Case Detail
| Case Title | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U.S. DEPARTMENT OF INTERIOR | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2005cv02339 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2005-12-07 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2007-07-30 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Reggie B. Walton | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Citizens for Responsibility and Ethics in Washington submitted a FOIA request to the Department of Interior for records concerning communications with lobbyist Jack Abramoff. Based on media reports, CREW asked for more records than had been produced by the agency. After hearing nothing further from the agency, CREW filed suit. Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | U.S. DEPARTMENT OF INTERIOR | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [13] FOIA Project Annotation: In a decision that shows how difficult it can be for even a sophisticated requester to assess his or her options during the back and forth of multiple FOIA requests, Judge Reggie Walton has ruled that the public interest group Citizens for Responsibility and Ethics in Washington failed to exhaust its administrative remedies for several FOIA requests it made to the Interior Department concerning the Abramoff scandal. At the heart of the dispute was whether emails, the existence of which were revealed by Washington Post reporter Susan Schmidt after Interior had responded to CREW's FOIA requests, should have been disclosed to CREW in the first place and whether the disclosure of the emails to Schmidt provided the necessary evidence that Interior's response to CREW was inadequate. CREW made an FOIA request on March 18, 2005 concerning contacts that DOI had had with Abramoff and others involved with the Indian casino scandal, including members of Congress. The agency contacted CREW and suggested it would search through documents disclosed in response to previous similar FOIA requests and, according to the agency, CREW agreed to exclude a search of electronic records. This resulted in a partial response containing previously released records and later responses containing records from the Secretary's Automated Correspondence Indexing System. CREW submitted another request to the Office of the Secretary on April 5 to include the electronic records that were excluded from the earlier request. This request was referred to the Bureau of Indian Affairs, which responded on July 29 that it had no responsive records; CREW also sent a separate request to BIA on April 21, and BIA responded on July 29 by telling CREW its request was too broad. The Office of the Secretary responded on August 24 by releasing 11 documents. After the Post published an article on August 28 referring to emails from DOI that CREW believed were responsive to its request, it filed yet another FOIA request on September 26 asking for the emails referenced by the Post. The agency suggested that CREW ask for records provided to Schmidt that had not been provided yet to CREW. The agency responded on September 27 by providing records sent to Schmidt, but none of them included the emails referred to in the newspaper article. CREW then filed an administrative appeal on October 20, claiming that all the requests were related to each other and that it was not until it followed up on the Post article that it was aware that the agency's search was inadequate. Walton started his analysis by indicating that "the District of Columbia Circuit has conclusively held that 'exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under [the] FOIA.' . . . Here, DOI regulations state that an appeal on the grounds that a search pursuant to a FOIA request was inadequate 'must be received by the FOIA Appeals Officer no later than 30 workdays after the date of the final response.' Therefore, the plaintiff's October 20, 2005 attempt to exhaust its administrative remedies in connection with FOIA requests for which final responses were provided in April and July 2005 is indisputably untimely." Saying that exhaustion of administrative remedies was favored to allow the agency an opportunity to re-visit its actions but that a court exercising its discretion could find that immediate judicial review outweighed the government's interest in administrative efficiency, Walton noted that "the purposes of exhaustion would be substantially ill-served by allowing the plaintiff to contest the adequacy of the DOI's responses in court without first having proceeded through the proper administrative channels. The plaintiff did not 'pursue the administrative process to its end,' as it claims, despite having ample time to do so. Instead, the plaintiff filed late administrative appeals to certain agency responses to its FOIA requests and failed to appeal others at all. Excusing exhaustion in this case would therefore interfere with the defendant agency's autonomy and would deprive it of 'the opportunity to correct [its] own errors.'" He added that "although the plaintiff has repeatedly represented, as justification for the late filing of its appeal, that it did not become aware of the potential inadequacies of the defendant's search until the Washington Post article of August 28, 2005, it conveniently omits from its complaint the fact that the OS issued a final response to the plaintiff's April 5th request, a request specifically asking for electronic records, on August 24, 2005. CREW therefore had until October 5, 2006, thirty workdays from the defendant's final response, to appeal and challenge the adequacy of the DOI's search. The plaintiff's revelation about the potential inadequacy of the defendant's searches occurred on August 28, 2005, within four days after the final response was issued and well within the 30-day time period to file an appeal. However, the plaintiff never appealed this response, nor has it provided a satisfactory explanation for its inaction." CREW argued that it was not trying to end-run the administrative process and had worked diligently with the agency throughout the cycle of requests. But Walton responded that "again, plaintiff ignores the fact that it had adequate opportunity to appeal the agency's response to its request for emails within the 30-day time period after learning of the existence of possible responsive emails, and failed to do so. . . The Court fails to appreciate how excusing the exhaustion requirement in this case would further the interest in agency autonomy that the requirement is designed to promote." CREW told Walton that the emails referred to in the Post article were "obvious leads" that should have been pursued by the agency. However, Walton pointed out that the "leads" came "after the agency conducted its searches in March and April of 2005. The Court disagrees with the plaintiff that an agency's hesitancy to pursue potential leads after its search has been completed deems the search inadequate and justifies reviving unexhausted claims." He added that "the interest in governmental efficiency in processing requests is therefore applicable to this case. If the DOI were required to conduct new searches after they had issued final responses, it would delay the processing of new requests and create a substantial backlog." Instead, Walton suggested CREW had a viable alternative. He observed that "the more efficient method of obtaining information, rather than attempting to revive an unexhausted claim by filing a late appeal, would be for the plaintiff to file an additional FOIA request. The plaintiff has the ability to file additional FOIA requests at relatively little inconvenience and cost. Indeed, there is nothing to prevent the plaintiff from filing a second, more specific FOIA request, which by its terms would be likely to encompass the documents it now seeks." Part of the misunderstanding that led to litigation in this case is due to the way in which both sides look at the process itself. While CREW viewed its request as being constantly modified through negotiation and advice from the agency, the agency looked at every modification as resulting in a new, discrete FOIA request. In this scenario, CREW would have viewed the process as interconnected, with all the requests as part of a single quest for information, while Interior viewed each request as separate and complete, albeit similar in substance. Although Interior's advice was certainly useful and well-intentioned, when viewed in the context of litigation it created a substantial but perhaps unnecessary dispute between the parties.
Issues: Litigation - Jurisdiction - Failure to Exhaust | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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