Expedited Processing

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Introduction

The FOIA provides for expedited review of requests in certain circumstances, which means that the request will be taken out of the order in which it was received and prioritized over other FOIA requests.

Such requests must be made in the initial request letter. An agency that grants a request for expedited processing must review the FOIA request “as soon as practicable.”[1] The FOIA requires agencies to issue regulations providing for expedited processing guidelines “in cases in which the person requesting the records demonstrates a compelling need” and “in other cases determined by the agency.”[2]

Circumstances in which expedited processing is warranted

Subsection 552(a)(6)(E) of FOIA states:

(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.

A requester asking for expedited processing must include a statement that their request is "true and correct to the best of [the requester's] knowledge and belief."[3]

Definition and scope of "compelling need"

"Compelling need", as defined by FOIA, 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.[4]

Imminent threat to life or physical safety

A threat will not be imminent unless there is a reasonable and realistic prospect of harm to life or safety in the immediate or very near future. The situation should be such that a reasonable person would be able to appreciate that a delay in obtaining the requested information poses this threat.

Note that an imminent threat can be created by harassment or other verbal conduct, as well as by physical violence.

"Primarily Engaged in Disseminating Information"

While the FOIA does not define the phrase “a person primarily engaged in disseminating information,” a “representative of the news media” will generally meet this element. For example, Department of Justice regulations require a requester to “establish that he or she is a person whose main professional activity or occupation is information dissemination” only if the person is “not a full-time member of the news media.”[5] Similarly, Department of Defense regulations state that “[r]epresentatives of the news media would normally qualify.”[6]

Agencies and courts have relied on the definition of “representative of the news media” that appears in the fee waiver provisions of the FOIA.[7] For example, a court held that a public interest research center was a “representative of the news media” for expedited review purposes, as it had been found to be a “representative of the news media” for purposes of its fee waiver request in an earlier case.[8]

Some agencies, including the Department of Justice,[9] National Science Foundation,[10] and the Office of the Secretary of Transportation,[11] specify that only “full-time” representatives of the media are presumed to satisfy this element. Likewise, the IRS provides that if a requester is “not a full-time representative of the news media,” the requester “must establish that he or she is a person whose main professional activity or occupation is information dissemination.”[12] A requester who is “engaged only incidentally in the dissemination of information” will not meet this criterion, according to IRS regulations.[13]

If the requester is not a “full-time” media representative, they must make a strong showing that information dissemination is their primary activity. In one case, a court held that a civil liberties organization, did not meet this standard under the Department of Justice regulations for expedited review, which require a requester who is “not a full-time member of the news media” to “establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation.”[14] The organization argued that its dissemination of information through platforms such as its newsletter, website, and press releases was “central to its activities.”[15] However, the government refuted this on the basis that the organization’s website stated that its primary activity was litigating cases.[16] The court agreed, ruling that the organization was not “primarily engaged in disseminating information” because such dissemination was not “the main activity” of the organization, but only “a main activity.”[17]

Finally, as specified in many agencies’ regulations, a requester must demonstrate that they publish or disseminates information to the general public, rather than merely a segment or group.[18]

"Urgency to Inform"

Courts consider three primary factors in determining whether there is an "urgency form" for the purpose of expedited processing: whether

  1. “the request concerns a matter of current exigency to the American public”;
  2. “the consequences of delaying a response would compromise a significant recognized interest”; and
  3. “the request concerns federal government activity.”[19]

Courts often consider the first two factors together, as the first requires identification of the public interest at stake and the second requires an evaluation of the potential harm to that interest in delaying a response.

