Citizens for Responsibility & Ethics v. Federal Election Commission , 711 F.3d 180 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2012 Decided April 2, 2013
No. 12-5004
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
FEDERAL ELECTION COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00951)
Anne L. Weismann argued the cause for appellant. With
her on the briefs was Melanie Sloan.
Julie A. Murray and Adina H. Rosenbaum were on the
brief for amici curiae Public Citizen, et al. in support of
appellant.
Steve Hajjar, Attorney, Federal Election Commission,
argued the cause for appellee. With him on the brief were
Anthony Herman, General Counsel, and David Kolker,
Associate General Counsel. Sarang V. Damle and Michael S.
Raab, Attorneys, U.S. Department of Justice, entered
appearances.
2
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: This case presents an
important question of procedure under the Freedom of
Information Act: When must a FOIA requester exhaust
administrative appeal remedies before suing in federal district
court to challenge an agency’s failure to produce requested
documents?
As a general matter, a FOIA requester must exhaust
administrative appeal remedies before seeking judicial
redress. But if an agency does not adhere to certain statutory
timelines in responding to a FOIA request, the requester is
deemed by statute to have fulfilled the exhaustion
requirement. See 5 U.S.C. § 552(a)(6)(C)(i).
To trigger the exhaustion requirement, an agency must
make and communicate its “determination” whether to
comply with a FOIA request – and communicate “the reasons
therefor” – within 20 working days of receiving the request,
or within 30 working days in “unusual circumstances.” Id.
§ 552(a)(6)(A)(i), (a)(6)(B)(i). If the agency has made and
communicated its “determination” in a timely manner, the
requester is required to administratively appeal that
“determination” before bringing suit. But if the agency has
not issued its “determination” within the required time period,
the requester may bring suit directly in federal district court
without exhausting administrative appeal remedies.
3
The exhaustion issue in this case boils down to what kind
of agency response qualifies as a “determination.” In
particular, when an agency responds to a request within 20
working days but merely tells the requester that the agency
will produce non-exempt responsive documents and claim
exemptions in the future, is that a “determination” within the
meaning of the statute, as defendant FEC argues? Or must the
agency, even if it need not produce the documents within 20
working days, at a minimum indicate the scope of the
documents it will produce and the exemptions it will claim, as
plaintiff CREW argues?
Based on the language and structure of FOIA, we agree
with CREW. In order to make a “determination” within the
statutory time periods and thereby trigger the administrative
exhaustion requirement, the agency need not actually produce
the documents within the relevant time period. But the
agency must at least indicate within the relevant time period
the scope of the documents it will produce and the exemptions
it will claim with respect to any withheld documents.
In this case, the FEC did not make such a
“determination” within the statutory time period. As a result,
CREW was not required to exhaust administrative appeal
remedies before filing its FOIA suit. We reverse the contrary
judgment of the District Court and remand for further
proceedings.
I
Citizens for Responsibility and Ethics in Washington –
known as CREW – is a nonprofit organization that, among
other things, advocates for the right of citizens to know about
the activities of government officials. CREW pursues that
4
objective through the acquisition and dissemination of
information about public officials and federal agencies.
On March 7, 2011, CREW submitted a FOIA request to
the Federal Election Commission seeking several categories
of records, including certain correspondence, calendars,
agendas, and schedules of the Commissioners.
On March 8, the day after the FOIA request was
received, the FEC emailed CREW to acknowledge receipt of
the request. In several conversations that took place over the
next few weeks, CREW agreed to exclude certain categories
of documents from the FEC’s initial search for records. The
FEC in turn agreed to provide non-exempt responsive
documents (and thus also claim exemptions over any withheld
documents) on a rolling basis in the future. But by May 23,
more than two months later, CREW had not received any
documents, nor had it received a more specific statement
about what documents the FEC would produce and what
exemptions the FEC would claim. CREW therefore filed suit
in District Court, alleging that the FEC had not responded to
the FOIA request in a timely fashion and had wrongfully
withheld records under FOIA.
As of May 23, the FEC had begun – but had not
completed – gathering and reviewing potentially responsive
records. Subsequently, on June 15, 21, and 23, the FEC
provided CREW with a total of 835 pages of documents. The
agency’s June 15th production was accompanied by a letter
stating in part:
The FEC is continuing to process your request and has
produced with this letter an initial round of responsive
records. You will continue to receive additional
responsive records on a rolling basis. Upon the agency’s
5
final production of records, you will receive a decision
letter that will include information regarding your appeal
rights. Today’s letter does not constitute a final agency
decision, and thus is not subject to appeal.
