Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that an agency, in making a determination on a FOIA request, need only indicate its intention to comply with the request and provide an adequate description of how it intends to do so to trigger a requester's obligation to exhaust administrative remedies by filing an administrative appeal. In so doing, the ruling suggests that agencies may be able to tailor their routine acknowledgement letters in such a way as to provide enough of an explanation of how a search and review would be conducted as to constitute a determination for purposes of the statute. The case involved a request by CREW for records from the Federal Election Commission related to correspondence pertaining to agency business between three commissioners and any outside entities. The FEC acknowledged receipt of the request by email the next day and granted CREW a fee waiver. During the next ten days, the parties agreed to exclude certain records from the initial search and to provide documents on a rolling basis. CREW sent a letter clarifying the scope of its request a month after its initial request. About two months after the initial request was submitted, the FEC informed CREW that it had received the first set of potentially responsive documents from its searches, was still performing more searches, and was reviewing thousands of potentially relevant documents. CREW claimed the agency had said it could release the first batch of responsive documents within two weeks, and filed suit when the agency failed to do so. The FEC responded with the first batch of records about three weeks later, and completed its response ten days after that by releasing two more batches of records. At that time, the FEC provided an explanation of its exemption claims and told CREW that it could file an appeal. The FEC contended that CREW's complaint was moot and, alternatively, that it had failed to exhaust administrative remedies. On the matter of mootness, the FEC argued that "its production of any documents in response to the request moot's CREW's complaint, which sought to compel some response to CREW's request." Indicating that the agency's argument "has some intellectual appeal," Kollar-Kotelly noted that "defendant implicitly argues that a claim under the [timeliness] section would not have been ripe at the time Plaintiff filed suit because the agency had not yet produced or withheld documents such that the Court could evaluate the adequacy of the agency's response. It does not appear that courts inside or outside of this Circuit take such a formalistic approach to complaints filed pursuant to the FOIA." She pointed out that "the FEC is correct that to the extent that Plaintiff's Complaint challenged the timeliness of [the records'] production, it is now moot. However, the Court is not willing to dismiss the Complaint in its entirety because the Complaint does assert a substantive challenge to the agency's response [under the section allowing challenges to exemption claims and the adequacy of the search]." Kollar-Kotelly then turned to the exhaustion claim. She cited the constructive exhaustion provision, § 552(a)(6)(C)(i), that provides that a requester constructively exhausts administrative remedies "if the agency fails to comply with the applicable time provisions of this paragraph." She next cited §552(a)(6)(A)(i), which requires an agency to determine within 20 working days "whether to comply with such request" and to provide "the reasons therefor" and "the right of such person to appeal to the head of the agency any adverse determination." CREW argued that "a response from an agency is not a 'determination' â€" for purposes of complying with § 552(a)(6)(A)(i) or triggering the renewed duty to exhaust administrative remediesâ€"unless it is the final substantive response, including a notice of the requesting party's right to appeal." CREW pointed to the Justice Department's Office of Information Policy's FOIA Guide that stated that "an agency response that merely acknowledges receipt of a request does not constitute a 'determination' under the FOIA in that it neither denies records nor grants the right to appeal the agency's determination." But Kollar-Kotelly noted that "the Guide fails to elaborate on what would amount to a 'determination' under the FOIA." She explained that "the plain text of the actual statute indicates three things are required in the notice to the requesting party: (1) whether the agency intends to comply with the request; (2) the reasons for the agency's compliance or non-compliance; and (3) notice of the right to appeal if the determination was adverse." She pointed out that a provision in § 552(a)(6)(C)(i) required that "'[u]pon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making a request,' would guard against any abuse by responding agencies." Kollar-Kotelly indicated that "clearly, the FOIA does not require the responding agency to respond and produce responsive documents