW its purportedly final production, the FEC filed a

motion to dismiss CREW’s lawsuit or, in the alternative, for summary judgment. 

JA2, Docket Entry 4. 

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SUMMARY OF ARGUMENT

The district court below adopted a radical interpretation of the Freedom of

Information Act that, if upheld, will undermine the statutory scheme and bring

mass confusion to the FOIA process for both requesters and responding agencies. 

Specifically, the court ruled the FEC’s initial inquiry to CREW about the scope of

its FOIA request coupled with the agency’s course of conduct over the next

several months, which included unfulfilled promises and a refusal to identify what

the agency would be releasing and when, constituted a determination within the

meaning of 5 U.S.C. § 552(a)(6)(A)(i). This determination, the court concluded,

triggered a requirement that CREW exhaust administrative remedies before filing

suit. 

Neither the language of the FOIA nor its structure supports this outcome,

especially considering the congressional intent behind the FOIA’s constructive

exhaustion provision and the safety valves the FOIA provides agencies that can

not meet its rigid time-frame for processing requests. First, in concluding the FEC

had made a determination that required CREW to exhaust administrative remedies,

the district court plucked a phrase of the FOIA out of context – that dictating that

the agency “determine within 20 days . . . whether to comply with such request” –

and ignored the entire statutory provision of which it was a part, thereby robbing

the isolated phrase of its intended meaning. Congress dictated that within 20

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 21 of 75
13

working days of receiving a FOIA request responding agencies not only determine

whether to comply with the request, but also notify the requester of that

determination, the reasons for the determination, and the requester’s right to

appeal an adverse determination to the agency head. 5 U.S.C. § 552(a)(6)(A)(i). 

Imposing a requirement that the agency provide the requester the reasons

for the agency determination makes clear Congress intended the determination to

flow from the actual processing of a request, be substantive in nature, and

therefore susceptible to administrative review if adverse. Yet the events that form

the determination the court found here do not include a substantive determination

on the merits of CREW’s request based on the FEC’s actual processing of that

request. Moreover, at no time in the “determination” process identified by the

district court did the FEC provide CREW an opportunity to pursue an

administrative appeal.

Second, the district court’s interpretation of what constitutes a

determination that triggers the requirement to exhaust administrative remedies

conflicts with, and makes a nullity of, other key provisions of the FOIA. When

Congress extended from ten to twenty working days the time in which responding

agencies must make a determination on a FOIA request, it also afforded those

agencies facing certain “unusual circumstances,” defined specifically by the

statutory amendment, an extension of up to ten additional working days in which

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 22 of 75
14

to provide their determinations. 5 U.S.C. § 552(a)(6)(B)(i). If the district court’s

decision stands, however, this provision would be rendered completely

unnecessary as an agency could obtain an extension of an indeterminate number of

days simply by advising the requester the agency was working on, or planned to

work on, the request, without committing to produce any specific documents by

any specific date.

Similarly, Congress afforded courts the ability to grant an extension of an

agency’s time to respond to a FOIA request beyond what the FOIA mandates upon

a showing from the agency of “exceptional circumstances,” as defined by the

statute, “and that the agency is exercising due diligence in responding to the

request. . .” 5 U.S.C. § 552(a)(6)(C)(i). Known as an Open America stay, this

safety valve permits a court “to retain jurisdiction and allow the agency additional

time to complete its review of the records.” Id. Again, however, the district

court’s approach would render this provision a nullity, as agencies could obtain as

much time as they desired, and divest courts of jurisdiction, simply by making a

so-called “determination” of their intent to comply with their obligations under the

FOIA without satisfying the statute’s Open America requirements.

Third, the district court’s decision creates enormous uncertainty in the FOIA

process, as it leaves agencies and requesters with no clear sense of what

constitutes a “determination” sufficient to trigger a requester’s obligation to

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 23 of 75
15

exhaust administrative remedies. Here, the district court failed to identify a date

specific on which the FEC had made such a determination, referring instead to a

period of time during which the agency negotiated with CREW over the scope of

the request and the initial search the agency was to conduct. The imprecision in

the court’s ruling makes it impossible to extract a usable measure of the precise

point in time at which an agency makes a determination. Unless overturned, this

decision will defeat Congress’ intent to bring speed and certainty to the FOIA

process by imposing specific, narrow deadlines within which agencies must act,

and providing for constructive exhaustion after the passage of a specified period of

time. 

STANDARD OF REVIEW

This Court reviews district court grants of summary judgment de novo. 

Multi AG Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008).

ARGUMENT

I. THE FEC FAILED TO MAKE A DETERMINATION ON 

CREW’S FOIA REQUEST WITHIN THE PLAIN MEANING

OF 5 U.S.C. § 552(a)(6)(A)(i) BEFORE CREW FILED SUIT.

This dispute centers on the nature of the determination the FEC was

required to make under section 552(a)(6)(A)(i) of the FOIA in order to trigger the

statutory requirement that CREW exhaust administrative remedies before filing

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 24 of 75
 The range of substantive decisions susceptible to administrative review 1

includes threshold issues such as entitlement to a fee waiver and expedition, in

addition to decisions to withhold specified material under claims of exemption. 

No such threshold issues are at play here. By contrast, a decision merely to

process a request is not susceptible to administrative review, as there is nothing for

the reviewing body to consider and decide. 

16

suit, 5 U.S.C. § 552(a)(6)(C)(i). Under section 552(a)(6)(A)(i), each agency

receiving a FOIA request must:

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 . . .

On its face, this provision imposes three specific requirements that must be

met within twenty days: (1) the agency must determine whether to comply with

the request; (2) the agency must provide the requester the reasons for the agency

determination; and (3) the agency must advise the requester of its right to an

administrative appeal from an adverse determination. The language and structure

of this provision inform the nature of the determination the agency must make

within the specified time, i.e., “whether to comply with [the] request.” The

determination must be substantive in nature based on the outcome of the agency’s

actual processing of the request, as only such a determination would yield

“reasons” susceptible to administrative review.1

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 25 of 75
17

Here, the district court declined to accord § 552(a)(6)(A)(i) its plain

meaning, instead assigning it a meaning derived from a phrase of this provision

coupled with a portion of the constructive exhaustion provision, 5 U.S.C. 

§ 552(a)(6)(C)(i), which states: 

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.

From this the district court reasoned an agency need only notify a requester within

twenty days “that the agency intends to comply” and thereafter “produce the

documents ‘promptly.’” JA67. The court found this later condition satisfied even

though the FEC took several months to provide CREW with requested documents. 

Id.

The plain language of § 552(a)(6)(A)(i) clearly requires more, notably

processing of the request at issue followed by notification of the reasons for the

agency’s determination of what it will and will not release, as well as notification

of the requester’s right to file an administrative appeal from any adverse decision. 

The district court’s interpretation essentially reads these requirements out of the

statute, and instead imposes on an agency only the burden to advise the requester

it “intends to comply.” And even as to that duty, it is not at all clear whether the

district court was referring to an intent to comply with the request or, more

broadly, a generalized intent to comply with the FOIA. Under the express

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 26 of 75
 The district court also maintained that Oglesby v. U.S. Dep’t of the Army,

2

920 F.2d 57 (D.C. Cir. 1990), confirms its interpretation of what constitutes a

determination. In support of this proposition the court cited a passage of the

Oglesby opinion that merely echoes the language of the FOIA, including the

requirement that the responding agency provide “the reasons for its decision” and

notice of appeal rights. JA67 (citing Oglesby, 920 F.2d at 65). 

18

language of the statute, however, neither standing alone constitutes a

determination that triggers the exhaustion requirements.2

Precedent in this Circuit reinforces this interpretation. In Spannaus v. U.S.

Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987), the court confronted the issue of

whether the statute of limitations barred a FOIA plaintiff’s lawsuit, filed more than

seven years after he submitted his FOIA requests to the agency. To resolve this

question, the court had to ascertain when the plaintiff’s cause of action first

accrued, which in turn depended on whether and when the plaintiff had

constructively exhausted his administrative remedies. Id. at 59. 

