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Ninth Circuit:

Tardy FOIA Responses Don’t Require Dismissal of Suit

Opinion Says Administrative Exhaustion, Normally Required, Does Not Justify Dismissal of Suit Seeking Compliance With Requests When Responses Are Provided After Complaint Is Filed in District Court

By Kimber Cooley, associate editor

JONATHAN CORBETT

attorney

The Ninth U.S. Circuit Court of Appeals held yesterday that when a governmental agency misses the statutory deadline for responding to a request for information by a member of the public—and only responds after a complaint is filed in the District Court—the requester may continue to litigate the matter before a judge and is not limited to an administrative appeals process.

Appealing the dismissal of his complaint was Jonathan Corbett, a Hollywood-area attorney who specializes in civil litigation against the Transportation Security Administration (“TSA”). On June 14, 2021, Corbett filed a request under the Freedom of Information Act (“FOIA”), codified at 5 U.S.C. §552, seeking incident reports and video footage of a pat-down search of “one Kelly Joyner” by TSA employees at a Wisconsin airport.

On March 6, 2022, Corbett submitted a second FOIA request seeking video coverage and reports regarding an incident at Miami International Airport during which a TSA officer allegedly headbutted an unnamed client a few weeks earlier.

TSA responded to each request by informing Corbett that he must complete a certificate of identity form required by the Privacy Act to establish that he had permission to request the information about his clients. Believing the form to be inapplicable to a FOIA request, Corbett did not comply.

Pursuant to §552(a)(6)(C)(i), an agency has 20 days to respond to a request or the requester is deemed to have exhausted his administrative remedies and may file suit in federal court. After this time frame passed, Corbett filed a complaint in District Court on Sept. 25, 2022, seeking the requested evidence.

Agency Responses

On Nov. 16, 2022, TSA issued final responses to Corbett’s FOIA requests and explained that the agency had searched for the responsive items but could not acknowledge the existence of any records without his client’s consent on the certificate of identity forms. The responses noted an exception for matters of public interest but said that Corbett had not established that the incidents met such a threshold.

TSA informed Corbett that he could appeal to the agency’s Appellate Division within 90 days, which he declined to do. TSA moved for summary judgment on April 28, 2023.

Chief District Court Judge Dolly M. Gee of the Central District of California construed the motion as a petition for dismissal and dismissed Corbett’s claims. Gee acknowledged a dearth of case law on the issue of whether FOIA’s exhaustion requirement bars the civil action where the responses were provided after the filing of a complaint but found that the policy behind the rule favors the process.

Circuit Judge Morgan Christen authored the opinion reversing the dismissal. She wrote:

“The question of first impression presented by this appeal is what happens when an agency misses its statutory deadline and responds to a FOIA request only after the requester files suit. If the plaintiff remains dissatisfied with the agency’s response, should she still be required to pursue an administrative appeal rather than litigating the dispute in federal court? The district court answered in the affirmative. We reach the opposite conclusion….”

Senior Circuit Judge William A. Fletcher and Circuit Judge Lawrence VanDyke joined in the opinion.

Administrative Exhaustion

Christen noted that courts “generally require FOIA requesters to exhaust their administrative remedies before filing suit” unless the exhaustion requirement is deemed constructively satisfied by the failure to respond within the statutory time frame.

Turning to the record before the court, she said:

“[H]ad TSA provided its final responses before Corbett sued—even if it had responded more than twenty days after receiving Corbett’s requests—the final responses would have been ‘sufficient for purposes of requiring an administrative appeal.’….But TSA did not do so. The question presented by this appeal is whether the final responses TSA provided to Corbett, more than twenty days after it received his requests and after he filed suit, triggered an obligation for him to complete the administrative appeal process.”

Silent Text

The jurist explained that “[t]he text of FOIA does not answer this question” but found clues in the statutory language that support the court’s decision. She noted that §552(a)(6)(C)(i) provides that “the court may retain jurisdiction and allow the agency additional time to complete its review of the records” if the government can show exceptional circumstances justifying the delay in responding.

Based on this language, Christen reasoned:

“We agree that § 552(a)(6)(C)(i) contemplates further exchanges between agencies and FOIA requesters after a court assumes jurisdiction over a contested FOIA request, and Congress plainly provided that a district court may retain jurisdiction and permit an agency additional time to respond if the agency shows exceptional circumstances. Nothing in the statute, nor in our precedent, suggests that FOIA permits agencies to miss the initial twenty-day deadline and then require requesters to administratively exhaust by providing tardy responses after requesters have filed suit to enforce the rights that Congress guaranteed in FOIA.”

Other Circuits

She remarked that “[o]nly a few courts have addressed the question presented by this appeal” but said that the present decision is in line with precedent in the Fourth and D.C. Circuits. The judge concluded:

“We agree with the position taken by these courts and hold that once a FOIA suit is properly initiated based on constructive exhaustion, an agency’s post-lawsuit response does not require dismissal for failure to exhaust….[E]xhaustion is a prudential consideration rather than a jurisdictional one…and FOIA permits district courts limited discretion to require exhaustion only if an agency shows that exceptional circumstances warrant it….Rather than dismissing the complaint, a district court should stay its proceedings where it finds that an agency has shown that exceptional circumstances warrant requiring exhaustion.”

Christen added:

“In reaching this decision, we recognize that some district courts within our circuit have reached the opposite result….Our decision is dictated by the text and purpose of FOIA….Requiring administrative exhaustion after a post-lawsuit agency response…could…provide an incentive for agencies to forgo responding unless and until requesters file suit. By contrast, narrowing an agency’s ability to invoke exhaustion in the circumstances presented here will incentivize agencies to respond within the timeframe Congress envisioned.”

The case is Corbett v. Transportation Security Administration, 23-55713.