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Citizens For Responsibility and Ethics In Washington v. Federal Election Commission

December 30, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to obtain certain records requested from Defendant, the Federal Election Commission ("FEC"). Presently before the Court is the FEC's [4] Motion to Dismiss, or in the Alternative, for Summary Judgment, seeking to dismiss CREW's complaint on two grounds: (1) Plaintiff's claim is moot; and (2) for Plaintiff's purported failure to exhaust its administrative remedies. CREW filed an [5] Opposition, and the FEC filed a [7] Reply. Having analyzed the pleadings, the record before the Court, and the relevant authorities, Defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED, and Defendant's motion for summary judgment is GRANTED.


CREW is a non-profit corporation which describes its mission as "protecting the right of citizens to be informed about the activities of government officials and [] ensuring the integrity of government officials." Compl. ¶ 4. The FEC is an independent agency of the United States Federal Government charged with administering the Federal Election Campaign Act of 1971.

Def.'s Stmt. ¶ 1.*fn1 On March 7, 2011, CREW submitted a FOIA request to the FEC seeking, in relevant part, the following records:

* All correspondence related to any and all FEC business between Commissioners Matthew S. Peterson, Caroline C. Hunter, or Donald F. McGhan II and any individual or entity outside of the FEC from the date each commissioner took office to the present;

* All calendars, agendas, or other recordations of the schedules of Commissioners Peterson, Hunter, and McGhan;

* All written ex parte communications delivered to an FEC ethics officer or Designated Agency Official by Commissioners Peterson, Hunter, and McGhan or by someone acting on their behalf; and

* All statements setting forth the substance and circumstances of any oral ex parte communication prepared by any of these commissioners or by someone acting on their behalf and delivered to an ethics official.

Pl.'s Ex. 1 at 1. The request indicated "CREW welcomes the opportunity to discuss with you whether and to what extent this request can be narrowed or modified to better enable the FEC to process it within the FOIA's deadlines." Id. at 2.

The day after it received the request, the FEC emailed CREW, acknowledging receipt of the request, and granting CREW's application for a fee waiver. Def.'s Stmt. ¶ 4. Though certain immaterial details of the parties' communications remain in dispute, the parties do not dispute that between March 9 and March 18, 2011, the parties agreed that (1) CREW would allow the FEC to exclude certain documents from its initial search for responsive documents; and (2) the FEC would produce documents on a rolling basis. See Resp. Stmt. ¶¶ 4-8. On March 29, 2011, CREW sent the FEC a letter clarifying the scope of CREW's request. Rappaport Decl. ¶ 8. The parties continued to correspond regarding the scope of the request through at least April 4, 2011. See Pl.'s Ex. C at 2. On May 4, 2011, the FEC informed CREW that it had just received the first set of potentially responsive documents from its searches, was still performing searches, and was reviewing thousands of potentially relevant documents. Def.'s Stmt. ¶ 10; Rappaport Decl. ¶ 10. CREW contends the FEC represented it thought it would be able to produce the first set of responsive documents within two weeks. Resp. Stmt. ¶ 10.

CREW filed its Complaint on May 23, 2011. Def.'s Stmt. ¶ 11. The FEC produced its first batch of responsive documents on June 15, 2011. Id. at ¶ 12; Pl.'s Ex. B (06/15/11 Ltr K. Higginbothom to A. Rappaport). The initial production was accompanied by a letter informing CREW that

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 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.

Pl.'s Ex. B at 2. The FEC's second production on June 21, 2011 contained a similar disclaimer, indicating the FEC expected to produce additional documents and that the production was not an appealable agency decision. Pl.'s Ex. C at 2. The FEC completed its production of responsive documents on June 23, 2011, and enclosed a letter outlining redactions and documents withheld under various FOIA exemptions. Pl.'s Ex. D at 2-3. The letter further instructed CREW that it could appeal any adverse determination, that any appeal must be in writing, and that it must comply with the ...

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