As the Spannaus court noted, the FOIA contains two “‘time limit

provisions’ that trigger constructive exhaustion” – (1) the specified time for

making a determination, 5 U.S.C. § 552(a)(6)(A)(i); and (2) the specified time for

deciding an administrative appeal, 5 U.S.C. § 552(a)(6)(A)(ii). 825 F.2d at 58. In

the case before it, the court found the agency had failed to make the initial

determination required by § 552(a)(6)(A)(i). Id. at 59. Of particular relevance

here, the court reached this conclusion after factoring in the agency’s initial

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 27 of 75
 See also Taylor v. Appleton, 30 F.3d 1365, 1368, 1369 (11th Cir. 1994) 3

(agency acknowledgment of receiving FOIA request and advising request had

been forwarded to the appropriate IRS office did not constitute a determination

that triggered FOIA’s administrative exhaustion requirement).

19

response, made within the then-applicable ten-day statutory period, which “merely

acknowledged the request and informed appellant that the request would be

forwarded to FBI Headquarters, as well.” Id. at 59 n.9. This initial

acknowledgment coupled with the agency directing the request to the proper

agency component for processing did not alter the court’s conclusion that the

agency had not made a determination within the meaning of § 552(a)(6)(A)(i)

sufficient to trigger the administrative exhaustion requirements. Id.

3

This Circuit’s subsequent decision in Oglesby v. U.S. Dep’t of the Army,

920 F.2d 57 (D.C. Cir. 1990), further supports the conclusion that 

§ 552(a)(6)(A)(i) requires an agency to do more than merely acknowledge a

request and provide a vague commitment to process the request, as the FEC did

here. The issue before the Oglesby court was whether the FOIA still requires

actual exhaustion of administrative remedies when an agency responds outside of

the required time period, but before a requester has filed suit. The court first

examined its Spannaus decision, which it characterized as involving a failure by

the agency in question “to make a determination” within the then-statutorily

required period of ten days. 920 F.2d at 63. Thus, Oglesby accepted the notion

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 28 of 75
20

that merely acknowledging a request and sending it on for processing does not

constitute a “determination” within the meaning of the FOIA. 

This was made all the more clear by the Oglesby court’s evaluation of the

response from the State Department, one of the six agencies in question. The

court evaluated two letters the State Department had sent the requester: a first

letter agreeing to process the request, and a subsequent letter informing the

requester the agency had found no records responsive to his request. 920 F.2d at

67. The court characterized only the second letter as “an ‘adverse determination’

under 5 U.S.C. § 552(a)(6)(A)(i), because appellant did not receive the documents

he requested.” Id. Notwithstanding this substantive response, the Oglesby court

held this letter still did not trigger the exhaustion requirement because it failed to

advise the requester of “his right to appeal the negative reference to this inquiry.”

Id. 

As to the FBI, the court noted its initial response “merely informed

appellant that the FBI was processing the request,” but declined to opine on

whether this constituted a “determination” under the FOIA because the FBI had

sent additional letters before the requester filed suit, including a letter

denominated by the FBI as a “‘final’ determination” that included notice of the

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 29 of 75
 Similarly, the court refrained from deciding whether an initial letter from 4

the CIA indicating the agency would go forward with a search was an adequate

response to trigger the FOIA’s administrative exhaustion requirements because the

CIA made a final determination on the merits of the request before the requester

filed suit. 920 F.2d at 69.

21

requester’s right to file an administrative appeal. Id. at 69. Thus, while Oglesby 4

may appear to leave open the question of whether an agency’s promise to process

a request triggers the exhaustion requirement, the court’s treatment of the

responses by the State Department and its acceptance of the ruling in Spannaus

suggest strongly the answer is no.

Here, to support its truncated interpretation of what constitutes a

determination under the FOIA, the district court cited to several district court cases

finding that requesters had failed to exhaust administrative remedies. None of

these cases provides persuasive authority to depart from this Circuit’s approach in

Spannaus. For example, while the district court here found “persuasive” the

reasoning in Love v. FBI, 660 F. Supp. 2d 56 (D.D.C. 2009), JA63, that reasoning

suffers from the same flaw as that of the district court, namely it construes

§ 552(a)(6)(A)(i) as requiring only that an agency determine whether it will

comply with a request, and ignores the requirements that the agency provide

reasons and a right to an administrative appeal. Moreover, at least one agency at

issue in Love – the FBI – completed its search for responsive documents, notified

the requester it had found none, and advised the requester of its administrative

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 30 of 75
 Another responding agency, the Executive Office of United States 5

Attorneys, merely indicated it would comply with the request, while a third

advised the request would be handled “as expeditiously as possible.” 660 F. Supp.

2d at 58. The court in Love erroneously treated these responses as determinations

under the FOIA, relying on its assessment that only a “‘reply from the agency

indicating that it is responding to [the] request’” is required. 660 F. Supp. 2d at 59

(quoting Oglesby, 920 F.2d at 61).

See, e.g., Borden v. FBI, 1994 U.S. App. LEXIS 16157, *1 (1st Cir. June

6

28, 1994).

22

appeal rights, all actions that go well beyond mere notification. 660 F. Supp. 2d at

57. 

5

In another case on which the court below relied, Cabreja v. U.S. Citizenship

& Immigration Servs., 2008 U.S. Dist. LEXIS 94262 (D.D.C. Oct. 30, 2008), the

court dismissed a lawsuit brought by a requester who had failed to exhaust

administrative remedies after the agency in question sent a letter acknowledging

receipt of the request, informing the requester the request was in the “complex”

track, and advising that unless the requester submitted within 30 days “a specific

certification and his father’s signature . . . the request would be administratively

closed.” 2008 U.S. Dist. LEXIS 94262, *1. Dismissal clearly was appropriate for

the entirely separate reason that having failed to provide the requested

certification, the requester did not perfect its request.6

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 31 of 75
 They include Percy Squire Co., LLC v. FCC, 2009 U.S. Dist. LEXIS

7

70555 (S.D. Ohio Aug. 7, 2009), and Bonner v. Soc. Sec. Admin., 574 F. Supp. 2d

136 (D.D.C. 2008). The court expressly refrained from relying on the key case

relied on below by the FEC, Petit-Frere v. U.S. Attorney’s Office for the S.D. of

Fla., 664 F. Supp. 2d 69 (D.D.C. 2009), after finding the FEC had provided a

response deemed sufficient by the Oglesby court. JA65. The most notable feature

of Petit-Frere is not its initial holding that the agency’s acknowledgment of the

request and assertion processing the request could take nine months constituted a

“determination,” but the court’s subsequent decision to reopen the matter after the

defendant agency notified the court the factual basis for the dismissal was

inaccurate. The agency conceded its acknowledgment letter was not a final

agency response subject to administrative appeal, a concession that led the court to

note its “subsequent additional review of the relevant documents and the case law

demonstrates that the dismissal was erroneous.” Petit-Frere, No. 09-1732 (RWR),

Order Reopening Case at 1 (D.D.C. Dec. 4, 2009). Curiously the district court

here ignored the subsequent history in Petit-Frere, even though it was brought to

the court’s attention. See JA54-56.

23

At bottom neither these cases nor the others cited by the district court offer 7

a sound basis to read out of the FOIA the requirement that an agency make a

determination, based on actual processing of the requested records, that includes

the basis for the determination and provide appeal rights. Indeed, District Court

Judge Kollar-Kotelly’s opinion in Defense of Animals v. NIH, 543 F. Supp. 2d 83

(D.D.C. 2008), which she cited below, actually undermines her interpretation here. 

In that case, she found the two defendant agencies’ responses did not trigger the

FOIA’s exhaustion requirement because they failed to advise the requester of its

right to pursue an administrative appeal until after suit was filed. Id. at 97. 

Moreover, even though the agencies had responded in part on the merits with a

promise to continue processing the remainder of the responsive documents, Judge

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 32 of 75
 The district court made a point of differentiating the FEC’s response here – 8

an indication it would comply – from a response indicating a request is being

processed. JA71, n.3.

24

Kollar-Kotelly deemed those responses insufficient to constitute a determination

because “[d]efendants did not indicate their decision to comply or not comply with

Plaintiff’s entire request until after Plaintiff filed suit . . .” Id. 

Here, as in Defense of Animals, the FEC neither indicated a decision to

comply with the entirety of CREW’s request – something that still has not been

forthcoming – nor provided CREW any right to administratively appeal before

CREW filed suit. Instead, after initially acknowledging receipt of CREW’s

request, the FEC engaged in a series of communications during which CREW

discussed narrowing its request for purposes of an initial search only, and CREW

agreed to exclude specified categories of documents from its request altogether. 