In addition to these factors, a requester’s credibility, in, for example, assessing allegations regarding government activity, is at times also considered.[20] While the law provides little guidance on the application of this consideration, the legislative history of the expedited review processing provision in FOIA explains that “[t]he credibility of a requestor who makes repeated claims for expedited processing that are determined to lack factual foundation may be taken into account when the same requestor makes additional requests.”[21]

"Concerns a Matter of Current Exigency to the American Public"

Regarding the first prong, the the matter must be current or ongoing. For example, a court held that requesters seeking expedited review for a records request related to the 1997 deaths of Princess Diana and Dodi Al Fayed in a car accident failed to meet this standard where “[a]ll of the events and alleged events occurred two to three years before” the request for expedited processing, and “none of the events at issue is the subject of a currently unfolding story.”[22] Similarly, another court held that a 2010 expedited review request for records about mistakes made by the U.S. military in recovering the bodies of World War II soldiers sought matters of “historical, not current” interest.[23] The court explained that “[a]n example of breaking news would be that the U.S. military is making mistakes and misrepresentations about the recovery of service members who die in Iraq and Afghanistan.”[24]

In addition to showing that the subject of the records relates to a current matter, the requester must also provide evidence that the matter is one of urgency “to the American public” that extends “beyond the public’s right to know about government activity generally.”[25] For example, a court held that a requester did not demonstrate such urgency where the request related to a decision of the U.S. Attorney’s Office to decline to prosecute a person who attempted to sell fraudulent documents related to the car crash in which Princess Diana was killed.[26] The court noted that while the information was “current” since the office’s decision was issued during the pendency of the requester’s FOIA lawsuit the requesters failed to show “that there is substantial interest, either on the part of the American public or the media, in this particular aspect of plaintiff’s allegations.”[27] Specifically, the court noted that the requesters had not produced “any news reports on the subject” of the refusal to prosecute, but only reports on the press conference the requesters held to announce their filing of the FOIA lawsuit.[28]

In contrast, a court found that where requesters sought records related to controversial, ongoing surveillance efforts of the government under the USA PATRIOT Act, “the potential invasion of the public’s privacy interests” weighed in favor of a finding of urgency.[29] The court found the public interest was further bolstered by the U.S. Attorney General’s declassification of information related to the government’s use of the law in an effort to increase public confidence in law enforcement, as this action demonstrated recognition of the public interest in the topic.[30]

Likewise, a court cited public health concerns in finding an urgent need for drug data received by the FDA in relation to the agency’s ongoing investigation into a possible connection between an anti-epileptic drug and suicide-related events involving those taking the drug.[31]

"The Consequences of Delaying a Response Would Compromise a Significant Recognized Interest"

Regarding the second prong, a requester must cite to sources that demonstrate that such a potential harm exists.

Some agencies’ regulations have recognized that the value of the information to a “breaking news story” satisfies this element.[32] As one court interpreting such a provision explained, “[a] breaking news story is one that conveys information the public wants quickly,” and “[i]f the story would lose value if it were delayed, it is a breaking news story.”[33] On that basis, the court found that records related to the controversial record-keeping practices of a program that gathered information on U.S. political protests was a “breaking news story” on which news organizations were actively seeking to “get the latest scoop.”[34] The court noted that the requesters had submitted as evidence at least 53 articles about the program published in “disparate places” of the nation and “in multiple publications” in the 52 days prior to the FOIA requests.[35] Additionally, those articles highlighted unanswered questions regarding the program and demonstrated “the potential impact of news about” the program namely, that people might rely on the requested information in deciding whether to attend political protests.[36] As delaying review would harm “the media’s interest in quickly disseminating breaking, general-interest news,”[37] the court held that expedited review was proper based on the FOIA and on the agency’s regulations, which specify that urgency “[o]rdinarily . . . means a breaking news story of general public interest.”[38]

Other circumstances can also qualify. For example, a court found that delaying the release of data on an anti-epileptic drug that was connected to suicidal thoughts could not only harm the public’s understanding of how and when the FDA learned of the drug’s side effects, but also the health of people continuing to use the drug.[39]

In another case, a court found that a request for information about controversial surveillance provisions in a federal law could not be delayed, as production of the information under the normal FOIA processing times would not occur until June 2005, and there was an ongoing national debate over whether the provisions should be extended past their expiration date in December 2005.[40] Delayed review could improperly hinder the requesters from providing timely information to the public on an issue of current debate, the court explained.[41]

"The Request Concerns Federal Government Activity"

For the third and final prong, the requester must show that the request “concern[s] federal government activity.”

