DC Circuit Issues Major Freedom of Information Act Decision

Yesterday, the US Court of Appeals for the District of Columbia Circuit issued a decision that will have a profound impact on how federal agencies handle Freedom of Information Act requests.

In an opinion by Judge Kavanaugh, the DC Circuit, in an issue of first impression, defined the term “determination” for purposes of 5 USC 552(a)(6)(A)(i). The DC Circuit rejected the Justice Department’s argument that an agency can satisfy the statutory requirement to make a determination within 20 days of receiving a FOIA request by simply issuing an initial statement that the agency will comply with the request and state that it will produce non-exempt documents and claim exemptions in the future. Instead, the “agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the ‘determination’ is adverse.” Slip op. at 15. If the agency fails to make such a detailed determination within 20 days, the requester will be deemed to have exhausted its administrative remedies and can bring suit in federal court.

This decision will require all federal agencies to drastically overhaul their processes for handling FOIA requests and should result in much more timely and substantive responses to FOIA requests (and/or much more FOIA litigation).