The FEC awaited the outcome of those discussions before actually beginning to

process CREW’s request. Moreover, while the FEC agreed to produce responsive

8

documents on a rolling basis, it never did so before CREW filed suit. At no time

did the FEC commit to provide CREW with any specific document by any specific

date, and at no time did the FEC provide CREW with a date by which the agency

would complete processing CREW’s request. Indeed, the FEC failed to meet the

few suggested target dates it provided for processing some aspects of CREW’s

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 33 of 75
25

request, JA3-4, ¶¶ 10-13, leaving CREW with no confidence any final response

would be forthcoming in the near future.

Thus, by the time CREW filed suit it had obtained from the FEC only a

commitment to process some aspects of CREW’s request by some unspecified

date, with a further search dependent on the fruits of the FEC’s initial search. To

date, the FEC has yet to comply with the entirety of CREW’s request. The FEC

has not produced or otherwise accounted for whole categories of records CREW

requested and the agency’s motion to dismiss or, alternatively, for summary

judgment was based on the results of the preliminary search it conducted, without

providing CREW an opportunity to request further documents under the parties’

agreed-upon process. See JA25-26.

Further, at no time prior to CREW filing suit did the FEC provide CREW

with any administrative appeal rights. Even after CREW sued and the agency

began the process of producing responsive documents, the FEC made clear 

CREW did not yet have any administrative appeal rights to pursue. The two

letters accompanying the FEC’s interim production of documents on June 15 and

June 21, 2011, stated expressly: “Today’s letter does not constitute a final agency 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 34 of 75
 Not until June 23, 2011, when the FEC produced what it characterized as 9

“the remaining agency records we retrieved that are responsive to your request,”

did the FEC advise CREW of its right to appeal any adverse FOIA determination. 

JA32. Notably, this letter was sent hours before the FEC filed its motion to

dismiss or, alternatively, for summary judgment.

26

decision, and thus is not subject to appeal.” JA38, 41. Accordingly, with no 9

actual “determination” on the merits of its request, CREW properly invoked the

district court’s jurisdiction based on its constructive exhaustion of administrative

remedies.

II. THE DISTRICT COURT’S INTERPRETATION OF WHAT

CONSTITUTES A DETERMINATION SUFFICIENT TO

TRIGGER THE EXHAUSTION REQUIREMENT NULLIFIES

OTHER KEY PROVISIONS OF THE FOIA AND CONFLICTS

WITH THE FOIA’S PURPOSE.

Under cardinal rules of statutory construction, a statute must be read as a

whole and its parts interpreted consistent with the broader statutory context and

purpose. As Justice Scalia has explained,

Statutory construction . . . is a holistic endeavor. A

provision that may seem ambiguous in isolation is

often clarified by the remainder of the statutory

scheme – because the same terminology is used

elsewhere in a context that makes its meaning

clear . . . or because only one of the permissible

meanings produces a substantive effect that is

compatible with the rest of the law.

United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988)

(citations omitted). Under this principle, the meaning of a statutory phrase is

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 35 of 75
27

derived from the overall structure and purpose of the statute at issue. See, e.g.,

Bhd. of Locomotive Eng’rs v. Atchison, T. & S.F.R.R., 516 U.S. 152, 157-58

(1996) (statutory provision at issue “must be understood in accord with [the

statute’s] objective” and examining the statutory scheme). 

The district court’s interpretation of what constitutes a “determination”

sufficient to trigger the FOIA’s administrative exhaustion requirement violates this

principle, as it nullifies other key provisions of the FOIA and sanctions delay in

situations where Congress intended to afford requesters direct access to the district

courts. In two key amendments to the FOIA, Congress provided a safety valve for

agencies facing circumstances in which, even with due diligence, they cannot

complete processing a request within the statutory time frame. Under the district

court’s interpretation of what constitutes a determination, however, neither

provision would retain any utility.

In 1996, as part of the Electronic Freedom of Information Act Amendments,

Pub. L. No. 104-231, 110 Stat. 3048 (“EFOIA”), Congress extended from ten to

twenty the number of working days in which agencies must make the

determination prescribed by § 552(a)(6)(A)(i). At the same time, Congress

retained and expanded upon the portion of this subsection that affords agencies

facing “unusual circumstances” an opportunity to extend this period by up to an 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 36 of 75
28

additional ten days, provided the agencies meet certain conditions. 5 U.S.C. 

§ 552(a)(6)(B)(i). The amendments define “unusual circumstances” to 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

(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)(I)-(III). In addition, agencies seeking to invoke the

“unusual circumstances” provision must provide the requester written notice

“setting forth the unusual circumstances . . . and the date on which a determination

is expected to be dispatched.” Id., § 552(a)(6)(B)(i). As amended, this written

notice cannot extend the response time by more than ten additional days unless

agencies afford requesters “an opportunity to limit the scope of the request . . . or

an opportunity to arrange with the agency an alternative time frame for processing

the request or a modified request.” Id. and § 552(a)(6)(B)(i)-(ii).

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 37 of 75
29

The legislative history of this provision confirms Congress’ understanding it

was extending by ten days the time in which agencies must complete their

processing of FOIA requests. Hearings in the years leading up to the passage of

the amendments revealed agencies had largely failed to produce records within the

ten-day time limit. 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) (“The FOIA’s statutory time limit for agencies to respond is

ten days. But requesters wait weeks, months and years for information from the

government.”).

After the EFOIA amendments were introduced, Senator Leahy, sponsor of

the bill in the Senate, explained that the legislation “contains provisions intended

to help agencies comply with statutory limits by doubling the time allowed for a

determination on requests for records . . . [m]any Federal departments and

agencies [were] often unable to meet the Act’s ten-day time limit for processing

FOIA requests . . .” S. Rep. No. 104-272, at 16 (1996) (emphasis added). 

Similarly, Rep. Randy Tate, sponsor of the EFOIA in the House of

Representatives, explained the ten-day extension to make a determination was

addressing the situation where “many agencies[] failed to process FOIA requests

within the deadlines required by law.” H.R. Rep. No. 104-795, at 13 (1996)

(emphasis added). Congress also took note of then-Attorney General Janet Reno’s

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 38 of 75
 This remains the interpretation of the Department of Justice; its most 10

recent guide to the FOIA provides, “[a]n agency’s response that merely

acknowledges receipt of a request does not constitute a ‘determination’ under the

FOIA in that it neither denies records nor grants the right to appeal the agency’s

determination.” U.S. Dep’t of Justice, Guide to the Freedom of Information Act,

743 (2009) (citations omitted).

30

acknowledgment that many departments and agencies were “often unable to meet

the Act’s ten-day time limit for processing FOIA requests, and some agencies . . .

maintain large FOIA backlogs greatly exceeding the mandated time period.”

Memorandum from Janet Reno, Attorney General, to 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) (emphasis added).10

Through this provision Congress established a detailed scheme by which

agencies can obtain additional time to process requests, but only if they meet

specified conditions and only for specified additional periods of time. Under the

district court’s approach here, however, agencies need never invoke the “unusual

circumstances” provision of the FOIA, as they could unilaterally grant themselves

an indefinite extension simply by indicating a willingness to comply in some

fashion with the FOIA, the so-called “determination” recognized below. An

agency could ignore with impunity the requirement to satisfy any of the three

enumerated circumstances that qualify as “unusual” and grant itself an extension

for no particular reason at all. Further, agencies would have no obligation to

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 39 of 75
 Their name is derived from Open America v. Watergate Special 11

Prosecution Force, 547 F.2d 605, 615-16 (D.C. Cir. 1976), which construed the

reference in the FOIA to “exceptional circumstances” as including where agencies

are facing large backlogs even with the exercise of “due diligence.”

31

provide requesters a specified date by which their requests will be satisfied and

instead, as happened here, could simply make vague promises to produce some

subset of documents at some point in the future. 

With the 1996 amendments, Congress added another safety valve that

clarified the authority of a district court to grant agencies additional time to

complete their review of records. In a FOIA lawsuit brought by a requester that

has constructively exhausted its administrative remedies, 5 U.S.C. 

