Robert Aland v. DOI

Because Aland constructively exhausted one of his requests, we vacate the judgment and remand to the district court for further proceedings. The United States Department of the Interior is a federal agency that encompasses several bureaus, including the United States Fish and Wildlife Service ("FWS"), and offices, including the Office of the Secretary ("OS"). U.S. Dep't of the Interior, Freedom of Information Act (FOIA) Handbook, 383 DM 15 HB at *8-9 (July 15, 2014). Each bureau and many of the offices have their own FOIA officer responsible for processing records in response to FOIA requests, id., though a single officer handles administrative appeals for most of the Department. See 43 C.F.R. § 2.60. All components of the Department follow the same regulations when processing requests. 43 C.F.R. §§ 2.1-2.70.

In February 2022, Aland submitted a request to FWS seeking documents relating to the appointments of Greg Sheehan as Deputy Director and Martha Williams as Director of FWS. On the day he submitted his request, FWS acknowledged it and assigned it a tracking number: DOI-FWS-2022-002397. Within a month, FWS sent Aland its "final response" stating that it had found no records responsive to his request, that it was closing his request, and that he could appeal the decision to the Department's FOIA appeals officer within 90 workdays. FWS also told Aland that OS might possess responsive records and that it was forwarding the request.

OS acknowledged receipt of the forwarded request that same day and provided him with an updated tracking number: DOI-OS-2022-002397—identical, except for the letters "OS" replacing "FWS." Soon after, OS notified Aland that it would take a ten-day extension of time to respond. See 43 C.F.R. § 2.19. Over the next several months, Aland and various OS employees exchanged emails about the request. In October 2022, OS issued an "interim response" letter, producing some documents to Aland. OS informed Aland that it was continuing to search for and review responsive records, and that it would provide him with notice of his appeal rights in its "final response letter." OS made additional productions in November 2022, March 2023, and April 2023. Each letter contained the same "interim response" language stating that OS would inform Aland about his appeal rights later.

In December 2022, between the second and third productions, Aland filed an administrative appeal regarding the responses he had received from both FWS and OS. The appeals officer treated these as separate appeals and denied both because (1) Aland had waited more than 90 workdays after FWS's final response before filing the appeal,

43 C.F.R. § 2.58(a), and (2) he had failed to include copies of all his correspondence with

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OS, id. § 2.59(b)(1). The officer invited Aland to supplement his appeal with the missing correspondence, id. § 2.59(f), but he did not do so.

In July 2023 Aland brought this suit against FWS and the Department, alleging that they had violated FOIA by failing to make adequate searches, involving outside consultants and agencies, and misapplying an exemption. OS then made its last production in September 2023 and notified Aland that its search was complete. But OS still did not inform Aland of his administrative appeal rights. Eventually, the defendants moved for summary judgment, asserting that Aland had failed to exhaust his administrative remedies, and that the Department's searches had not violated FOIA. Without reaching the adequacy of the searches, the district court agreed that Aland had failed to exhaust and so entered summary judgment. The court first determined that FWS's decision to forward the matter to OS created a separate FOIA request with that component of the Department, and thus it analyzed the requests separately. Regarding FWS, the court concluded that Aland's administrative appeal was untimely, so he had failed to exhaust. Aland argued that he had constructively exhausted his remedies with OS, because it had not given him a timely final response as required by FOIA, 5 U.S.C. § 552(a)(6)(C)(i). But the court concluded that regardless of whether OS's October letter was sent too late, Aland was required to actually exhaust his administrative remedies once he received the letter, but he failed to do so when he did not respond to the appeals officer's request for more information. On appeal, Aland first makes a threshold contention that the district court erred when it improperly "bifurcated" his single, initial request for information into two such requests by analyzing FWS and OS's actions separately. He points to no authority, but notes that FOIA requires an agency to "assign an individualized tracking number for each request," 5 U.S.C. § 552(a)(7)(A), and suggests FWS and OS's use of the same number (with different letters) means there was one request. But we agree with the district court that these requests should be analyzed separately. Regardless of the numbering system, the Department's regulations specify that its records are decentralized, and each request must be sent directly to the appropriate agency component. 43 C.F.R. § 2.3. FWS apparently forwarded the request to OS because it concluded that Aland had "clearly misdirected" the request on its face. Id. § 2.4(a). And, as relevant here, the regulations further specify that the time limit to respond to a misdirected request begins no more than ten workdays after it was received by the relevant component, presupposing that the receiving component must give its own response. Id. § 2.17; accord 5 U.S.C. § 552(a)(6)(A) (mandating this regulation). We thus