CREW Opposition to Motion to Dismiss at Exhibit B, CREW
v. FEC, No. 11cv951 (D.D.C. July 7, 2011). The FEC sent a
similar letter with its June 21st production to CREW.
Along with its final June 23rd production, the FEC
informed CREW that the FEC had withheld some documents
and had redacted others in accordance with FOIA Exemptions
4, 6, and 7(C). See 5 U.S.C. § 552(b)(4), (b)(6), (b)(7)(C).
For the first time, the June 23rd letter also advised CREW of
its right to administratively appeal any adverse FOIA
determination.
On June 23 – the same day that it produced its final round
of responsive documents – the FEC moved in the District
Court to dismiss CREW’s complaint, or, in the alternative, for
summary judgment. First, the FEC contended that CREW’s
challenge to the agency’s delay in responding to a FOIA
request was moot given that the agency had now responded.
Second, the FEC argued that CREW had failed to exhaust
administrative appeal remedies before bringing suit.
The District Court held that the case was not moot. But
the District Court granted the FEC’s motion for summary
judgment based on CREW’s failure to exhaust administrative
appeal remedies. See CREW v. FEC, 839 F. Supp. 2d 17, 29
(D.D.C. 2011). We review the District Court’s grant of
6
summary judgment de novo. See Blackwell v. FBI, 646 F.3d
37, 39 (D.C. Cir. 2011). 1
II
In the District Court, the FEC argued that its production
of responsive documents had rendered CREW’s suit moot.
Although the parties do not raise the mootness issue on
appeal, the Court must independently consider its own
jurisdiction. See Mine Reclamation Corp. v. FERC, 30 F.3d
1519, 1522 (D.C. Cir. 1994). We agree with the District
Court that the case is not moot. CREW’s complaint not only
asserted that the FEC failed to respond to CREW’s request in
a timely fashion, but also raised a substantive challenge to the
agency’s withholding of responsive, non-exempt records.
Even now, CREW continues to seek relief from the FEC’s
alleged failure to produce all records responsive to CREW’s
request. Therefore, the case is not moot.
III
The question presented concerns when a FOIA requester
must exhaust administrative appeal remedies before filing
suit.
1
The FEC is an independent agency and was represented in
the District Court and in this Court by FEC attorneys. See
generally Humphrey’s Executor v. United States, 295 U.S. 602(1935). Because of the potential importance of this case to the
Executive Branch as a whole, this Court invited and received
supplemental briefing from the Department of Justice, which
represents and provides legal advice to the President and the
executive agencies. The Department of Justice generally agreed
with the legal position advanced by the FEC.
7
A FOIA requester is generally required to exhaust
administrative appeal remedies before seeking judicial
redress. See Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C.
Cir. 2003); Oglesby v. Department of the Army, 920 F.2d 57,
61-62 (D.C. Cir. 1990). But if an agency fails to make and
communicate its “determination” whether to comply with a
FOIA request within certain statutory timelines, the requester
“shall be deemed to have exhausted his administrative
remedies.” 5 U.S.C. § 552(a)(6)(C)(i).
The statutory timeline relevant to this case specifies that,
once an agency receives a proper FOIA request, the agency
shall:
determine within 20 days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such
request whether to comply with such request and shall
immediately notify the person making such request of
such determination and the reasons therefor, and of the
right of such person to appeal to the head of the agency
any adverse determination.
Id. § 552(a)(6)(A)(i).
The 20-working-day timeline is not absolute. In “unusual
circumstances,” an agency may extend the time limit to up to
30 working days by written notice to the requester. Id.
§ 552(a)(6)(B)(i). Such unusual circumstances include:
(I) the need to search for and collect the requested
records from field facilities or other establishments that
are separate from the office processing the request;
(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct
records which are demanded in a single request; or
8
(III) the need for consultation, which shall be
conducted with all practicable speed, with another agency
having a substantial interest in the determination of the
request or among two or more components of the agency
having substantial subject-matter interest therein.
Id. § 552(a)(6)(B)(iii).
If the agency does not make a “determination” within the
relevant statutory time period, the requester may file suit
without exhausting administrative appeal remedies. Once in
court, however, the agency may further extend its response
time if it demonstrates “exceptional circumstances” to the
court. 2 (Note that “exceptional circumstances” is different
from “unusual circumstances.”) If exceptional circumstances
exist, then so long as “the agency is exercising due diligence
in responding to the request, the court may retain jurisdiction
and allow the agency additional time to complete its review of
the records.” Id. § 552(a)(6)(C)(i); see also Open America v.