§ 552(a)(6)(C)(i) authorizes the district court to “retain jurisdiction and allow the

agency additional time to complete its review of the records.” The court may do

so, however, only when the agency is facing “exceptional circumstances,” defined

as excluding “a delay that results from a predictable agency workload . . . unless

the agency demonstrates reasonable progress in reducing its backlog of pending

requests.” Id. at § 552(a)(6)(C)(ii). Known as Open America stays, these safety 11

valves are available only to agencies that meet specified conditions. Moreover,

they do not deprive a court of jurisdiction obtained through a requester’s

constructive exhaustion, but permit a court to retain jurisdiction while the agency

completes processing the records responsive to the request. Id.

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 40 of 75
32

Again, Congress intended these changes to address the problem of delayed

disclosure of requested information. Both the House and Senate reports explain

the legislation as a response to delays in processing requests and producing

records within the statutory time limit. The House Committee on Government

Reform and Oversight identified agency failure “to process FOIA requests within

the deadlines required by law” as one of the most significant problems with the

FOIA. H.R. Rep. No. 104-795, at 13 (emphasis added). The Senate Committee on

the Judiciary explained, “[t]he purposes of the bill are to ensure and improve

public access to agency records and information . . .” Id. at 9. These statements

confirm that through the 1996 amendments to the FOIA, Congress intended to

address delays in producing requested information and documents beyond the ten

days the FOIA afforded agencies to process requests.

The interpretation of “determination” advanced by the FEC and accepted by

the district court below, which requires a requester to refrain from filing suit and

instead pursue administrative remedies whenever they are finally made available,

contravenes congressional intent and robs the congressionally created Open

America stay of any utility. Agencies would be relieved of the obligation to

demonstrate any “exceptional circumstances,” and could grant themselves

unilateral stays even when not facing scarce resources and unexpected snags. 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 41 of 75
33

Beyond these specific provisions, the evolution of the FOIA and the

provision at issue here underscore Congress’ intent that agencies produce records

on a specific, certain, and firm timetable, with an immediate judicial remedy when

they fail to meet the processing deadline. As originally enacted in 1966, the FOIA

had no clear schedule for producing requested records. Pub. L. No. 90-23, 80

Stat. 383 (1966). Instead, the statute required only that agencies facing requests

for records “make the records promptly available,” while providing requesters

access to federal courts to enjoin improper withholdings. Id. at § (a)(3).

Hearings five years after the FOIA’s passage confirmed the absence of any

time limits for the production of records had resulted in extensive “‘foot-dragging’

delays” by agencies in producing requested information. H.R. Rep. No. 92-1419,

at 16-17 (1972). “Nearly all agencies” were moving so slowly in responding to

requests “that the long delay often [became] tantamount to denial.” Id. at 20. The

House Committee on Government Operations identified “bureaucratic delay in

responding to an individual’s request for information” as the first major problem

area with the statute, with “delaying tactics of the Federal bureaucracies” acting as

“a major deterrent to more widespread use of the act.” Id. at 8. More hearings

over the next two years confirmed a problem of delays in agency responses of

“epidemic proportion.” S. Rep. No. 93-854, at 175 (1974).

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 42 of 75
34

The statutory provisions at issue in this litigation were born out of this

widespread problem. In 1974, Congress amended the FOIA to add the

predecessors to the provisions at issue here: the “determination” provision, Pub.

L. No. 93-502, 88 Stat. 1561, 1562-63 (1974), and the constructive exhaustion

provision, id. at 1563. Congress intended these amendments to address agency

failure to provide requested records in a timely manner. The legislative reports

focused on the problems caused by delayed production of documents and

information, especially for “someone attempting to meet a deadline on any

research project or news story where the requested information is needed on a

timely basis.” H.R. Rep. No. 92-1419, at 16. Congress recognized that for a

reporter, delay in those circumstances “can often moot the story being investigated

and will ultimately blunt the reporter’s desire to utilize the provisions of the Act.”

S. Rep. No. 93-854, at 175. 

Each of the provisions at issue is part of a carefully crafted statutory scheme

that imposes on agencies an obligation to process FOIA requests within very rigid

time limits in recognition of the principle that delay in access “can mean no access

at all.” S. Rep. No. 104-272, at 32. At the same time, Congress recognized these

time limits may not always be realistic, and wove into the FOIA certain escape

hatches available only for agencies meeting specified conditions. 

Correspondingly, for requesters facing unexcused delays or inaction Congress

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 43 of 75
35

provided a safety valve through the FOIA’s constructive exhaustion provision. 

Construing the “determination” requirement of § 552(a)(6)(A)(i) as requiring a

responding agency only to advise the requester the agency intends in some

unidentified way to comply with at least some part of the request and requiring the

requester in these circumstances to forego a lawsuit until the agency finally

completes processing the request seriously disturb this scheme and the

congressional intent behind it. Accordingly, the district court’s interpretation

violates the cannon of statutory construction that statutory provisions are to be

construed consistent with their broader statutory context and purpose. 

III. READING OUT OF 5 U.S.C. § 552(a)(6)(A) THE

REQUIREMENT THAT AGENCIES PROCESS FOIA

REQUESTS WITHIN 20 WORKING DAYS WILL 

CREATE ENORMOUS UNCERTAINTY FOR AGENCIES 

AND REQUESTERS.

Left undisturbed, the district court’s decision here will create enormous

uncertainty in the FOIA process, as it leaves agencies and requesters with no clear

sense of what constitutes a “determination” sufficient to trigger a requester’s

obligation to exhaust administrative remedies. Rather than pick a date specific on

which the FEC made a determination, the district court referred to a period of time

“prior to May 23, 2011” – the date on which CREW filed suit – during which the

following occurred:

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 44 of 75
 The district court’s reference to the FEC “work[ing] diligently with 12

CREW to clarify and narrow the scope of the requests, then to perform searches, to

review, and ultimately to produce responsive records,” JA73, is misleading to the

extent it suggests the FEC actually performed searches, reviewed documents, and

made decisions to produce specific documents prior to CREW filing suit. As even

the district court conceded, the FEC’s responses “indicated it would comply with

the request, not that the request was merely being ‘processed.’” JA71, n.3. Thus,

the district court must have been referring to the FEC’s intent to perform searches,

review documents, and make decisions to produce specific documents, most of

which was not memorialized and did not occur prior to CREW filing suit. And, in

fact, to date the FEC still has not searched for or produced all records responsive

to CREW’s request. See infra at 10.

36

The FEC provided notice within two days that it intended

to comply with CREW’s request, and worked diligently

with CREW to clarify and narrow the scope of the

requests, then to perform searches, to review, and

ultimately to produce responsive records. 

JA73. All this, the court held, “was a sufficient response as required by the 12

FOIA.” Id. 

The imprecision in the court’s ruling makes it impossible to extract a usable

measure of the precise point in time at which an agency makes the determination

required by § 552(a)(6)(A)(i). By identifying a continuum of conduct – none of

which included processing CREW’s request and producing or otherwise

identifying specific responsive documents – the district court’s opinion leaves

requesters and agencies alike guessing as to what specifically constitutes a

determination and when it is made. 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 45 of 75
37

Not only is the district court’s approach unworkable, but it relies on facts

that, on their face, fall far short of an agency determination. Much of the conduct

the court identified as comprising the “determination” involved communications

between CREW and the FEC regarding the scope of the initial search the agency

would conduct. As the FEC’s own declarations submitted in support of its motion

to dismiss or for summary judgment confirm, CREW did not provide a final

clarification of the scope of the FEC’s initial search until April 4, 2011. See JA18-

19, ¶ 6. By May 4, 2011, the FEC still was in the process of searching for

responsive records, a status that continued after CREW filed suit. JA27-28, ¶¶ 3,

5. During this “determination” period the FEC was unable (or unwilling) to

provide a timetable for producing documents, id., or identify what, if any, specific

documents it would produce, and in the end its productions appear to have been

manipulated so as to coincide with its legal obligation to respond to the complaint.

As these facts make clear, during the time leading up to this lawsuit the FEC

was not making a specific determination on how it was responding to CREW’s

FOIA request that it communicated to CREW (together with the reasons for the

determination and notice of administrative appeal rights) on a specific date. 

Instead, CREW was communicating to the agency CREW’s willingness to narrow

the scope of its request and the initial search the agency was to conduct, and

pressing the FEC to produce documents on a rolling basis. Under no reasonable

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 46 of 75
38

interpretation of the FOIA do CREW’s actions and the agency’s inactions

constitute a “determination” that triggered CREW’s obligation to exhaust

administrative remedies.

