By Kurt R. Karst –
As food and drug attorneys, we rely on a certain level of FDA transparency to understand why FDA did what it did in a particular case, and to discern what that means for future Agency action (or inaction) in another case. One way we get the transparency we need is by submitting Freedom of Information Act (“FOIA”) requests to FDA seeking the production of particular documents or records. Anyone who has submitted a FOIA request to FDA (or to any federal agency for that matter) knows that it can be a long wait to get responsive documents and records from FDA, or any indication of what documents might be produced. A recent decision from the U.S. Court of Appeals for the District of Columbia Circuit, however, might lead to significant changes in how FDA and other federal agencies process FOIA requests.
The FOIA statute requires the communication of a “determination” within 20 working days of an agency receiving the request (5 U.S.C. § 552(a)(6)(A)(i)), or within 30 working days in “unusual circumstances” (5 U.S.C. § 552(a)(6)(B)(i)). As a matter of procedure, after receiving a FOIA request, FDA sends a FOIA requester a form acknowledement letter within the statutory timeframe merely saying that the Agency is processing the request. A long waiting period typically ensues before responsive documents and records are produced and exemptions claimed. (Current Department of Justice FOIA guidance and policy is available here.)
Sometimes requesters simply do not want to wait months or years for responsive documents and decide to sue FDA for inaction on a FOIA request. A common government response to such a lawsuit is a motion to dismiss the action saying that the plaintiff failed to exhaust administrative appeal remedies before filing suit, because the agency communicated its “determination” on the FOIA request, saying that it would, in the futue, produce non-exempt documents and records and claim exceptions over others. But is such a response really a “determination” under FOIA? Curiously, the contours of what constitutes a “determination” for exhaistion purposes has not, until recently, been decided by the D.C. Circuit, which has a significant FOIA caseload.
In an April 2, 2013 decision, involving a FOIA request submitted by the non-profit organization called Citizens for Responsibility and Ethics in Washington (“CREW”) to the Federal Election Commission (“FEC”), the D.C. Circuit reversed a December 2011 decision from the D.C. District Court granting summary judgment to the FEC on the basis that CREW failed to exhaust administrative remedies before filing suit. In doing so, the D.C. Circuit addressed the important procedural question of what constitutes a “determination” under the FOIA stature within the 20- and 30-day timeframes to trigger the government’s exhaustion argument.
CREW argued that in order to make a “determination” in response to a FOIA request, an agency must at least “inform the requester of the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents,” but does not necessarily need to produce the responsive documents. The FEC took the postition an agency simply needs to express a “future intention” to produce documents and claim exemptions in order to make a “determination” within the statutory timeframe.
The Court noted that despite the significant amount of FOIA litigation in the Court, the D.C. Circuit has not decided the contours of a “determination” under the statute due, “in part because individual FOIA requesters apparently have not thought it worth the candle to press this point, rather than to work with the agency in an effort to obtain the requested documents.” The panel of Judges Griffith, Kavanaugh, and Sentelle then ruled for CREW:
We agree with CREW’s reading of the statute. The statute requires that, within the relevant time period, an agency must determine whether to comply with a request – that is, whether a requester will receive all the documents the requester seeks. It is not enough that, within the relevant time period, the agency simply decide to later decide. Therefore, within the relevant time period, the agency must at least inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions.
The Court cited several aspects of the FOIA statute that reinforce its decision that a “determination” must be substantive, rather than merely boilerplate and procedural. For example, the Court wrote:
The statutory requirement that the agency provide “the reasons” for its “determination” strongly suggests that the reasons are particularized to the “determination” – most obviously, the specific exemptions that may apply to certain withheld records. The statutory requirement would not make a lot of sense if, as the FEC argues, the agency were merely required to state within 20 working days its future intent to eventually produce documents and claim exemptions. After all, how could the agency articulate reasons for non-compliance when it had not yet decided whether to comply (that is, whether to produce all of the requested documents)?
Defining the countours of an agency “determination” the Court wrote:
[I]n order to make a “determination” and thereby trigger the administrative exhaustion requirement, 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.
The upshot of the Court’s ruling – that if an “agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court” – to FOIA requesters is that they are now likely to have increased leverage to quickly negotiate responses with FDA and other federal agencies to keep cases out of court. Depending on the perceived effects of the decision, it is possible that the government may seek further review or may seek a change to the FOIA statute. As the D.C. Circuit noted, “[i]t is true that the statute does not allow agencies to keep FOIA requests bottled up for months or years on end while avoiding any judicial oversight. But Congress made that decision. If the Executive Branch does not like it or disagrees with Congress’s judgment, it may so inform Congress and seek new legislation.”