Public Citizen v. Department Of State

276 F.3d 634 (D.C. Cir. 2002)


D processes FOIA requests in four stages. It mails a letter to the requester acknowledging receipt and assigning an identification number. This letter informs the requester that the 'cut-off date … is the date of the requester's letter' and that 'no documents … originating after the date of [the] letter will be retrieved.' D then determines 'which offices, overseas posts, or other records systems may reasonably be expected to contain the information requested.' D then 'tasks' these various components to search for responsive documents. The speed at which the tasked component completes a search depends largely on available personnel, the nature of the request, and the number of outstanding requests. D has a centralized automated records system containing the 'most comprehensive authoritative compilation of documents,' including documents 'that establish, discuss or define foreign policy,' as well as 'official record copies of incoming and outgoing Department communications.' This Central File has the 'longest queue' for requests of any D component. D then reviews the retrieved documents to determine whether it should withhold any, or portions thereof, pursuant to one of FOIA's nine exemptions. D then copies the documents, redacts classified material, and releases them to the requester. P sent a FOIA request asking for records describing its 'current system for managing word processing files … and electronic mail messages,' as well as 'disposition schedules submitted to the National Archives concerning the transfer or disposal' of these materials. Three months later, the Department released seven documents in full, as well as an eighth with portions redacted pursuant to FOIA's first exemption, the national security exemption, 5 U.S.C. § 552(b)(1). This final document was a thirty-five chapter 'records disposition schedule,' essentially a document index with each entry containing a brief description of a Department record and designating the record as 'permanent' or 'temporary.' The letter accompanying the released documents stated that although D typically declines to retrieve documents produced after the date of the FOIA request, D had waived this 'date-of-request cut-off' policy as a courtesy to P. P filed suit claiming that D promulgated the cut-off policy without the notice and comment and that the cut-off policy was unreasonable both generally and as applied to its request. P then applied for more requests. The district court dismissed P's challenge to the cut-off policy as applied to the first FOIA request because D had not applied it. As to additional requests, as they had not yet been processed the case was not ripe as D may or may not apply its cut off policy. The court then found that rule was procedural and exempt from notice and comment. P appealed.