Advocates of improved transparency and accountability in government won a huge victory last week, thanks to federal judges appointed by Republican presidents. The win came when a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed a lower court and told federal bureaucrats that they must comply with deadlines established by the Freedom of Information Act, the basic tool for shining light in the dark places of government.
The FOIA gives agencies 20 working days to respond to document requests. In practice, however, agency officials routinely flout the deadline, often by acknowledging receipt of a request within 20 days without indicating what documents will be provided when. Such disregard for the rule of law was encouraged in 2011 when the U.S. District Court for the District of Columbia ruled that requesters first had to pursue administrative appeals when agencies violated the 20-day rule, rather than going directly to federal court. That ruling would have added interminable delays and burdensome legal costs and prompted many requesters to abandon their efforts.
Then came Judge Brett Kavanaugh, who wrote the appeals court's decision, joined by Judges David Sentelle and Thomas Griffith: "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 decides 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." In other words, agency officials have to comply with the law on FOIA deadlines. If they fail to do so, requesters can go straight to the courthouse.
The decision resulted from a case originally filed against the Federal Election Commission by Citizens for Responsibility and Ethics in Washington, an advocacy group led by Melanie Sloan, a former aide to Sens. Joe Biden, D-Del., and Charles Schumer, D-N.Y., and to Rep. John Conyers, D-Mich. Sloan's group hailed the decision, saying that "had the FEC's interpretation prevailed, agencies could have met their responsibility to make a determination simply by sending out a letter that acknowledges receiving the request and states the agency will get to it in turn. In those circumstances, FOIA requesters could have been left in limbo for months, or possibly years, with no access to judicial review." Or, as Kavanaugh described it, trapped in an "impermissible Catch-22."
President George H.W. Bush appointed Kavanaugh and Griffith, while Sentelle was appointed by President Reagan. That Republican appointees to the federal bench would see eye-to-eye with an advocacy group with such deep Democratic roots reaffirms that transparency in government has become a transpartisan issue in a town too frequently wracked by bitter partisanship.