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Petition to Repeal Department of Justice Rule on FOIA Appeals

Office of the Attorney General
United States Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530


Public Citizen, Inc. and the Freedom of Information Clearinghouse submit this petition under 5 U.S.C. § 553(e) of the Administrative Procedure Act to request that the Attorney General repeal a provision in the Department of Justice (DOJ) regulations implementing the Freedom of Information Act (FOIA). Specifically, the Attorney General should repeal the Rule set forth at 28 C.F.R. § 16.9(a)(3), which states that appeals under FOIA will normally not be processed by the Department once the matter has become the subject of litigation. Not only does this provision violate notions of fairness and judicial economy, but it is also inconsistent with the language and legislative intent of FOIA, 5 U.S.C. §552 et seq.

Both Public Citizen and the Freedom of Information Clearinghouse have had extensive experience, as requesters and as counsel for requesters, with agencies' implementation of FOIA. Public Citizen, founded by Ralph Nader in 1972, is a nonprofit consumer advocacy organization with over 150,000 supporters nationwide. From its founding, Public Citizen has regularly used FOIA to request records related to its advocacy efforts and has represented FOIA requesters in approximately 300 lawsuits challenging government secrecy. The Freedom of Information Clearinghouse is a project of Ralph Nader's Center for the Study of Responsive Law, directed by a Public Citizen lawyer. The Clearinghouse has provided technical and legal assistance since 1972 to individuals, public interest groups and the media who seek access to information held by government agencies.

Public Citizen and the Clearinghouse have a longstanding commitment to enhanced public access to government-held information under FOIA and submit this petition to ensure that DOJ's regulations correspond to Congress's mandate to open up government actions to public scrutiny.


Public Citizen and the Freedom of Information Clearinghouse request that the Department repeal the provision of its FOIA regulations found at 28 C.F.R. § 16.9(a)(3). That section provides: "An appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation." According to the Department's most recent FOIA Annual Report, during fiscal year 1999 the Department did not render decisions on 92 appeals because they became the subject of litigation. Besides running counter to the language of FOIA and Congress's intent in enacting it, this regulation does not promote judicial economy, is likely to increase the Department's litigation costs, and unfairly penalizes those requesters who exercise the right provided to them by statute to seek judicial review of the Department's denial of their request.

The language of the Act does not authorize the Department to refuse to act on an appeal where the underlying request has become the subject of litigation. Administrative review of initial decisions by FOIA personnel is mandatory, not discretionary, and must be completed within strict time limits. The main provision of the Act relating to appeals states that agencies "shall ... (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal." 5 U.S.C. § 552(a)(6)(A). This language clearly requires that all appeals must be processed by the agency. The only qualifications to this language regarding the processing of appeals appears in the next paragraph regarding delays due to unusual circumstances. That paragraph provides that under "unusual circumstances as specified in this subparagraph," the time that an agency has to respond to a request or appeal may be extended, but for no more than ten working days. 5 U.S.C. § 552(a)(6)(B)(i). The possible "unusual circumstances" are enumerated at 5 U.S.C. § 552(a)(6)(B)(iii) and make no mention of requests that are subject to litigation. Because FOIA makes the processing of appeals mandatory, regardless of whether the request becomes the subject of litigation, the Department has no basis for refusing to process appeals regarding such requests.

In enacting FOIA, Congress provided for both appeals to the agency processing the request, 5 U.S.C. § 552(a)(6)(A), and judicial review of adverse agency decisions, 5 U.S.C. § 552(a)(4)(B). Both serve important, and separate, functions in promoting public access to information. Appeals within the agency allow for more rapid resolution of requests without the costs of litigation and give a high level agency official an opportunity to review the initial non- disclosure decision, while judicial review provides for independent review of final agency decisions. Thus, judicial review is not intended to duplicate the administrative appeals process, and the Department's regulation errs in treating the two forms of review as if they were redundant or duplicative.

. The central goal of FOIA is to promote broad public access to government information in a timely fashion, and the Department's regulation frustrates this purpose. On appeal DOJ frequently reverses its initial decision to withhold some or all of the information, making the litigation process unnecessary. According to the Department's most recent FOIA Annual Report, of the 2,423 appeals that were adjudicated by the Department during fiscal year 1999, 840, or nearly 35 percent, either completely or partially reversed a decision to deny the request. Under the Department's regulation, however, this possibility is foreclosed once litigation begins. This delays disclosure and forces the court and both parties to incur the costs and other burdens of litigation that could be avoided if the appeal was allowed to proceed.