In explaining how the request satisfies this factor, requesters should note that courts have interpreted the word “concerning” broadly to extend beyond materials generated by the federal government itself. For example, one court rejected the claim that the word “encompasses only information originating directly from the Government,” and defined it instead according to a dictionary definition: “relating to, to be about, to bear on.”[42] On that basis, the court held that information provided to an agency by private companies pursuant to an agency-initiated inquiry “concerned” a federal government activity -- the agency’s decision to make the inquiry.[43]

Other Circumstances

Agencies may, by regulation, determine other circumstances in which expedited processing is granted.

For example, Department of Justice’s FOIA regulations provide that in addition to the above two-part compelling need standard, requesters may also seek expedited review by showing that the request concerns “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”[44] The Federal Housing Finance Agency[45] and the Department of Veterans Affairs[46] are some of the agencies that have adopted similar provisions.

As with the “compelling need” standard, a requester should provide examples of news coverage of the subject of the request to demonstrate “exceptional media interest”; such sources should demonstrate media interest in “the exact subjects of the FOIA request,” rather than in “the general subject area of the request.”[47] One court held that a requester was not entitled to expedited review on this basis as found in the Justice Department regulations for a request for records related to the organizational structure of a joint terrorism task force, as well as the task force’s relationship with other government entities.[48] The news articles submitted to demonstrate “exceptional media interest” contained “only a few generalized references” to the task force, rather than discussions of the organization and relationships of the task force, and therefore failed to show media interest in the specific topic of the request.[49]

In contrast, a requester organization met the “exceptional media interest” standard where it submitted articles “published in a variety of publications” that “repeatedly reference[d] the ongoing national discussion” about the national controversy and discussion centering on the government’s controversial use of Section 215 of the Patriot Act in gathering intelligence the exact topic on which the organization requested records.[50]

Timing of an agency response to a request for expedited processing

An agency must make a determination with respect to a request for expedited processing within 10 calendar days.[51]

Timing of agency's release of records

If an agency grants a request for expedited processing, it must process the request "as soon as practicable".[52]

Procedural considerations regarding a denial of expedited processing

If a request for expedited processing is denied, the requester may appeal within the agency or to file a lawsuit. While a requester must exhaust all administrative appeals prior to filing a lawsuit in some cases — such as appeals of denials of fee waivers — a requester may immediately file suit upon being denied expedited review.[53] As one court explained, an administrative appeal for expedited review is not “a prerequisite for judicial review.”[54] However, in most circumstances, the more common (and less costly) approach upon denial of an expedited review request is to first try to resolve the matter in the administrative appeal process.

Note that once an agency provides “a complete response” to a FOIA request, a court will no longer have the authority to address a claim that the agency wrongfully denied expedited processing.[55] That is, at the point that an agency releases all responsive records to the requester — whether this occurs before the requester files suit for expedited processing or during the ongoing lawsuit — the court loses authority to hear the expedited review claim. However, one court specified that an agency response to the request does not remove the court’s ability to address the claim unless and until the agency’s substantive response to the request “is ‘complete,’” which may require the court to examine the “merits” of the FOIA request to address a requester’s claim that additional documents should have been produced.[56]