The intent of the FOIA’s constructive exhaustion provision reinforces this

conclusion. Congress added that provision to bring certainty and speed to the

process. As the Senate Report on the bill explains,

an agency with records in hand should not be able to

use indeterminable delays to avoid embarrassment,

to delay the impact of disclosure, or to wear down 

and discourage the requester. Therefore, the time

limits set in section 1(c) of S. 24543 will mark the

exhaustion of administrative remedies, allowing the

filing of lawsuits after a specified period of time,

even if the agency has not yet reached a determination whether to release the information requested.

S. Rep. No. 93-854, at 178. The district court’s approach here undermines this

intent, as it removes both certainty and speed. Agencies could delay production

for months or even years with nothing more than a promise to comply. 

Particularly in cases like this one, where the requested documents were

expected to reveal a cozy relationship between outside parties having business

before the FEC and the three Republican FEC commissioners, agencies have an

incentive to delay production “to avoid embarrassment [or] to delay the impact of

disclosure.” Id. The FOIA’s constructive exhaustion provision prevents such

delay and ensures requesters will get the speedy access to documents Congress

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 47 of 75
39

intended. As Senator Kennedy explained describing the intent of the 1974

amendments to the FOIA:

By setting administrative deadlines, prescribing certain

information to be contained in responses, and generally

giving the FOIA teeth, the amendments were intended

to assist the public in its efforts to disgorge information . . .

121 Cong. Rec. S22729 (daily ed. Dec. 18, 1975). Only by reversing the judgment

of the district court can this Court give full effect to this intent.

CONCLUSION

For the foregoing reasons, 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 #1378024 Filed: 06/11/2012 Page 48 of 75
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 [9,196] 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: June 11, 2012 /s/ Anne L. Weismann 

 Counsel for Appellant 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 49 of 75
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 11th day of June, 2012, I caused this 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 PUBLIC CITIZEN

Steve N. Hajjar LITIGATION GROUP

FEDERAL ELECTION COMMISSION 1600 20th Street, N.W. 

999 E Street, N.W. Washington, D.C. 20009 

Washington, D.C. 20463 (202) 588-1000 

(202) 694-1650 

Counsel for Appellee Counsel for Amicus Curiae 

 I further certify that on this 11th day of June, 2012, I caused the required 

copies of the 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 #1378024 Filed: 06/11/2012 Page 50 of 75
ADDENDUM 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 51 of 75
Add. i 

TABLE OF CONTENTS 

Page 

5 U.S.C. § 552 ................................................................................................... Add. 1 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 52 of 75
Add. 1 

5 U.S.C. § 552: Freedom of Information Act 

(a) Each agency shall make available to the public information as follows: 

(1) Each agency shall separately state and currently publish in the Federal 

Register for the guidance of the public— 

(A) descriptions of its central and field organization and the 

established places at which, the employees (and in the case of a 

uniformed service, the members) from whom, and the methods 

whereby, the public may obtain information, make submittals or 

requests, or obtain decisions; 

(B) statements of the general course and method by which its 

functions are channeled and determined, including the nature and 

requirements of all formal and informal procedures available; 

(C) rules of procedure, descriptions of forms available or the places at 

which forms may be obtained, and instructions as to the scope and 

contents of all papers, reports, or examinations; 

(D) substantive rules of general applicability adopted as authorized by 

law, and statements of general policy or interpretations of general 

applicability formulated and adopted by the agency; and 

(E) each amendment, revision, or repeal of the foregoing. Except to 

the extent that a person has actual and timely notice of the terms 

thereof, a person may not in any manner be required to resort to, or be 

adversely affected by, a matter required to be published in the Federal 

Register and not so published. For the purpose of this paragraph, 

matter reasonably available to the class of persons affected thereby is 

deemed published in the Federal Register when incorporated by 

reference therein with the approval of the Director of the Federal 

Register. 

(2) Each agency, in accordance with published rules, shall make available 

for public inspection and copying— 

(A) final opinions, including concurring and dissenting opinions, as 

well as orders, made in the adjudication of cases; 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 53 of 75
Add. 2 

(B) those statements of policy and interpretations which have been 

adopted by the agency and are not published in the Federal Register; 

(C) administrative staff manuals and instructions to staff that affect a 

member of the public; 

(D) copies of all records, regardless of form or format, which have 

been released to any person under paragraph (3) and which, because 

of the nature of their subject matter, the agency determines have 

become or are likely to become the subject of subsequent requests for 

substantially the same records; and 

(E) a general index of the records referred to under subparagraph (D); 

unless the materials are promptly published and copies offered for 

sale. For records created on or after November 1, 1996, within one 

year after such date, each agency shall make such records available, 

including by computer telecommunications or, if computer 

telecommunications means have not been established by the agency, 

by other electronic means. To the extent required to prevent a clearly 

unwarranted invasion of personal privacy, an agency may delete 

identifying details when it makes available or publishes an opinion, 

statement of policy, interpretation, staff manual, instruction, or copies 

of records referred to in subparagraph (D). However, in each case the 

justification for the deletion shall be explained fully in writing, and 

the extent of such deletion shall be indicated on the portion of the 

record which is made available or published, unless including that 

indication would harm an interest protected by the exemption in 

subsection (b) under which the deletion is made. If technically 

feasible, the extent of the deletion shall be indicated at the place in the 

record where the deletion was made. Each agency shall also maintain 

and make available for public inspection and copying current indexes 

providing identifying information for the public as to any matter 

issued, adopted, or promulgated after July 4, 1967, and required by 

this paragraph to be made available or published. Each agency shall 

promptly publish, quarterly or more frequently, and distribute (by sale 

or otherwise) copies of each index or supplements thereto unless it 

determines by order published in the Federal Register that the 

publication would be unnecessary and impracticable, in which case 

the agency shall nonetheless provide copies of such index on request 

at a cost not to exceed the direct cost of duplication. Each agency shall 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 54 of 75
Add. 3 

make the index referred to in subparagraph (E) available by computer 

telecommunications by December 31, 1999. A final order, opinion, 

statement of policy, interpretation, or staff manual or instruction that 

affects a member of the public may be relied on, used, or cited as 

precedent by an agency against a party other than an agency only if— 

(i) it has been indexed and either made available or published as 

provided by this paragraph; or 

(ii) the party has actual and timely notice of the terms thereof. 

(3) 

(A) Except with respect to the records made available under 

paragraphs (1) and (2) of this subsection, and except as provided in 

subparagraph (E), each agency, upon any request for records which 

(i) reasonably describes such records and 

(ii) is made in accordance with published rules stating the time, 

place, fees (if any), and procedures to be followed, shall make 

the records promptly available to any person. 

(B) In making any record available to a person under this paragraph, 

an agency shall provide the record in any form or format requested by 

the person if the record is readily reproducible by the agency in that 

form or format. Each agency shall make reasonable efforts to maintain 

its records in forms or formats that are reproducible for purposes of 

this section. 

(C) In responding under this paragraph to a request for records, an 

agency shall make reasonable efforts to search for the records in 

electronic form or format, except when such efforts would 

significantly interfere with the operation of the agency’s automated 

information system. 

(D) For purposes of this paragraph, the term “search” means to 

review, manually or by automated means, agency records for the 

purpose of locating those records which are responsive to a request. 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 55 of 75
Add. 4 

(E) An agency, or part of an agency, that is an element of the 

intelligence community (as that term is defined in section 3(4) of the 

National Security Act of 1947 (50 U.S.C. 401a (4))) shall not make 

any record available under this paragraph to— 

(i) any government entity, other than a State, territory, 

commonwealth, or district of the United States, or any 

subdivision thereof; or 

(ii) a representative of a government entity described in clause 

(i). 

(4) 

(A) 

(i) In order to carry out the provisions of this section, each 

agency shall promulgate regulations, pursuant to notice and 

receipt of public comment, specifying the schedule of fees 

applicable to the processing of requests under this section and 

establishing procedures and guidelines for determining when 

such fees should be waived or reduced. Such schedule shall 

conform to the guidelines which shall be promulgated, pursuant 

to notice and receipt of public comment, by the Director of the 

Office of Management and Budget and which shall provide for 

a uniform schedule of fees for all agencies. 

