Exhaustion of Administrative Remedies

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This article is part of a series on Litigation

Introduction

A FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress.[1] There are some exceptions, however, such as an agency's denial of expedited processing.

How To Exhaust Administrative Remedies

A requester can exhaust remedies in either of the following two ways. Failure to follow these deadlines will generally cause dismissal of the case. Also, if the agency denies a request before the requester goes to court, the requester must file an administrative appeal, usually within 90 days, and then wait as described before filing in court.

Exhaust the initial request

Make a proper FOIA request, in accordance with agency regulations,[2] and wait 20 working days after the agency receives the complete request, without receiving a decision.[3] The agency can extend the deadline by 10 more working days if it notifies the requester of unusual circumstances. It can also pause the count of days by requesting clarification from the requester. As soon as the agency sends a decision, this window to file in court ends, and the requester must file an administrative appeal (usually within 90 days) and wait as described in the next step.

Exhaust the administrative appeal

File an administrative appeal after receiving the agency's final determination, in accordance with agency regulations[4]. Again after 20 working days the requester can go to court.[5] This window remains open until 6 years after the administrative appeal is decided.[6][7] If the requester misses the 90-day or 6-year deadlines, a new FOIA can be submitted to get a new set of deadlines.[6][7][8]

What is a "determination"?

In order to make a "determination" the agency must at least:

  1. gather and review the documents
  2. determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and
  3. inform the requester that it can appeal whatever portion of the 'determination' is adverse."[9]

"[A]n initial statement that the agency will generally comply with a FOIA request and will produce non-exempt documents and claim exemptions in the future" is not a "determination" under FOIA and does not close the window on filing in court, nor trigger a need to file an administrative appeal.[10]

Note that while actual production of any relevant records is not required at the exact time of determination, the records should be made promptly available, which "typically would mean within days or a few weeks of a 'determination,' not months or years."[11]

Exhaustion Via Agency's Failure to Comply with Time Limits ("Constructive" Exhaustion)

A requester shall be deemed to have exhausted her administrative remedies with respect to her request if the agency fails to comply with the applicable time limit provisions set forth in FOIA for responding to a request.[12] Put another way, when an agency does not comply with FOIA's time limits, the requester can seek immediate judicial review despite not having filed an administrative appeal.[13] Courts refer to this as "constructive" exhaustion.[14]

However, note that this special right to immediate judicial review that arises from the lack of a timely agency response lapses if an agency responds to a request at any time before the requester's FOIA suit is filed; in that situation, the requester must administratively appeal a denial and wait at least twenty working days for the agency to adjudicate that appeal[15]before commencing litigation.[16]

Thus, if a FOIA requester waits beyond the statutory deadline for the agency's initial response and then, in fact, receives that response before suing the agency, the requester must exhaust his administrative appeal rights before litigating the matter.[17] If an agency makes an adverse determination after the requester has filed suit, however, the requester need not first administratively appeal that determination before pressing forward with the court action.[18]

Note that even in instances where the agency has provided a timely response the requester's exhaustion obligation may be excused if the agency's response fails to supply notice of the right to file an administrative appeal[19] or ultimately to supply notice of the right to seek court review at the conclusion of the administrative appeal process.[20]

Other considerations on when to appeal

Each year, each agency publishes its median processing times for simple, complex and expedited requests, and for appeals.[21] 80% of the agencies take over 20 working days to decide on complex requests, and a quarter take four months or more. Complex means a request for a lot of information or from multiple locations.[22]

Courts expect first-in-first-out processing within each track (simple, complex, or expedited) [23], so courts will not expect nor order your request to be done any faster than the median, and there is little point in going to court before the median time has passed, even though technically one can file after 20 days. The same first-in-first-out rule means that no request should take longer than the median, so then going to court can be reasonable.

The median time to decide on simple requests is within 20 working days at 90% of agencies, consistent with the legal deadline. The median time to decide on expedited requests is within 20 working days at two thirds of agencies, but some take much longer, and may even take longer than complex requests, such as HHS: 365 days for expedited and 44 days for complex in 2016.[21]

The total approval rate is also published for each agency (though not broken out by simple, complex, expedited),[24] so requesters can judge their chances. As soon as the requester does go to court, a Justice Department lawyer becomes involved and settles if s/he thinks the agency's case is weak, because "Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law."[25]

Approval rates and speed of administrative appeals area also published by each agency,[26] so requesters can decide if waiting is worthwhile.

Exhaustion Not Required to Challenge Denial of Expedited Processing

Multiple opinions from the District Court for the District of Columbia have held that a requester need not exhaust their administrative remedies before bringing a lawsuit to challenge a denial of expedited processing.[27] The textual basis for such a difference is that "FOIA uses different language in the provision relating to denials of requests for expedited processing: '[a]gency action to deny or affirm denial of a request for expedited processing . . . shall be subject to judicial review'", citing 5 U.S.C. § 552(a)(6)(E)(iii).[28] And as one Court noted in denying the government's motion to dismiss for failure to exhaust administrative remedies, "To require a requestor who has been denied expedited processing to exhaust administrative remedies before seeking judicial review would defeat the section’s aim of accelerating response time."[29]

Other Instances When Failure to Exhaust Administrative Remedies May Be Permissible

There have been some occasions on which courts have allowed the suit to proceed without exhaustion. For instance:

  • Where the party's claim rested upon statutory interpretation - an area of court, rather than agency, expertise.[30]
  • Where the requester did not file a timely administrative appeal but the agency provided a substantive response to an untimely appeal.[31]
  • Where the agency failed to inform the requester of the exemption relied upon until its response to the administrative appeal.[32]
  • Where the agency's position appeared to already have been set, such that an additional administrative review was considered "futile."[33]
  • Where the agency had also disregarded the FOIA appeal deadline.[34]
  • Where judicial economy favored waiving the exhaustion requirement because plaintiffs were also litigating three identical requests submitted to other agencies (for which they had exhausted administrative remedies).[35] The court found creating a "separate lawsuit would be a waste of the parties’ and judicial resources."

