TRANSPARENCY TUESDAY: Federal appeals court puts a stop to the “FOIA death spiral”

For years, federal agencies have been freezing journalists in public-records purgatory with a maddening tactic: The “thanks for your request, we’ll respond to it (someday)” letter.

It’s the bureaucratic equivalent of the spinning beach ball of death, and twice as frustrating.

Getting the “non-response response” letter trapped the requester in a no-win predicament. Under the federal Freedom of Information Act, once an agency responds to your request, you can’t go to court until you’ve appealed all the way through internal agency channels.

And you can’t appeal through agency channels unless you have a denial.

And a letter that says “we’re working on it” isn’t a denial.

It’s — the spinning beach ball of death.

That log-rolling tactic came to an overdue end on Tuesday, with a 3-0 ruling by a panel of federal judges on the nation’s second-most influential court, the D.C. Circuit U.S. Court of Appeals.

In a case brought by a citizen ethics watchdog group, the D.C. Circuit ruled that the 20-weekday deadline in the FOIA statute for an agency to provide a “determination” means just that — a response, not a hold-your-horses letter.

Now, before you get too excited, a “determination” does not (unfortunately) mean a complete production of all requested records. That would be too much to hope for (even though it appears to be what the FOIA statute calls for), considering the well-documented backlog that results in some information requests literally languishing for years.

According to the D.C. Circuit, here is what a requester is entitled to receive within 20 business days of filing a federal FOIA request for public documents:

[W]ithin 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. … [T]he 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.

That doesn’t seem like much to celebrate, but it’s potentially huge. To decide which documents will be produced and which will be withheld, an agency (normally) will have to actually locate and review the records. Which means someone will have to act on the request almost immediately. Which means that — once the agency provides that determination letter — it will be implausible to say that identifying and locating the records will take years.

If a requester does not receive an adequately detailed response within 20 working days, then the requester no longer is obligated to appeal up the agency’s ladder and can go straight to court. That can be a lifesaver when a deadline-sensitive story relies on hard-to-get federal documents.

As Judge Brett M. Kanavaugh wrote in Tuesday’s ruling, “the statute does not allow agencies to keep FOIA requests bottled up for months or years on end while avoiding any judicial oversight.”

One detail inadequately addressed by the D.C. Circuit’s ruling is irritating practice of many federal agencies to reply to FOIA requests with a “kitchen sink” response that cites every single exemption in the law, even ones that cannot conceivably apply. The strong implication of Tuesday’s ruling — that an agency must “indicate … the exemptions it will claim” — is that the response should be limited only to the exemptions that realistically might cover the documents. But deadline-crunched agencies will probably rely even more heavily on the kitchen-sink form letter — until a future lawsuit puts an end to that tactic, too.

Remember that federal FOIA applies only to U.S. government agencies — the Pentagon, the State Department, the FBI — and not to state, county or city government, each of which is covered by state FOI laws. But many of these state laws are modeled on the federal statute and rely on federal interpretations for guidance, so the D.C. Circuit’s ruling may have helpful reverberations even for those requesting records from schools, colleges and other state-level agencies.

The case is Citizens for Responsibility and Ethics in Washington v. Federal Elections Commission.