(ii) Such agency regulations shall provide that— 

(I) fees shall be limited to reasonable standard charges 

for document search, duplication, and review, when 

records are requested for commercial use; 

(II) fees shall be limited to reasonable standard charges 

for document duplication when records are not sought for 

commercial use and the request is made by an 

educational or noncommercial scientific institution, 

whose purpose is scholarly or scientific research; or a 

representative of the news media; and 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 56 of 75
Add. 5 

(III) for any request not described in (I) or (II), fees shall 

be limited to reasonable standard charges for document 

search and duplication. In this clause, the term “a 

representative of the news media” means any person or 

entity that gathers information of potential interest to a 

segment of the public, uses its editorial skills to turn the 

raw materials into a distinct work, and distributes that 

work to an audience. In this clause, the term “news” 

means information that is about current events or that 

would be of current interest to the public. Examples of 

news-media entities are television or radio stations 

broadcasting to the public at large and publishers of 

periodicals (but only if such entities qualify as 

disseminators of “news”) who make their products 

available for purchase by or subscription by or free 

distribution to the general public. These examples are not 

all-inclusive. Moreover, as methods of news delivery 

evolve (for example, the adoption of the electronic 

dissemination of newspapers through 

telecommunications services), such alternative media 

shall be considered to be news-media entities. A 

freelance journalist shall be regarded as working for a 

news-media entity if the journalist can demonstrate a 

solid basis for expecting publication through that entity, 

whether or not the journalist is actually employed by the 

entity. A publication contract would present a solid basis 

for such an expectation; the Government may also 

consider the past publication record of the requester in 

making such a determination. 

(iii) Documents shall be furnished without any charge or at a 

charge reduced below the fees established under clause (ii) if 

disclosure of the information is in the public interest because it 

is likely to contribute significantly to public understanding of 

the operations or activities of the government and is not 

primarily in the commercial interest of the requester. 

(iv) Fee schedules shall provide for the recovery of only the 

direct costs of search, duplication, or review. Review costs shall 

include only the direct costs incurred during the initial 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 57 of 75
Add. 6 

examination of a document for the purposes of determining 

whether the documents must be disclosed under this section and 

for the purposes of withholding any portions exempt from 

disclosure under this section. Review costs may not include any 

costs incurred in resolving issues of law or policy that may be 

raised in the course of processing a request under this section. 

No fee may be charged by any agency under this section— 

(I) if the costs of routine collection and processing of the 

fee are likely to equal or exceed the amount of the fee; or 

(II) for any request described in clause (ii) (II) or (III) of 

this subparagraph for the first two hours of search time or 

for the first one hundred pages of duplication. 

(v) No agency may require advance payment of any fee unless 

the requester has previously failed to pay fees in a timely 

fashion, or the agency has determined that the fee will exceed 

$250. 

(vi) Nothing in this subparagraph shall supersede fees 

chargeable under a statute specifically providing for setting the 

level of fees for particular types of records. 

(vii) In any action by a requester regarding the waiver of fees 

under this section, the court shall determine the matter de novo: 

Provided, That the court’s review of the matter shall be limited 

to the record before the agency. 

(viii) An agency shall not assess search fees (or in the case of a 

requester described under clause (ii)(II), duplication fees) under 

this subparagraph if the agency fails to comply with any time 

limit under paragraph (6), if no unusual or exceptional 

circumstances (as those terms are defined for purposes of 

paragraphs (6)(B) and (C), respectively) apply to the processing 

of the request. 

(B) On complaint, the district court of the United States in the district 

in which the complainant resides, or has his principal place of 

business, or in which the agency records are situated, or in the District 

of Columbia, has jurisdiction to enjoin the agency from withholding 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 58 of 75
Add. 7 

agency records and to order the production of any agency records 

improperly withheld from the complainant. In such a case the court 

shall determine the matter de novo, and may examine the contents of 

such agency records in camera to determine whether such records or 

any part thereof shall be withheld under any of the exemptions set 

forth in subsection (b) of this section, and the burden is on the agency 

to sustain its action. In addition to any other matters to which a court 

accords substantial weight, a court shall accord substantial weight to 

an affidavit of an agency concerning the agency’s determination as to 

technical feasibility under paragraph (2)(C) and subsection (b) and 

reproducibility under paragraph (3)(B). 

(C) Notwithstanding any other provision of law, the defendant shall 

serve an answer or otherwise plead to any complaint made under this 

subsection within thirty days after service upon the defendant of the 

pleading in which such complaint is made, unless the court otherwise 

directs for good cause shown. 

[(D) Repealed. Pub. L. 98–620, title IV, § 402(2),Nov. 8, 1984, 98 

Stat. 3357.] 

(E) 

(i) The court may assess against the United States reasonable 

attorney fees and other litigation costs reasonably incurred in 

any case under this section in which the complainant has 

substantially prevailed. 

(ii) For purposes of this subparagraph, a complainant has 

substantially prevailed if the complainant has obtained relief 

through either— 

(I) a judicial order, or an enforceable written agreement 

or consent decree; or 

(II) a voluntary or unilateral change in position by the 

agency, if the complainant’s claim is not insubstantial. 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 59 of 75
Add. 8 

(F) 

(i) Whenever the court orders the production of any agency 

records improperly withheld from the complainant and assesses 

against the United States reasonable attorney fees and other 

litigation costs, and the court additionally issues a written 

finding that the circumstances surrounding the withholding 

raise questions whether agency personnel acted arbitrarily or 

capriciously with respect to the withholding, the Special 

Counsel shall promptly initiate a proceeding to determine 

whether disciplinary action is warranted against the officer or 

employee who was primarily responsible for the withholding. 

The Special Counsel, after investigation and consideration of 

the evidence submitted, shall submit his findings and 

recommendations to the administrative authority of the agency 

concerned and shall send copies of the findings and 

recommendations to the officer or employee or his 

representative. The administrative authority shall take the 

corrective action that the Special Counsel recommends. 

(ii) The Attorney General shall— 

(I) notify the Special Counsel of each civil action 

described under the first sentence of clause (i); and 

(II) annually submit a report to Congress on the number 

of such civil actions in the preceding year. 

(iii) The Special Counsel shall annually submit a report to 

Congress on the actions taken by the Special Counsel under 

clause (i). 

(G) In the event of noncompliance with the order of the court, the 

district court may punish for contempt the responsible employee, and 

in the case of a uniformed service, the responsible member. 

(5) Each agency having more than one member shall maintain and make 

available for public inspection a record of the final votes of each member in 

every agency proceeding. 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 60 of 75
Add. 9 

(6) 

(A) Each agency, upon any request for records made under paragraph 

(1), (2), or (3) of this subsection, shall— 

(i) 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; and 

(ii) make a determination with respect to any appeal within 

twenty days (excepting Saturdays, Sundays, and legal public 

holidays) after the receipt of such appeal. If on appeal the denial 

of the request for records is in whole or in part upheld, the 

agency shall notify the person making such request of the 

provisions for judicial review of that determination under 

paragraph (4) of this subsection. The 20-day period under 

clause (i) shall commence on the date on which the request is 

first received by the appropriate component of the agency, but 

in any event not later than ten days after the request is first 

received by any component of the agency that is designated in 

the agency’s regulations under this section to receive requests 

under this section. The 20-day period shall not be tolled by the 

agency except— 

(I) that the agency may make one request to the requester 

for information and toll the 20-day period while it is 

awaiting such information that it has reasonably 

requested from the requester under this section; or 

(II) if necessary to clarify with the requester issues 

regarding fee assessment. In either case, the agency’s 

receipt of the requester’s response to the agency’s request 

for information or clarification ends the tolling period. 

(B) 

(i) In unusual circumstances as specified in this subparagraph, 

the time limits prescribed in either clause (i) or clause (ii) of 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 61 of 75
Add. 10 

subparagraph (A) may be extended by written notice to the 

person making such request setting forth the unusual 

circumstances for such extension and the date on which a 

determination is expected to be dispatched. No such notice shall 

specify a date that would result in an extension for more than 

ten working days, except as provided in clause (ii) of this 

subparagraph. 

