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Pub. Citizen v. Dep't of State - 349 U.S. App. D.C. 291, 276 F.3d 634 (2002)


Over time, the United States Court of Appeals for the District of Columbia Circuit in applying the 5 U.S.C.S. § 553 exemption for procedural rules has gradually shifted focus from asking whether a given procedure has a substantial impact on parties to inquiring more broadly whether the agency action encodes a substantive value judgment.


In responding to Freedom of Information Act (FOIA) requests, appellee State Department would generally decline to search for documents produced after the date of the requester’s letter. Challenging this "date-of-request cutoff" policy, appellant Public Citizen, a non-profit, public interest organization, claimed that the Department promulgated it without notice and opportunity to comment as required by the Administrative Procedure Act (APA), and that, in any event, the policy was unreasonable both generally and as applied to Public Citizen's particular request because it would force FOIA requesters to file multiple requests. Before anything significant occurred in the district court, Public Citizen submitted two additional FOIA requests, the first made in the spring, and the second, a few months later. Amending its complaint in the district court, Public Citizen challenged the application of the cut-off policy to the first request and charged that the Department had improperly classified the Archives material. The State Department responded that its cut-off policy was procedural, and thus, covered by the APA’s exemption from notice and comment for “rules of agency organization, procedure, or practice.” The District Court dismissed Public Citizen’s challenge to the cut-off policy, holding that the same was unripe. Moreover, finding the policy a “rule of agency organization or practice” exempt from notice and comment, the district court also granted summary judgment fro the Department on the APA claim. Public Citizen sought appellate review.


  1. Was the State Department’s “date-of-request cutoff” policy for Freedom of Information Act requests covered by APA’s exemption from notice and comment?
  2. Was the public interest organization's challenge against the Department’s policy unripe?


1) Yes. 2) No.


The Court of Appeals for the District of Columbia Circuit held that the “date-of-request cutoff” policy fell within the APA’s exemption for rules of agency organization, procedure or practice. According to the Court, because the Department’s cut-off policy applied to all FOIA requests, making no distinction between requests on the basis of subject matter, it clearly encoded no “substantive value judgment.” The Court clarified that the policy did represent a “judgment” that a date-of-request cut off would promote the efficient processing of FOIA requests, but a judgment about procedural efficiency cannot convert a procedural rule into a substantive one. Anent the second issue, the Court held that the appellant Public Citizen’s challenge against the Department’s policy was ripe for judicial review, as the Department sent the organization a letter expressly saying that it considered the date of the letter to be the “cut-off” date.

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