Recent district court cases on expedited processing

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See also

External links

References

  1. 5 U.S.C. § 552(a)(6)(E)(iii).
  2. 5 U.S.C. § 552(a)(6)(E)(i)
  3. 5 U.S.C. § 552(a)(6)(E)
  4. 5 U.S.C. § 552(a)(6)(E)(v)
  5. 28 C.F.R. § 16.5(d)(3).
  6. 32 C.F.R. § 286.4(d)(3)(ii) (internal citation omitted).
  7. See, e.g., Am. Civil Liberties Union, 321 F.Supp.2d at 29 n.5; 32 C.F.R. § 286.4(d)(3)(ii).
  8. Am. Civil Liberties Union, 321 F.Supp.2d at 29 n.5.
  9. 28 C.F.R. § 16.5(d)(3).
  10. 45 C.F.R. § 612.5(d)(2).
  11. 49 C.F.R. § 7.31(c)(3).
  12. 26 C.F.R. § 601.702(c)(6)(B).
  13. Id.
  14. Am. Civil Liberties Union of N. Cal. v. U.S. Dep’t of Justice, No. C 04-4447 PJH, 2005 WL 588354 at *9, 14 (N.D. Cal. Mar. 11, 2005) (quoting 28 C.F.R. § 16.5(d)(3)).
  15. Am. Civil Liberties Union of N. Cal., 2005 WL 588354 at *8.
  16. Id. at *9.
  17. Id. at *14 (emphasis in original).
  18. See, e.g., 21 C.F.R. § 20.44(c)(1); 7 C.F.R. §1.9(b)(2); 22 C.F.R. § 171.12(b)(2).
  19. Al-Fayed v. C.I.A., 254 F.3d 300, 310 (D.C. Cir. 2001).
  20. Id. (citing H.R. Rep. No. 104-795, at 26 (1996)).
  21. H.R. Rep. No. 104-795, supra, at 26.
  22. Al-Fayed, 254 F.3d at 310.
  23. Eakin v. U.S. Dep’t of Def., No. SA-10-CV-0784 FB (NN), 2011 WL 5925570 at *7 (W.D. Tex. Nov. 28, 2011).
  24. Id.
  25. See, e.g., 26 C.F.R. § 601.702(c)(6)(B); 49 C.F.R. § 7.31(c)(3).
  26. Al-Fayed, 254 F.3d at 310.
  27. Id. at 311.
  28. Id.
  29. Am. Civil Liberties Union, 321 F.Supp.2d at 30.
  30. Id.
  31. Bloomberg, L.P. v. U.S. Food & Drug Admin., 500 F.Supp.2d 371, 378 (S.D.N.Y. 2007).
  32. See, e.g., 22 C.F.R. § 171.12(b)(2)(i); 7 C.F.R. § 1.9(b)(2); 32 C.F.R. § 286.4(d)(3)(ii)(A).
  33. Am. Civil Liberties Union of N. Cal., 2006 WL 1469418 at *6.
  34. Id.
  35. Id.
  36. Id. at *7
  37. Id. at *8.
  38. Id. (quoting 32 C.F.R. § 286.4(d)(3)(ii)(A)).
  39. Bloomberg, L.P., 500 F.Supp.2d at 377-78.
  40. Am Civil Liberties Union, 321 F.Supp.2d at 30.
  41. Id.
  42. Bloomberg, L.P., 500 F.Supp.2d at 377 (quoting Merriam-Webster Online Dictionary).
  43. Bloomberg, L.P., 500 F.Supp.2d at 377.
  44. 28 C.F.R. § 16.5(d)(1)(iv).
  45. 12 C.F.R. § 1202.10(a)(4).
  46. 38 C.F.R. § 1.556(d)(1)(iv).
  47. Am. Civil Liberties Union of N. Cal., 2005 WL 588354 at *12-13.
  48. Id.
  49. Id. at *14.
  50. Am. Civil Liberties Union, 321 F.Supp.2d at 32.
  51. 5 U.S.C § 552(a)(6)(E)(ii)(I)
  52. 5 U.S.C. § 552(a)(6)(E)(iii)
  53. Am. Civil Liberties Union v. U.S. Dep’t of Justice, 321 F.Supp.2d 24, 28 (D.D.C. 2004) (citing 5 U.S.C. § 552(a)(6)(E)(iii)).
  54. Am. Civil Liberties Union, 321 F.Supp.2d at 28 (citing 5 U.S.C. § 552(a)(6)(E)(ii)(II)) (emphasis in original).
  55. 5 U.S.C. § 552(a)(6)(E)(iv).
  56. NAACP Legal Def. & Educ’l Fund v. Dep’t of HUD, No. 07 Civ. 3378(GEL), 2007 WL 4233008 at *6 (S.D.N.Y. Nov. 30, 2007).