In addition, processing of FOIA appeals after the requester has initiated judicial review will increase public access to government information that the Department itself believes should be released. Agency appeals are processed by a higher-ranking agency official than the first- round decisionmaker. The officials deciding appeals often have legal training and generally more experience in FOIA cases, and sometimes have more discretion in authorizing disclosure. In addition to frequently reversing initial non-disclosure decisions, these officials have discretion to permit disclosure of records that qualify for an exemption if disclosure would not harm the government's interests. Current Administration policy "strongly encourage[s]" agencies to make discretionary disclosures "whenever possible under the Act. Such disclosures are possible under a number of FOIA exemptions, especially when only a governmental interest would be affected." Attorney General's Memorandum to Heads of Departments and Agencies Regarding the Freedom of Information Act (Oct. 4, 1993). The Department's regulation is in violation of this policy because it precludes the FOIA appeals officer from approving discretionary disclosures where the requester has filed suit..

Another, more practical reason the Department's regulation is unwise is that it will tend to increase the Department's litigation costs. The regulation will require the Department to litigate the denial of many FOIA cases that might have been reversed on administrative appeal. The statistics cited above suggest that a significant number, perhaps 30 to 40, of the 92 appeals the Department did not process during fiscal year 1999 because they were the subject of litigation might have been resolved this way. The Department will have to pay more in litigation costs to defend lawsuits in these cases than it would have cost to resolve them through the appeals process, and in cases where the court finds that the initial decision was erroneous and orders the Department to release the requested records, it may also award attorneys' fees pursuant to 5 U.S.C. §552(a)(4)(E), further increasing the Department's costs. Any administrative costs saved by refusing to process appeals that are the subject of litigation (which presumably motivated the Department to adopt this provision in the first place) will be outweighed by the increased litigation costs this provision will impose.

Providing for administrative review of decisions that have become the subject of litigation also promotes judicial economy. Courts have consistently emphasized the need for judicial economy and the role that full administrative procedures play in ensuring that courts are not unnecessarily burdened by appeals of agency decisions. See, for example, McKart v. U.S., 395 U.S. 185, 195 (1969) (discussing judicial economy as one of the justifications underlying the doctrine requiring exhaustion of administrative remedies); Pavano v. Shalala, 95 F. 3d 147, 150 (2nd Cir. 1996); Jersey Shore Broadcasting Corp. v. FCC, 37 F. 3d 1531, 1535 (D.C. Cir. 1994). Since government agencies can generally resolve matters within their domain more quickly and efficiently than courts, it is in the best interests of all parties involved to see these matters resolved within the agency where possible. This is certainly true in the FOIA context, where the agency has access to the records at issue, but the court and the requester do not. See Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973). Moreover, the agency may have already begun processing the appeal and FOIA appeal officers should be able to identify erroneous initial determinations more quickly than a court. Judicial economy dictates that the agency should complete its decisionmaking process before forcing a court to decide the issue.

Finally, and perhaps most importantly, the Department's regulation is unfair to requesters in that it imposes a substantial penalty on those who exercise their statutory right to seek judicial review of the Department's denial of their request. Courts have long held that the state may not place impermissible burdens on the exercise of statutory rights. See, e.g., Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 89 (1988), MHC, Inc. v. Oregon Department of Revenue, 66 F. 3d 1082, 1089 (9th Cir. 1995). The Department's regulations do just that by cutting off access to the administrative appeal process for requesters who choose to exercise their right to file a lawsuit. The regulation forces the requester whose request has not been acted upon within the statutory time limits to choose only one of the remedies which are then available under the statute, since the Department will not process the appeal if the requester proceeds with a lawsuit. This burden is significant because these requesters, like the Department, will incur substantial costs in pursuing litigation, costs which could be avoided in many cases through the Department's appeals process if it were allowed to continue. Because the purpose of FOIA is to promote free access to information, imposing this burden on requesters who elect to exercise their right to judicial review cannot be justified.


Because it runs counter to the language of FOIA and Congress's intent in enacting it, does not promote judicial economy, is likely to increase the Department's litigation costs, and unfairly penalizes those requesters who exercise the right provided to them by statute to seek judicial review of the Department's denial of their request or failure to act on that request, the Department's regulation at 28 C.F.R. § 16.9(a)(3) should be repealed.

Respectfully submitted,

Brian Dimmick
Amanda Frost
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000

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