Watergate Special Prosecution Force, 547 F.2d 605, 616
(D.C. Cir. 1976).
2
Although the statute does not define “exceptional
circumstances,” it provides some directional signals: “[T]he term
‘exceptional circumstances’ does not include a delay that results
from a predictable agency workload of requests under this section,
unless the agency demonstrates reasonable progress in reducing its
backlog of pending requests. . . . Refusal by a person to reasonably
modify the scope of a request or arrange an alternative time frame
for processing a request (or a modified request) . . . after being
given an opportunity to do so by the agency to whom the person
made the request shall be considered as a factor in determining
whether exceptional circumstances exist . . . .” 5 U.S.C.
§ 552(a)(6)(C)(ii)-(iii).
9
In short, a requester must exhaust administrative appeal
remedies if the agency made and communicated its
“determination” within 20 working days (or 30 working days
in “unusual circumstances”). 3
But what constitutes a “determination” so as to trigger the
exhaustion requirement? That is the critical question here.
CREW argues that, in order to make a “determination” within
the meaning of Section 552(a)(6)(A)(i), an agency need not
go so far as to produce the responsive documents but it 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. By contrast, the FEC contends that,
in order to make a “determination,” an agency needs simply
to express a future intention to produce non-exempt
documents and claim exemptions. That question has never
been resolved in this Court. 4
3
Of course, the duties that FOIA imposes on agencies –
including the requirement that an agency make a “determination”
within 20 working days, or 30 working days in “unusual
circumstances” – apply only once an agency has received a proper
FOIA request. A proper request must “reasonably describe[]” the
records sought and must comply with the agency’s published
procedures, including the agency’s schedule of fees. 5 U.S.C.
§ 552(a)(3)(A). The agency’s threshold decision that a proper
request has been filed is obviously not the agency’s
“determination” whether to comply, and neither the FEC nor the
Department of Justice argues otherwise.
4
Despite the significant amount of FOIA litigation in this
Court, we have not had occasion to previously decide this important
procedural question, 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. In Spannaus v. DOJ, the Court stated that an
10
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.
Four aspects of the statute lead us to that interpretation,
and help demonstrate that the FEC’s contrary interpretation is
incorrect.
First, the statute requires that an agency, upon making a
“determination” whether to comply with a FOIA request,
immediately “notify the person making such request of such
determination and the reasons therefor.” 5 U.S.C.
§ 552(a)(6)(A)(i) (emphasis added). The statutory
agency failed to make a “determination” under Section
552(a)(6)(A)(i) when it merely acknowledged a FOIA request and
indicated that the request would be forwarded to another office.
824 F.2d 52, 59 n.9 (D.C. Cir. 1987). But that case did not analyze
or describe the contours of what constituted a “determination.”
Similarly, in Oglesby v. Department of the Army, the Court
specifically declined to decide whether a response that the agency
was processing the request was a “determination” for purposes of
Section 552(a)(6)(A)(i). See 920 F.2d 57, 69 (D.C. Cir. 1990). The
Court also declined to decide whether a response that the agency
would go forward with the search absent any problems or any need
for additional information was a “determination.” Id.
11
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)?
Second, the statute requires that the agency immediately
notify the requester of the right “to appeal to the head of the
agency any adverse determination.” Id. The requirement that
the agency notify the requester about administrative appeal
rights further indicates that the “determination” must be
substantive, not just a statement of a future intent to produce
non-exempt responsive documents. Otherwise, this right of
administrative appeal would make little sense because there
would be nothing to appeal at the time the agency makes its
supposed “determination” in response to a properly filed
FOIA request.
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
12
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.
This case illustrates how the FEC’s legal position does
not square with the statute. The FEC now claims that it made
a “determination” in March 2011, within 20 working days of
CREW’s FOIA request. Yet the FEC did not inform CREW
of its appeal rights until June 23, more than 75 working days
after the FOIA request. The FEC was right that CREW did
not have any decision to appeal until the FEC’s June 23rd
letter stated that the agency had withheld some documents
under multiple FOIA exemptions. But that fact also
necessarily shows that the FEC had not made a
“determination” in March, given that the statute indicates that
a “determination” must be subject to immediate appeal. By
arguing that it made a “determination” in March and
simultaneously saying that nothing could be administratively
appealed until June, the FEC’s position on CREW’s request
amply demonstrates the impermissible Catch-22 it seeks to
enshrine in the law. 5
5
In order to facilitate an administrative appeal, an agency must
indicate the scope of the documents it intends to produce and the
exemptions it will claim. An agency is not required to produce a
Vaughn index – which district courts typically rely on in
adjudicating summary judgment motions in FOIA cases. See, e.g.,
DEPARTMENT OF JUSTICE, GUIDE TO THE FREEDOM OF
13
Third, the statute creates an “unusual circumstances”
safety valve that permits an agency to extend the 20-working-
day period for response by up to 10 additional working days.