within twenty days in order to require exhaustion of administrative remedies. Rather, in the event the agency intends to produce documents in response to the request, the agency need only (1) notify the requesting party within twenty days that the agency intends to comply; and (2) produce the documents "promptly." She observed that "in this case, the FEC did more than acknowledge receipt of Plaintiff's request before it filed suit. CREW concedes that within two days of transmitting the request to the FEC, the FEC agreed to produce responsive documents on a rolling basis. The FEC was also reasonably prompt in producing documents to CREW: the parties did not finalize the scope of CREW's request until [nearly a month after it was originally submitted]; the FEC performed the relevant searches and began reviewing potentially responsive documents within four weeks; and the FEC produced the responsive documents six weeks later. Ten weeks to search, review, and produce documents in response to relatively broad requests in this context is not unreasonably long as to require a finding of constructive exhaustion." Kollar-Kotelly relied primarily on Oglesby v. Dept of Army, 920 F.2d 57 (D.C. Cir. 1990) for support. She noted that the Oglesby court held an agency's response "is sufficient for purposes of requiring an administrative appeal if it includes: the agency's determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse." But she indicated that several other recent decisions, particularly Love v. FBI, 660 F. Supp. 2d 56 (D.D.C. 2009), bolstered her analysis as well. In Love, Judge Reggie Walton ruled that Love failed to exhaust his administrative remedies because he had not appealed the DEA's notification that it was processing his request. CREW argued that a case the FEC had originally citedâ€"Petit-Frere v. U.S. Attorney's Office for the Southern District of Florida, 664 F. Supp. 2d 68 (D.D.C. 2009), in which Judge Richard Roberts found the plaintiff had failed to appeal a notification from EOUSA that processing of his request could take nine monthsâ€"was wrong because it contradicted both Oglesby and Spannaus v. Dept of Justice, 824 F.2d 52 (D.C. Cir. 1987), in which the D.C. Circuit held that a letter acknowledging receipt of a request and indicating the request would be forwarded to FBI headquarters was not a "determination." Kollar-Kotelly agreed that it was hard to square Petit-Frere with Spannaus, but noted that the Oglesby analogy was a closer call. She pointed out that in Oglesby, the D.C. Circuit indicated that "it was still an open question as to whether a response indicating the agency was 'processing' a claim was a sufficient determination to satisfy the time limits provided in FOIA." She explained that "ultimately, the adequacy of a response indicating a request is being 'processed' is irrelevant to this case, as the FEC indicated it would in fact produce records in response to CREW's request. Thus, the FEC provided the response that the Oglesby court noted is a sufficient 'determination' under the FOIA to trigger the administrative exhaustion requirement. . ." CREW also argued that Congress intended to allow direct access to courts in the face of agency delay and that to require exhaustion here "would deprive this judicially sanctioned approach of any utility." But Kollar-Kotelly disagreed. She noted that "this is incorrect. Under the Court's interpretation of § 552(a)(6)(A), requesting parties still have immediate access to the courts in the event that the agency fails to (1) respond at all; or (2) merely indicates it is 'processing' the request, but does not indicate whether the agency will comply." She added that "the Court is not unsympathetic to the Plaintiff's concern that this interpretation could theoretically lead to the situation where, as in Petit-Frere, the agency failed to produce documents for nearly a year, yet the requesting party was still unable to seek judicial intervention. The Court notes that adherence to the language of the third sentence of § 552(a)(6)(C)(i), which requires 'prompt' production of responsive documents if an agency intends to comply with the request, will guard against any abuse by responding agencies." Kollar-Kotelly pointed out that "exhaustion also pays an important role in ensuring consistency in responding to FOIA requests. In this case, she observed, exhaustion would further the goals of the statute. She explained that "the FEC has not had the opportunity to address any of the objections CREW lodges to the scope of the production, adequacy of the searches, or claimed exemptions and withheld documents. Providing the FEC the opportunity to review CREW's objections through the administrative appeals process would among other things allow the agency time to correct any errors alleged by CREW and create a full record for the Court to review should CREW seek additional review of the FEC's decision. Requiring exhaustion in this case will only further the ends of justice."