(ii) With respect to a request for which a written notice under 

clause (i) extends the time limits prescribed under clause (i) of 

subparagraph (A), the agency shall notify the person making 

the request if the request cannot be processed within the time 

limit specified in that clause and shall provide the person an 

opportunity to limit the scope of the request so that it may be 

processed within that time limit or an opportunity to arrange 

with the agency an alternative time frame for processing the 

request or a modified request. To aid the requester, each agency 

shall make available its FOIA Public Liaison, who shall assist 

in the resolution of any disputes between the requester and the 

agency. Refusal by the person to reasonably modify the request 

or arrange such an alternative time frame shall be considered as 

a factor in determining whether exceptional circumstances exist 

for purposes of subparagraph (C). 

(iii) As used in this subparagraph, “unusual circumstances” 

means, but only to the extent reasonably necessary to the proper 

processing of the particular requests— 

(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 

(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 

USCA Case #12-5004 Document #1378024 Filed: 06/11/2012 Page 62 of 75
Add. 11 

among two or more components of the agency having 

substantial subject-matter interest therein. 

(iv) Each agency may promulgate regulations, pursuant to 

notice and receipt of public comment, providing for the 

aggregation of certain requests by the same requestor, or by a 

group of requestors acting in concert, if the agency reasonably 

believes that such requests actually constitute a single request, 

which would otherwise satisfy the unusual circumstances 

specified in this subparagraph, and the requests involve clearly 

related matters. Multiple requests involving unrelated matters 

shall not be aggregated. 

(C) 

(i) Any person making a request to any agency for records 

under paragraph (1), (2), or (3) of this subsection shall be 

deemed to have exhausted his administrative remedies with 

respect to such request if the agency fails to comply with the 

applicable time limit provisions of this paragraph. If the 

Government can show exceptional circumstances exist and that 

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. 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. Any notification of denial of any 

request for records under this subsection shall set forth the 

names and titles or positions of each person responsible for the 

denial of such request. 

(ii) For purposes of this subparagraph, the 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. 

(iii) 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) under clause (ii) after being 

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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 for 

purposes of this subparagraph. 

(D) 

(i) Each agency may promulgate regulations, pursuant to notice 

and receipt of public comment, providing for multitrack 

processing of requests for records based on the amount of work 

or time (or both) involved in processing requests. 

(ii) Regulations under this subparagraph may provide a person 

making a request that does not qualify for the fastest multitrack 

processing an opportunity to limit the scope of the request in 

order to qualify for faster processing. 

(iii) This subparagraph shall not be considered to affect the 

requirement under subparagraph (C) to exercise due diligence. 

(E) 

(i) Each agency shall promulgate regulations, pursuant to notice 

and receipt of public comment, providing for expedited 

processing of requests for records— 

(I) in cases in which the person requesting the records 

demonstrates a compelling need; and 

(II) in other cases determined by the agency. 

(ii) Notwithstanding clause (i), regulations under this 

subparagraph must ensure— 

(I) that a determination of whether to provide expedited 

processing shall be made, and notice of the determination 

shall be provided to the person making the request, 

within 10 days after the date of the request; and 

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Add. 13 

(II) expeditious consideration of administrative appeals 

of such determinations of whether to provide expedited 

processing. 

(iii) An agency shall process as soon as practicable any request 

for records to which the agency has granted expedited 

processing under this subparagraph. Agency action to deny or 

affirm denial of a request for expedited processing pursuant to 

this subparagraph, and failure by an agency to respond in a 

timely manner to such a request shall be subject to judicial 

review under paragraph (4), except that the judicial review shall 

be based on the record before the agency at the time of the 

determination. 

(iv) A district court of the United States shall not have 

jurisdiction to review an agency denial of expedited processing 

of a request for records after the agency has provided a 

complete response to the request. 

(v) For purposes of this subparagraph, the term “compelling 

need” means— 

(I) that a failure to obtain requested records on an 

expedited basis under this paragraph could reasonably be 

expected to pose an imminent threat to the life or 

physical safety of an individual; or 

(II) with respect to a request made by a person primarily 

engaged in disseminating information, urgency to inform 

the public concerning actual or alleged Federal 

Government activity. 

(vi) A demonstration of a compelling need by a person making 

a request for expedited processing shall be made by a statement 

certified by such person to be true and correct to the best of 

such person’s knowledge and belief. 

(F) In denying a request for records, in whole or in part, an agency 

shall make a reasonable effort to estimate the volume of any requested 

matter the provision of which is denied, and shall provide any such 

estimate to the person making the request, unless providing such 

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Add. 14 

estimate would harm an interest protected by the exemption in 

subsection (b) pursuant to which the denial is made. 

(7) Each agency shall— 

(A) establish a system to assign an individualized tracking number for 

each request received that will take longer than ten days to process 

and provide to each person making a request the tracking number 

assigned to the request; and 

(B) establish a telephone line or Internet service that provides 

information about the status of a request to the person making the 

request using the assigned tracking number, including— 

(i) the date on which the agency originally received the request; 

and 

(ii) an estimated date on which the agency will complete action 

on the request. 

(b) This section does not apply to matters that are— 

(1) 

(A) specifically authorized under criteria established by an Executive 

order to be kept secret in the interest of national defense or foreign 

policy and 

(B) are in fact properly classified pursuant to such Executive order; 

(2) related solely to the internal personnel rules and practices of an agency; 

(3) specifically exempted from disclosure by statute (other than section 552b

of this title), if that statute— 

(A) 

(i) requires that the matters be withheld from the public in such 

a manner as to leave no discretion on the issue; or 

(ii) establishes particular criteria for withholding or refers to 

particular types of matters to be withheld; and 

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Add. 15 

(B) if enacted after the date of enactment of the OPEN FOIA Act of 

2009, specifically cites to this paragraph. 

(4) trade secrets and commercial or financial information obtained from a 

person and privileged or confidential; 

(5) inter-agency or intra-agency memorandums or letters which would not 

be available by law to a party other than an agency in litigation with the 

agency; 

(6) personnel and medical files and similar files the disclosure of which 

would constitute a clearly unwarranted invasion of personal privacy; 

(7) records or information compiled for law enforcement purposes, but only 

to the extent that the production of such law enforcement records or 

information 

(A) could reasonably be expected to interfere with enforcement 

proceedings, 

(B) would deprive a person of a right to a fair trial or an impartial 

adjudication, 

(C) could reasonably be expected to constitute an unwarranted 

invasion of personal privacy, 

(D) could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or 

authority or any private institution which furnished information on a 

confidential basis, and, in the case of a record or information 

compiled by criminal law enforcement authority in the course of a 

criminal investigation or by an agency conducting a lawful national 

security intelligence investigation, information furnished by a 

confidential source, 

(E) would disclose techniques and procedures for law enforcement 

investigations or prosecutions, or would disclose guidelines for law 

enforcement investigations or prosecutions if such disclosure could 

reasonably be expected to risk circumvention of the law, or 

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Add. 16 

(F) could reasonably be expected to endanger the life or physical 

safety of any individual; 

(8) contained in or related to examination, operating, or condition reports 

prepared by, on behalf of, or for the use of an agency responsible for the 

regulation or supervision of financial institutions; or 

(9) geological and geophysical information and data, including maps, 

concerning wells. Any reasonably segregable portion of a record shall be 

provided to any person requesting such record after deletion of the portions 

which are exempt under this subsection. The amount of information deleted, 

and the exemption under which the deletion is made, shall be indicated on 

the released portion of the record, unless including that indication would 

harm an interest protected by the exemption in this subsection under which 

the deletion is made. If technically feasible, the amount of the information 

deleted, and the exemption under which the deletion is made, shall be 

indicated at the place in the record where such deletion is made. 

(c) 

(1) Whenever a request is made which involves access to records described 

in subsection (b)(7)(A) and— 

(A) the investigation or proceeding involves a possible violation of 

criminal law; and 

(B) there is reason to believe that 

(i) the subject of the investigation or proceeding is not aware of its 

pendency, and 

(ii) disclosure of the existence of the records could reasonably be 

expected to interfere with enforcement proceedings, the agency may, 

during only such time as that circumstance continues, treat the records 

as not subject to the requirements of this section. 

(2) Whenever informant records maintained by a criminal law enforcement 

agency under an informant’s name or personal identifier are requested by a 

third party according to the informant’s name or personal identifier, the 

agency may treat the records as not subject to the requirements of this 

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Add. 17 

section unless the informant’s status as an informant has been officially 

confirmed. 