“Unusual circumstances” are defined to encompass only “the
need to search for and collect the requested records” from
separate locations; “the need to search for, collect, and
appropriately examine a voluminous amount” of documents;
and “the need for consultation” with other agencies. Id.
§ 552(a)(6)(B)(iii). The statutory list of circumstances that
permit an agency to extend the 20-working-day timeline to
make a “determination,” including collecting and examining
numerous or distant documents, clearly contemplates that the
agency must actually gather the responsive documents and
determine which it will produce and which it will withhold.
The agency cannot make the requisite “determination” by
INFORMATION ACT 789 (2009 ed.) (It “is well settled that a
requester is not entitled to receive [a Vaughn index] during the
administrative process.”); NRDC, Inc. v. NRC, 216 F.3d 1180, 1190
(D.C. Cir. 2000) (rule that agency must provide a Vaughn index in
FOIA litigation “is a rule that governs litigation in court and not
proceedings before the agency”); Bangoura v. Department of the
Army, 607 F. Supp. 2d 134, 143 n.8 (D.D.C. 2009) (“Defendant
was under no obligation to provide Plaintiff with a Vaughn Index
before the filing of this action.”) (internal quotation marks and
alteration omitted); Schwarz v. Department of Treasury, 131 F.
Supp. 2d 142, 147 (D.D.C. 2000) (“[T]here is no requirement that
an agency provide a ‘search certificate’ or a ‘Vaughn’ index on an
initial request for documents. The requirement for detailed
declarations and Vaughn indices is imposed in connection with a
motion for summary judgment filed by a defendant in a civil action
pending in court.”) (footnote omitted); cf. Mead Data Central, Inc.
v. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)
(although “the objective of the Vaughn requirements . . . is equally
applicable to proceedings within the agency,” no error where those
requirements were satisfied in district court proceedings).
14
simply stating its future intent to produce some non-exempt
documents.
Moreover, there would be no need for the unusual
circumstances safety valve if, as the FEC argues, the usual 20-
working-day timeline merely required an agency to make a
general promise to produce non-exempt documents and claim
exemptions in the future. An agency could always provide
that kind of promise within 20 working days of receiving a
FOIA request. The number of documents to be examined and
the difficulty of gathering those documents, for example, have
no bearing on the agency’s ability to provide such a formulaic
response to requesters within 20 working days. Thus, the
FEC’s reading of FOIA would render the unusual
circumstances safety valve a worthless addendum to the
statute. Such a result strongly suggests that the agency’s
interpretation is impermissible. See Williams v. Taylor, 529
U.S. 362, 404 (2000) (“It is . . . a cardinal principle of
statutory construction that we must give effect, if possible, to
every clause and word of a statute.”) (internal quotation marks
omitted).
Put simply, the unusual circumstances provision to
extend the time for making a “determination” makes sense
only if the statute contemplates that responsive documents
must be collected and examined, and decisions made about
which to produce, in order for the agency to make a
“determination.”
Fourth, the statute provides that, once in court, an agency
may further extend its response time by means of the
“exceptional circumstances” safety valve. That provision
says that if exceptional circumstances exist and an agency “is
exercising due diligence in responding to the request,” a court
15
may grant the agency “additional time to complete its review
of the records.” 5 U.S.C. § 552(a)(6)(C)(i) (emphasis added).
Like the unusual circumstances provision, the exceptional
circumstances provision presumes that an agency operating
outside the 20-working-day window needs more time to finish
gathering and reviewing documents, and more time to decide
what to produce and to withhold. The agency would not need
more time merely to state a preliminary intention to produce
whatever non-exempt records are eventually found. Again,
the FEC’s theory of the statute would negate any need for the
exceptional circumstances provision. The fact that the FEC’s
interpretation renders the exceptional circumstances provision
unnecessary further confirms that Congress created a different
statute from the one the FEC describes.
All of those statutory provisions together reinforce the
conclusion that a “determination” under Section
552(a)(6)(A)(i) must be more than just an initial statement
that the agency will generally comply with a FOIA request
and will produce non-exempt documents and claim
exemptions in the future. Rather, in 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. 6
6
Our opinion today does not affect an agency’s ability to
issue, where appropriate, a “Glomar” response to a FOIA request.