Issues: Determination

FOIA Project Annotation: Judge Colleen Kollar-Kotelly awarded CREW $153,000 in attorney's fees for its work litigating the case, including an additional $20,000 for the costs of responding to the FEC's objections to the report and recommendation prepared by Magistrate Judge John Facciola. Relying on the D.C. Circuit's decision in the case, Facciola had found CREW had substantially prevailed and was eligible for an award. Agreeing with Facciola, Kollar-Kotelly noted that in its decision 'the D.C. Circuit provided guidance as to what type of response from an agency constitutes a determination that must be communicated to a FOIA requester in the future in order to trigger the requirement that a FOIA requester must exhaust administrative remedies before he or she may proceed to district court. . .The Court agrees with the reasoning in the Request and Recommendation that CREW substantially prevailed by virtue of the favorable D.C. Circuit opinion. . ." Because the FEC had conceded that the disclosure of the records was in the public interest and that CREW had neither a commercial or personal interest in the records, Kollar-Kotelly focused solely on the reasonableness of the agency's position. The FEC argued that it properly relied on Kollar-Kotelly's ruling that CREW was required to file an administrative appeal as the basis for not producing additional documents at an earlier time. She agreed with Facciola's explanation that "win, lose, or draw, the FEC would have had to produce the documents eventually: had it won on appeal, CREW would have needed only to exhaust whatever administrative remedy the FEC imposed before the FEC would have to turn over the documents." Kollar-Kotelly noted that "reliance on this Court's ruling on a procedural issue was not a reasonable basis for failing to produce documents that the FEC, by its own admission, was still required to produce by law." The agency also contended that its failure to provide more documents until 2013 was the result of its understanding of the parameters of a narrowed search agreed to by CREW. But Kollar-Kotelly pointed out that "the FEC did not act reasonably in withholding documents for two years identified in CREW's opposition as documents that 'the agency had failed to produce' in its first batch of documents responsive to the narrowed search, and to which the FEC itself has asserted it had no legal basis to withhold." Having concluded CREW was entitled to fees, Kollar-Kotelly next addressed the agency's complaints about the size of the award. The agency's primary argument was that because CREW's timesheets had been found wanting in two other district court cases the same problems were likely present in this case. Relying on Role Models America v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004), the FEC argued that CREW's timesheets were likely inflated. But Kollar-Kotelly explained that Role Models and related cases "stand for the proposition that the court must determine whether the fee request appears reasonable on its face based on the type of work that was required. . .Here, Judge Facciola properly found that CREW's request for $139,998.68 in attorney's fees in a 'case [that] presented novel legal issues that required substantial analysis and advocacy' was not objectively unreasonable. . .[T]he holding in Role Models is distinguishable from the instant matter where the requested fees do not appear unreasonable on their face based on the fact that the instant matter required significant legal research and briefing for the appeal of a novel legal issue." Kollar-Kotelly then went on to award CREW $20,000 for its response to the agency's objections. But she rejected CREW's attempt to use the CPI Laffey Matrix to calculate those rates, noting that "the parties have already conceded that the USAO Laffey Matrix [which used a less precise calculation] is applicable in this matter."
Issues: Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding, Litigation - Attorney's fees - Entitlement - Calculation of award

FOIA Project Annotation: After her original ruling against CREW on the issue of what constituted a determination of a request for purposes of exhausting administrative remedies was soundly overturned by the D.C. Circuit, Judge Colleen Kollar-Kotelly has awarded CREW $153,000 in attorney's fees for its work litigating the case, including an additional $20,000 for the costs of responding to the FEC's objections to the report and recommendation prepared by Magistrate Judge John Facciola. Relying on the D.C. Circuit's decision, Facciola had found CREW had substantially prevailed and was eligible for an award. Agreeing with Facciola, Kollar-Kotelly noted that in its decision 'the D.C. Circuit provided guidance as to what type of response from an agency constitutes a determination that must be communicated to a FOIA requester in the future in order to trigger the requirement that a FOIA requester must exhaust administrative remedies before he or she may proceed to district court. . .The Court agrees with the reasoning in the Request and Recommendation that CREW substantially prevailed by virtue of the favorable D.C. Circuit opinion. . ." Because the FEC had conceded that the disclosure of the records was in the public interest and that CREW had neither a commercial or personal interest in the records, Kollar-Kotelly focused solely on the reasonableness of the agency's position. The FEC argued that it properly relied on Kollar-Kotelly's ruling that CREW was required to file an administrative appeal as the basis for not producing additional documents at an earlier time. She agreed with Facciola's explanation that "win, lose, or draw, the FEC would have had to produce the documents eventually: had it won on appeal, CREW would have needed only to exhaust whatever administrative remedy the FEC imposed before the FEC would have to turn over the documents." Kollar-Kotelly noted that "reliance on this Court's ruling on a procedural issue was not a reasonable basis for failing to produce documents that the FEC, by its own admission, was still required to produce by law." The agency also contended that its failure to provide more documents until 2013 was the result of its understanding of the parameters of a narrowed search agreed to by CREW. But Kollar-Kotelly pointed out that "the FEC did not act reasonably in withholding documents for two years identified in CREW's opposition as documents that 'the agency had failed to produce' in its first batch of documents responsive to the narrowed search, and to which the FEC itself has asserted it had no legal basis to withhold." Having concluded CREW was entitled to fees, Kollar-Kotelly next addressed the agency's complaints about the size of the award. The agency's primary argument was that because CREW's timesheets had been found wanting in two other district court cases the same problems were likely present in this case. Relying on Role Models America v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004), the FEC argued that CREW's timesheets were likely inflated. But Kollar-Kotelly explained that Role Models and related cases "stand for the proposition that the court must determine whether the fee request appears reasonable on its face based on the type of work that was required. . .Here, Judge Facciola properly found that CREW's request for $139,998.68 in attorney's fees in a 'case [that] presented novel legal issues that required substantial analysis and advocacy' was not objectively unreasonable. . .[T]he holding in Role Models is distinguishable from the instant matter where the requested fees do not appear unreasonable on their face based on the fact that the instant matter required significant legal research and briefing for the appeal of a novel legal issue." Kollar-Kotelly then went on to award CREW $20,000 for its response to the agency's objections. But she rejected CREW's attempt to use the CPI Laffey Matrix to calculate those rates, noting that "the parties have already conceded that the USAO Laffey Matrix [which used a less precise calculation] is applicable in this matter."