See Also

External Links

https://www.justice.gov/archive/oip/courtdecisions/exhaustion.html

References

  1. ↑ See Oglesby v. Dep't of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990); Pearson v. DHS, 2009 WL 4016414, at *2 (N.D. Tex. Oct. 23, 2009); Schoenman v. FBI, No. 04-2202, 2006 WL 1582253, at *9 (D.D.C. June 5, 2006); Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C. 2002)
  2. ↑ Powell v. Gibbons, No. 3:09-cv-00093, 2010 WL 4293278, at *6 (D. Nev. Oct. 20, 2010);
  3. ↑ 5 U.S.C. 552(a)(6)(C)(i).
  4. ↑ Ebling v. DOJ, 796 F. Supp. 2d 52, 65 (D.D.C. 2011)
  5. ↑ 5 U.S.C. 552(a)(6)(C)(i).
  6. ↑ 6.0 6.1 Spannaus v. DOJ 824 F.2d at 57-59
  7. ↑ 7.0 7.1 DOJ, Litigation Considerations p.13
  8. ↑ ExxonMobil Corp. v. Dep't. of Commerce, 828 F. Supp. 2d 97, 104 (D.D.C. 2001)
  9. ↑ Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 188 (D.C. Cir. 2013) ("CREW").
  10. ↑ CREW, 711 F.3d at 188 (holding that a requester should be deemed to have exhausted its administrative remedies when the agency had agreed to produce documents on a rolling basis but had not actually made a "determination" within the time period required by FOIA).
  11. ↑ Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2012)
  12. ↑ 5 U.S.C. 552(a)(6)(C)(i).
  13. ↑ Accuracy in Media, Inc. v. NTSB, No. 03-0024, 2006 WL 826070, at *6 (D.D.C. Mar. 29, 2006); Anderson v. USPS, 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998); Campbell v. Unknown Power Superintendent of the Flathead Irrigation & Power Project, No. 91-35104, 1992 WL 84315, at *1 (9th Cir. Apr. 22, 1992)
  14. ↑ Khine v. U.S. Dep't of Homeland Sec., 943 F.3d 959, 966 (D.C. Cir. 2019)
  15. ↑ as is required by 5 U.S.C. § 552(a)(6)(A)(ii)
  16. ↑ Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990)
  17. ↑ Rease v. Harvey, 238 F. App'x 492, 495 (11th Cir. 2007)
  18. ↑ Zander v. DOJ, No. 10-2000, 2011 WL 1775059, at *1 (D.D.C. May 10, 2011)
  19. ↑ as required by 5U.S.C. § 552(a)(6)(A)(i),129
  20. ↑ Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C. 2002)
  21. ↑ 21.0 21.1 Table VII.A https://www.justice.gov/oip/reports-1
  22. ↑ https://www.foia.gov/glossary.html#c
  23. ↑ p.47, DOJ Litigation Considerations
  24. ↑ compare full and partial "grant" in table VI.B. to number "processed" in table V.A. https://www.justice.gov/oip/reports-1
  25. ↑ US Attorney General memo March 19, 2009 https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf
  26. ↑ tables VI.A, VI.B and VI.C https://www.justice.gov/oip/reports-1
  27. ↑ See, e.g., ACLU v. U.S. Dep't of Justice, 321 F. Supp. 2d 24, 28 (D.D.C. 2004) (“FOIA ... specifically authorizes judicial review for challenges to ‘[a]gency action to deny or affirm denial of a request for expedited processing’ ”), quoting 5 U.S.C. § 552(a)(6)(E)(iii); Elec. Privacy Info. Ctr. v. Dep't of Defense, 355 F. Supp. 2d 98, 100 n.1 (D.D.C. 2004) (“Plaintiff is not required to pursue an administrative appeal before seeking judicial review of its request for expedited processing of a FOIA request.”); Al-Fayed v. CIA, No. 00-2092 (D.D.C. Sept. 20, 2000) (holding that FOIA language “clearly indicates that judicial review is appropriate at either of two moments: when the agency has denied a request for expedited processing, or when the agency has, upon administrative appeal, affirmed the denial of such a request”)
  28. ↑ Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, No. CV 19-1552 (ABJ), 2020 WL 515884, at *3 (D.D.C. Jan. 31, 2020)
  29. ↑ Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, No. CV 19-1552 (ABJ), 2020 WL 515884, at *3 (D.D.C. Jan. 31, 2020)
  30. ↑ Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 1815632, at *4 (N.D. Cal. May 17, 2012)
  31. ↑ People for the Ethical Treatment of Animals v. NIH, No. 10- 1818, 2012 WL 1185730, at *5 (D.D.C. Apr. 10, 2012)
  32. ↑ Skybridge Spectrum found. v. FCC, No. 10-1496, 2012 WL 336160, at *9 (D.D.C. Feb. 2, 2012)
  33. ↑ Am. Small Bus. League v. SBA, 2009 WL 1916896, at *5 (N.D. Cal. July 1, 2009)
  34. ↑ Fischer v. FBI, No. 07-2037, 2008 WL 2248711, at *2 (D.D.C. May 29, 2008)
  35. ↑ Center for Investigative Reporting et al v. U.S. Dep't of Justice et al, No. 3:21-cv-09613-SK (N.D. Cal. May 19, 2022).
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