Reporters Committee urges court to clarify standard on expedited FOI Act requests

The Reporters Committee for Freedom of the Press today urged the federal appeals court in Washington, D.C., to clarify the standard for when government agencies must more quickly process Freedom of Information Act requests.

The Reporters Committee, joined by the National Security Archive, the American Civil Liberties Union, the American Society of Newspaper Editors, and the Society of Professional Journalists, filed a friend-of-the-court brief in the U.S. Court of Appeals for the District of Columbia Circuit in the case of Electronic Privacy Information Center v. Department of Justice.

The case arose after an August 22, 2003, Washington Post story by Dan Eggen, which reported that Guy A. Lewis, director of the Executive Office of United States Attorneys in the Department of Justice, sent a letter to all federal prosecutors urging them to lobby against legislation pending in Congress that would limit the use of “sneak and peek” warrants under the USA PATRIOT Act. The article questioned whether the letter was a violation of the Anti-Lobbying Act.

On September 10, the Electronic Privacy Information Center (“EPIC”), a Washington, D.C.-based public interest group, filed a Freedom of Information Act request for the letter and other related records with the Department of Justice. EPIC requested that the department expedite processing of the request because it involved an “urgency to inform the public concerning actual or alleged Federal Government activity,” and because it involved “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” In support of its request, EPIC submitted 31 news articles from 14 states and Washington, D.C.

The department denied EPIC’s request to expedite processing. Without first appealing the denial to the department, EPIC filed suit in U.S. District Court in Washington, D.C.

On Dec. 22, 2003, Judge James Robertson ruled that while EPIC was not required to administratively appeal the denial of expedited processing, it had failed to demonstrate an “urgency to inform” under the government-wide standard for expedited processing or “widespread and exceptional media interest” under the Department of Justice’s standard. Judge Robertson’s ruling focused entirely on the number of articles cited in EPIC’s request.

EPIC appealed the denial of expedited processing, and the Department of Justice cross-appealed on the issue of administrative appeal.

“While media interest may be an indicator of an ‘urgency to inform,’ it is not a prerequisite,” the Reporters Committee argued in the brief. “Such an urgency exists when normal processing would produce government records too late for the public to act on them or would result in the continuance of an ongoing wrong whether or not the media exhibited an interest before the release of information.”

“It is also insufficient to look narrowly at the number of news articles published in order to determine ‘widespread and exceptional media interest,’ because a small number of articles may be merely an indication of a lack of information to report and not of a lack of interest.”

The Reporters Committee also urged the court to affirm the judgement of the lower court that administrative appeal is not required because it would cause further delay of the release of records.

The brief is available at www.rcfp.org/news/documents/20040727-epicvdoj.pdf