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Washington, DC, April 2, 2013 – The U.S. Court of Appeals for the D.C. Circuit today rejected the Justice Department's "impermissible" "maneuver" that would have kept "FOIA requests
bottled up in limbo for months or years on end," according to the unanimous decision in the CREW v. FEC case, now remanded to the District Court.
Justice last month won for the second year in a row the infamous Rosemary Award for worst open government performance by a federal agency over the past
year – an award named after President Nixon's tape-erasing secretary, Rose Mary Woods, and founded by the National Security Archive to recognize the
lowlights of government secrecy.
The Rosemary Award citation specifically highlighted the "Justice Department's attempt to eviscerate the OPEN Government Act of 2007 by backing the Federal
Election Commission in their litigation against the public interest group CREW. The FEC claims that a postcard acknowledgement amounts to a 'determination'
under FOIA, and thus meets the 20-day response standard in the law, retaining the threat of fees that the 2007 act meant to remove when agencies were
untimely in their responses to requesters."
The FEC/Justice position would have kept FOIA requesters from ever getting to court, no matter how long the agency took to respond.
Today, the D.C. Circuit emphatically rejected the Justice Department attempt to undermine the Freedom of Information Act, stating:
This critical point both highlights and unravels the maneuver that the FEC (backed by the Department of Justice) is attempting here. Under the FEC's
theory, an agency could respond to a request within 20 working days in terms not susceptible to immediate administrative appeal – by simply stating, in
essence, that it will produce documents and claim exemptions over withheld documents in the future. Then, the agency could process the request at its
leisure, free from any timelines. All the while, the agency's actions would remain immune from suit because the requester would not yet have
been able to appeal and exhaust administrative appeal remedies. Therein lies the Catch-22 that the agency seeks to jam into FOIA: A requester cannot
appeal within the agency because the agency has not provided the necessary information. Yet the requester cannot go to court because the requester has
not appealed within the agency. Although the agency may desire to keep FOIA requests bottled up in limbo for months or years on end, the statute simply
does not countenance such a system, as we read the statutory text.
Tom Blanton, director of the National Security Archive, remarked, "The Justice Department, by making outrageous litigation claims like the ones the D.C.
Circuit rejected today, is undermining President Obama's entire open government agenda. Attorney General Holder needs to provide some adult supervision, or
another presidential term will pass with Justice's lawyers making the same old secrecy arguments."
The Archive is a member of the public interest coalition OpenTheGovernment.org, which intervened in the CREW v. FEC case as an amicus, with a
brief authored by the Public Citizen Litigation Group.
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