Exhaustion of Administrative Remedies
- This article is part of a series on Litigation
A FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress.
How To Exhaust Administrative Remedies
- Make a proper FOIA request, in accordance with agency regulations
- File an administrative appeal after receiving the agency's final determination, in accordance with agency regulations
Failure to do both of the above will generally mean that administrative remedies have not been exhausted, and the requester will face dismissal of his case.
What is a "determination"?
In order to make a "determination" within the statutory time periods and thereby trigger the administrative exhaustion requirement, the agency must at least:
- gather and review the documents
- determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and
- inform the requester that it can appeal whatever portion of the 'determination' is adverse."
"[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 insufficient to trigger the administrative exhaustion requirement because it is not a "determination" under FOIA.
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."
Exhaustion Via Agency's Failure to Comply with Time Limits
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. 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.
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 appealbefore commencing litigation.
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. 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.
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 or ultimately to supply notice of the right to seek court review at the conclusion of the administrative appeal process.
When Might Failure to Exhaust Administrative Remedies 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
- Where the requester did not file a timely administrative appeal but the agency provided a substantive response to an untimely appeal
- Where the agency failed to inform the requester of the exemption relied upon until its response to the administrative appeal
- Where the agency's position appeared to already have been set, such that an additional administrative review was considered "futile."
- Where the agency had also disregarded the FOIA appeal deadline
- 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)
- Powell v. Gibbons, No. 3:09-cv-00093, 2010 WL 4293278, at *6 (D. Nev. Oct. 20, 2010);
- Ebling v. DOJ, 796 F. Supp. 2d 52, 65 (D.D.C. 2011)
- ExxonMobil Corp. v. Dep't. of Commerce, 828 F. Supp. 2d 97, 104 (D.D.C. 2001)
- Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 188 (D.C. Cir. 2013) ("CREW").
- 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).
- Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2012)
- 5 U.S.C. 552(a)(6)(C)(i).
- 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)
- as is required by 5 U.S.C. § 552(a)(6)(A)(ii)
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990)
- Rease v. Harvey, 238 F. App'x 492, 495 (11th Cir. 2007)
- Zander v. DOJ, No. 10-2000, 2011 WL 1775059, at *1 (D.D.C. May 10, 2011)
- as required by 5U.S.C. § 552(a)(6)(A)(i),129
- Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C. 2002)
- Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 1815632, at *4 (N.D. Cal. May 17, 2012)
- People for the Ethical Treatment of Animals v. NIH, No. 10- 1818, 2012 WL 1185730, at *5 (D.D.C. Apr. 10, 2012)
- Skybridge Spectrum found. v. FCC, No. 10-1496, 2012 WL 336160, at *9 (D.D.C. Feb. 2, 2012)
- Am. Small Bus. League v. SBA, 2009 WL 1916896, at *5 (N.D. Cal. July 1, 2009)
- Fischer v. FBI, No. 07-2037, 2008 WL 2248711, at *2 (D.D.C. May 29, 2008)