Because of security or privacy concerns, a “Glomar” response
refuses to confirm or deny that the requested records exist. See
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
16
To be clear, a “determination” does not require actual
production of the records to the requester at the exact same
time that the “determination” is communicated to the
requester. Under the statutory scheme, a distinction exists
between a “determination” and subsequent production. See
Spannaus v. DOJ, 824 F.2d 52, 59 n.7 (D.C. Cir. 1987). As to
actual production, FOIA requires that the agency make the
records “promptly available,” which depending on the
circumstances typically would mean within days or a few
weeks of a “determination,” not months or years. 5 U.S.C.
§ 552(a)(3)(A), (a)(6)(C)(i). So, within 20 working days (or
30 working days in “unusual circumstances”), an agency must
process a FOIA request and make a “determination.” At that
point, the agency may still need some additional time to
physically redact, duplicate, or assemble for production the
documents that it has already gathered and decided to
produce. The agency must do so and then produce the records
“promptly.” Our reading of “determination” thus neatly
complements the requirement that documents be made
“promptly available.”
In short, unlike the FEC’s theory, our reading of
“determination” sensibly harmonizes the default 20-working-
day timeline, the unusual circumstances safety valve, the
exceptional circumstances safety valve, and the prompt
production requirement. Together, those provisions create a
comprehensive scheme that encourages prompt request-
processing and agency accountability. To summarize: An
agency usually has 20 working days to make a
“determination” with adequate specificity, such that any
withholding can be appealed administratively. 5 U.S.C.
§ 552(a)(6)(A)(i). An agency can extend that 20-working-day
timeline to 30 working days if unusual circumstances delay
the agency’s ability to search for, collect, examine, and
17
consult about the responsive documents. Id. § 552(a)(6)(B).
Beyond those 30 working days, an agency may still need
more time to respond to a particularly burdensome request. If
so, the administrative exhaustion requirement will not apply.
But in such exceptional circumstances, the agency may
continue to process the request, and the court (if suit has been
filed) will supervise the agency’s ongoing progress, ensuring
that the agency continues to exercise due diligence in
processing the request. Id. § 552(a)(6)(C). 7 If the 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. This
scheme provides an incentive for agencies to move quickly
but recognizes that agencies may not always be able to adhere
to the timelines that trigger the exhaustion requirement. 8
To all of this, the FEC’s overarching retort is that it
would be “a practical impossibility for agencies to process all
[FOIA] requests completely within twenty days.” FEC Br.
34. We agree entirely with the FEC on this point. We are
intimately familiar with the difficulty that FOIA requests pose
for executive and independent agencies. But contrary to the
FEC’s suggestion, our reading of the statute recognizes and
7
A district court may of course consider FOIA cases in the
ordinary course. There is no statutory mandate for district courts to
prioritize FOIA cases ahead of other civil cases on their dockets.
8
In fact, several statutory provisions acknowledge that some
requests may require significant processing time to search for,
collect, examine, and consult about documents before a
“determination” can be made. For example, FOIA provides that
agencies may establish multitrack procedures based on the amount
of work or time a request entails, and FOIA requires that agencies
establish a tracking system for requests that will take longer than 10
days to process. See 5 U.S.C. § 552(a)(6)(D), (a)(7).
18
accommodates that reality. As our opinion today emphasizes,
the 20-working-day period (actually 30 working days with the
unusual circumstances provision) is the relevant timeline that
the agency must adhere to if it wants to trigger the exhaustion
requirement before suit can be filed. The unusual
circumstances and exceptional circumstances provisions
allow agencies to deal with broad, time-consuming requests
(or justifiable agency backlogs) and to take longer than 20
working days to do so. To reiterate, if the 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.
It 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. See Milner v. Department of the Navy,
131 S. Ct. 1259, 1271 (2011) (“All we hold today is that
Congress has not enacted the FOIA exemption the
Government desires. We leave to Congress, as is appropriate,
the question whether it should do so.”).
***
Because the FEC did not make and communicate a
“determination” within the meaning of 5 U.S.C.
§ 552(a)(6)(A)(i) within 20 working days of receiving
CREW’s FOIA request, CREW is deemed to have exhausted
its administrative appeal remedies under
Section 552(a)(6)(C)(i), and its suit may proceed. We reverse
19
the District Court’s grant of summary judgment to the FEC,
and we remand for further proceedings.
So ordered.