(3) Whenever a request is made which involves access to records maintained 

by the Federal Bureau of Investigation pertaining to foreign intelligence or 

counterintelligence, or international terrorism, and the existence of the 

records is classified information as provided in subsection (b)(1), the Bureau 

may, as long as the existence of the records remains classified information, 

treat the records as not subject to the requirements of this section. 

(d) This section does not authorize withholding of information or limit the 

availability of records to the public, except as specifically stated in this section. 

This section is not authority to withhold information from Congress. 

(e) 

(1) On or before February 1 of each year, each agency shall submit to the 

Attorney General of the United States a report which shall cover the 

preceding fiscal year and which shall include— 

(A) the number of determinations made by the agency not to comply 

with requests for records made to such agency under subsection (a) 

and the reasons for each such determination; 

(B) 

(i) the number of appeals made by persons under subsection 

(a)(6), the result of such appeals, and the reason for the action 

upon each appeal that results in a denial of information; and 

(ii) a complete list of all statutes that the agency relies upon to 

authorize the agency to withhold information under subsection 

(b)(3), the number of occasions on which each statute was 

relied upon, a description of whether a court has upheld the 

decision of the agency to withhold information under each such 

statute, and a concise description of the scope of any 

information withheld; 

(C) the number of requests for records pending before the agency as 

of September 30 of the preceding year, and the median and average 

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Add. 18 

number of days that such requests had been pending before the agency 

as of that date; 

(D) the number of requests for records received by the agency and the 

number of requests which the agency processed; 

(E) the median number of days taken by the agency to process 

different types of requests, based on the date on which the requests 

were received by the agency; 

(F) the average number of days for the agency to respond to a request 

beginning on the date on which the request was received by the 

agency, the median number of days for the agency to respond to such 

requests, and the range in number of days for the agency to respond to 

such requests; 

(G) based on the number of business days that have elapsed since each 

request was originally received by the agency— 

(i) the number of requests for records to which the agency has 

responded with a determination within a period up to and 

including 20 days, and in 20-day increments up to and 

including 200 days; 

(ii) the number of requests for records to which the agency has 

responded with a determination within a period greater than 200 

days and less than 301 days; 

(iii) the number of requests for records to which the agency has 

responded with a determination within a period greater than 300 

days and less than 401 days; and 

(iv) the number of requests for records to which the agency has 

responded with a determination within a period greater than 400 

days; 

(H) the average number of days for the agency to provide the granted 

information beginning on the date on which the request was originally 

filed, the median number of days for the agency to provide the granted 

information, and the range in number of days for the agency to 

provide the granted information; 

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Add. 19 

(I) the median and average number of days for the agency to respond 

to administrative appeals based on the date on which the appeals 

originally were received by the agency, the highest number of 

business days taken by the agency to respond to an administrative 

appeal, and the lowest number of business days taken by the agency to 

respond to an administrative appeal; 

(J) data on the 10 active requests with the earliest filing dates pending 

at each agency, including the amount of time that has elapsed since 

each request was originally received by the agency; 

(K) data on the 10 active administrative appeals with the earliest filing 

dates pending before the agency as of September 30 of the preceding 

year, including the number of business days that have elapsed since 

the requests were originally received by the agency; 

(L) the number of expedited review requests that are granted and 

denied, the average and median number of days for adjudicating 

expedited review requests, and the number adjudicated within the 

required 10 days; 

(M) the number of fee waiver requests that are granted and denied, 

and the average and median number of days for adjudicating fee 

waiver determinations; 

(N) the total amount of fees collected by the agency for processing 

requests; and 

(O) the number of full-time staff of the agency devoted to processing 

requests for records under this section, and the total amount expended 

by the agency for processing such requests. 

(2) Information in each report submitted under paragraph (1) shall be 

expressed in terms of each principal component of the agency and for the 

agency overall. 

(3) Each agency shall make each such report available to the public 

including by computer telecommunications, or if computer 

telecommunications means have not been established by the agency, by 

other electronic means. In addition, each agency shall make the raw 

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Add. 20 

statistical data used in its reports available electronically to the public upon 

request. 

(4) The Attorney General of the United States shall make each report which 

has been made available by electronic means available at a single electronic 

access point. The Attorney General of the United States shall notify the 

Chairman and ranking minority member of the Committee on Government 

Reform and Oversight of the House of Representatives and the Chairman 

and ranking minority member of the Committees on Governmental Affairs 

and the Judiciary of the Senate, no later than April 1 of the year in which 

each such report is issued, that such reports are available by electronic 

means. 

(5) The Attorney General of the United States, in consultation with the 

Director of the Office of Management and Budget, shall develop reporting 

and performance guidelines in connection with reports required by this 

subsection by October 1, 1997, and may establish additional requirements 

for such reports as the Attorney General determines may be useful. 

(6) The Attorney General of the United States shall submit an annual report 

on or before April 1 of each calendar year which shall include for the prior 

calendar year a listing of the number of cases arising under this section, the 

exemption involved in each case, the disposition of such case, and the cost, 

fees, and penalties assessed under subparagraphs (E), (F), and (G) of 

subsection (a)(4). Such report shall also include a description of the efforts 

undertaken by the Department of Justice to encourage agency compliance 

with this section. 

(f) For purposes of this section, the term— 

(1) “agency” as defined in section 551 (1) of this title includes any executive 

department, military department, Government corporation, Government 

controlled corporation, or other establishment in the executive branch of the 

Government (including the Executive Office of the President), or any 

independent regulatory agency; and 

(2) “record” and any other term used in this section in reference to 

information includes— 

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Add. 21 

(A) any information that would be an agency record subject to the 

requirements of this section when maintained by an agency in any 

format, including an electronic format; and 

(B) any information described under subparagraph (A) that is 

maintained for an agency by an entity under Government contract, for 

the purposes of records management. 

(g) The head of each agency shall prepare and make publicly available upon 

request, reference material or a guide for requesting records or information from 

the agency, subject to the exemptions in subsection (b), including— 

(1) an index of all major information systems of the agency; 

(2) a description of major information and record locator systems maintained 

by the agency; and 

(3) a handbook for obtaining various types and categories of public 

information from the agency pursuant to chapter 35 of title 44, and under 

this section. 

(h) 

(1) There is established the Office of Government Information Services 

within the National Archives and Records Administration. 

(2) The Office of Government Information Services shall— 

(A) review policies and procedures of administrative agencies under 

this section; 

(B) review compliance with this section by administrative agencies; 

and 

(C) recommend policy changes to Congress and the President to 

improve the administration of this section. 

(3) The Office of Government Information Services shall offer mediation 

services to resolve disputes between persons making requests under this 

section and administrative agencies as a non-exclusive alternative to 

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Add. 22 

litigation and, at the discretion of the Office, may issue advisory opinions if 

mediation has not resolved the dispute. 

(i) The Government Accountability Office shall conduct audits of administrative 

agencies on the implementation of this section and issue reports detailing the 

results of such audits. 

(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official 

of such agency (at the Assistant Secretary or equivalent level). 

(k) The Chief FOIA Officer of each agency shall, subject to the authority of the 

head of the agency— 

(1) have agency-wide responsibility for efficient and appropriate compliance 

with this section; 

(2) monitor implementation of this section throughout the agency and keep 

the head of the agency, the chief legal officer of the agency, and the 

Attorney General appropriately informed of the agency’s performance in 

implementing this section; 

(3) recommend to the head of the agency such adjustments to agency 

practices, policies, personnel, and funding as may be necessary to improve 

its implementation of this section; 

(4) review and report to the Attorney General, through the head of the 

agency, at such times and in such formats as the Attorney General may 

direct, on the agency’s performance in implementing this section; 

(5) facilitate public understanding of the purposes of the statutory 

exemptions of this section by including concise descriptions of the 

exemptions in both the agency’s handbook issued under subsection (g), and 

the agency’s annual report on this section, and by providing an overview, 

where appropriate, of certain general categories of agency records to which 

those exemptions apply; and 

(6) designate one or more FOIA Public Liaisons. 

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall 

serve as supervisory officials to whom a requester under this section can raise 

concerns about the service the requester has received from the FOIA Requester 

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Center, following an initial response from the FOIA Requester Center Staff. FOIA 

Public Liaisons shall be responsible for assisting in reducing delays, increasing 

transparency and understanding of the status of requests, and assisting in the 

resolution of disputes. 

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