Citizens for Responsibility & Ethics v. Federal Election Commission

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.