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2011-05-23	1	COMPLAINT against FEDERAL ELECTION COMMISSION ( Filing fee $ 350, receipt number 4616039011) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/24/2011)
2011-05-23		SUMMONS (3) Issued as to FEDERAL ELECTION COMMISSION, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/24/2011)
2011-05-23	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (jf, ) (Entered: 05/24/2011)
2011-05-24	3	ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on May 24, 2011. (SM) (Entered: 05/24/2011)
2011-06-23	4	MOTION to Dismiss or, in the Alternative, for Summary Judgment by FEDERAL ELECTION COMMISSION (Attachments: # 1 Declaration, # 2 Declaration)(Hajjar, Steve). Added MOTION for Summary Judgment on 6/24/2011 (znmw, ). (Entered: 06/23/2011)
2011-07-07	5	Memorandum in opposition to re 4 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit, # 2 Statement of Facts, # 3 Text of Proposed Order)(Weismann, Anne) (Entered: 07/07/2011)
2011-07-08	6	NOTICE of Erratum by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re 5 Memorandum in Opposition, (Attachments: # 1 Errata)(Weismann, Anne) (Entered: 07/08/2011)
2011-07-18	7	REPLY to opposition to motion re 4 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment filed by FEDERAL ELECTION COMMISSION. (Hajjar, Steve) (Entered: 07/18/2011)
2011-08-15	8	NOTICE of Recent Decision by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re 5 Memorandum in Opposition, (Attachments: # 1 Exhibit)(Weismann, Anne) (Entered: 08/15/2011)
2011-08-17	9	RESPONSE re 8 Notice (Other) of Recent Decision filed by FEDERAL ELECTION COMMISSION. (Hajjar, Steve) (Entered: 08/17/2011)
2011-08-19	10	NOTICE of Appearance by David Brett Kolker on behalf of FEDERAL ELECTION COMMISSION (Kolker, David) (Entered: 08/19/2011)
2011-08-19	11	NOTICE of Appearance by Kevin Deeley on behalf of FEDERAL ELECTION COMMISSION (Deeley, Kevin) (Entered: 08/19/2011)
2011-12-30	12	ORDER. For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED; it is FURTHER ORDERED that Defendant's motion for summary judgment for failure to exhaust administrative remedies is GRANTED. This case is dismissed in its entirety. Signed by Judge Colleen Kollar-Kotelly on 12/30/11. (lcckk2) (Entered: 12/30/2011)
2011-12-30	13	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 12/30/11. (lcckk2) (Entered: 12/30/2011)
2012-01-09	14	NOTICE OF APPEAL as to 12 Order on Motion to Dismiss, Order on Motion for Summary Judgment,, by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. Filing fee $ 455, receipt number 0090-2787983. Fee Status: Fee Paid. Parties have been notified. (Weismann, Anne) (Entered: 01/09/2012)
2012-01-10	15	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 14 Notice of Appeal,. (znmw, ) (Entered: 01/10/2012)
2012-01-11		USCA Case Number 12-5004 for 14 Notice of Appeal, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (td, ) (Entered: 01/11/2012)
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