FOIA Advisor

Q&A: Snap, crackle, and sue

Q&A (2018)Allan BlutsteinComment

I am a consultant who helps retailers who are enrolled in SNAP (aka food stamps). A retailer based in New York received a USDA letter that accused the retailer of food stamp trafficking. I submitted a FOIA on the retailer’s behalf that asked for all documents, photos, etc of the case write up. After five months, USDA responded with documents but many were heavily redacted. So I did an administrative appeal within 90 days.

Last week, after 350 days, USDA denied my administrative appeal by essentially using the sample language as before Exemption 5/7 etc. Its response indicated that I can file for judicial review. I looked at other FOIA websites and they seem to state we can do this ourselves and have provided very helpful templates which I plan to use. But, I have a number of questions that these websites do not address.


Q1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA/FNS and restart the process? 
A. You may submit a duplicate request, of course, but the agency will likely send a duplicate response or simply refer you to its earlier response. If you do not wish to file a lawsuit, you can try to ask the agency to reconsider its appeal response. Note that neither the statute nor the agency’s regulations entitle requesters to seek reconsideration of appeals, but the agency is permitted to respond to such requests as a matter of discretion. Additionally, you might wish to seek assistance from the Office of Government Information Services.

Q2. If I appeal judicially, do I have six years to file with the District Court?
A. Not quite. The applicable statute provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A FOIA claim "accrues" when a party has actually or constructively exhausted all administrative remedies. Thus, your claim accrued—and the six-year clock began to run—twenty business days after USDA received your administrative appeal, not on the date USDA issued its appeal response. See Reep v. DOJ (D.D.C. 2018).

Q3. During that six years, does USDA/FNS have to wait for me to see if we will file a judicial FOIA appeal or is it allowed to continue with working on the case?
A. The agency has discretion to reopen your request even if you do not file a lawsuit, but it is not required to do so.

Q4. If I decide to file a FOIA appeal judicially, this RCFP website suggests I file: (1) a short-form complaint and/or (2) a “Motion for Vaughn Index” (https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/how-file-foia-lawsuit). Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete? A. In my experience, most FOIA plaintiffs do not file motions for a Vaughn Index, as you can see from the FOIA Project’s database of FOIA lawsuits. The government typically prepares a Vaughn Index in connection with its motion for summary judgment.

Q5. Can I file by mail? USDA/FNS HQ is in DC. I'm assuming Wash. DC District Court. Who do I address the envelope to?
A. The U.S. District Court for the District of Columbia has a handbook for pro se litigants that addresses these issues.


Q6. What are the fees to file a FOIA appeal? If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
A. The fee for filing a civil complaint in the U.S. District Court for the District of Columbia is $400. The full fee schedule and payment instructions are posted on the court’s website here.


Q7. If I do a short-form complaint, I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?
A. I again refer you to the court’s pro se handbook for guidance, but I will point out that you at least need to complete a civil cover sheet and multiple summonses. Copies of those forms are available here. You also might wish to refer to copies of recent filings contained in the FOIA Project’s database.


Q8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking #? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response. A. Your complaint will not be dismissed if you exclude the request tracking number, because that information is not a material fact. Many FOIA plaintiffs include the tracking number in their complaints, however, for the sake of completeness or to distinguish multiple requests that are being litigated.