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proceed to Aland's arguments that he actually and constructively exhausted his administrative remedies with respect to each component of the Department. FOIA requires requesters to exhaust their administrative remedies before going to court. See Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir. 1988). This typically means a person must bring a proper appeal from an agency's determination whether it will comply with his request before he may bring a FOIA suit. See Citizens for Resp. & Ethics in Washington v. Fed. Election Comm'n ("CREW"), 711 F.3d 180, 184 (D.C. Cir. 2013);

43 C.F.R. § 2.64. But FOIA also contains a constructive exhaustion provision. A person

"shall be deemed to have exhausted his administrative remedies" if the agency "fails to comply with the applicable time limit provisions" of the statute. 5 U.S.C. § 552(a)(6)(C)(i). An agency must generally make a determination within 20 workdays of receiving a request, though certain unusual circumstances can enable the agency to obtain a ten workday extension, as OS did here. Id. § 552(a)(6)(A)-(B). We agree with the district court that Aland failed to exhaust his request to FWS. Because he asserts that there is only one FOIA request, Aland argues only that FWS's suggestion that its letter was a "final response" was "misleading" when his OS request continued to be outstanding. But because they were separate requests and Aland did not attempt to bring an appeal from FWS's final determination until long after the relevant deadline had passed, he failed to exhaust this request. Aland next argues that he both actually and constructively exhausted his administrative remedies with respect to the OS request. He maintains that he had no obligation to respond to the request for more information and that he constructively exhausted because OS never made a final determination. We agree that he constructively exhausted his remedies and so do not address actual exhaustion. In determining that Aland had not constructively exhausted, the district court relied on Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990), in which the D.C. Circuit held that even if an agency fails to comply with FOIA's time limits, it can revive the actual exhaustion requirement if it responds to the request before the requester brings suit. See id. at 63-65. The district court here determined that even if OS's October

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2022 letter was untimely under 5 U.S.C. § 552(a)(6)(A), it was still a response that required Aland to actually exhaust his remedies.^†

The district court, however, overlooked that not just any agency response will obligate a requester to exhaust administrative remedies. Instead, to make a

"determination" under § 552(a)(6)(A) that triggers the actual exhaustion requirement, the agency must fulfill three distinct criteria. It must "(i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the 'determination' is adverse."

CREW, 711 F.3d at 188. The D.C. Circuit emphasized that an agency's communication of a mere "future intent to produce some non-exempt documents," for example, is not enough to trigger the actual exhaustion requirement. Id. at 187. In the months after OS received Aland's request, it was frequently communicating with him. But the same was true in CREW, and the D.C. Circuit still found constructive exhaustion even while the agency was actively "gathering and reviewing potentially responsive records." Id. at 183. The October 2022 letter that the district court relied on here did not satisfy CREW's requirements. True, the letter

(i) stated that OS had reviewed records and (ii) described what it was releasing to Aland and why a particular exemption had been applied, but OS did not (iii) inform Aland of his right to appeal. To the contrary, OS explicitly stated in its four interim production letters that it would keep searching for responsive records and inform Aland of his appeal rights in some future communication that never came. (FWS's final determination, by contrast, satisfied all three criteria). Under CREW, then, each letter was nothing more than a statement of "future intent to produce some non-exempt documents," which cannot satisfy § 552(a)(6)(A). Id. at 187. Even OS's final production never informed Aland of his appeal rights. Thus, OS could not have cured its tardiness under Oglesby before suit because it "never issued a formal 'determination' as contemplated by 5 U.S.C. § 552(a)(6)(A)," as interpreted in CREW, sufficient to trigger the actual exhaustion requirement. See also Libarov v. U.S. Immigration and Customs Enforcement, 138 F.4th 1010, 1016 (7th Cir. 2025).

† The parties and district court all rely on the D.C. Circuit's treatment of FOIA exhaustion in Oglesby and CREW, and we follow suit here, without deciding these questions anew ourselves.

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The defendants raise two remaining arguments. First, they suggest that because FWS timely complied with all the requirements of CREW, OS was not separately obligated to respond, and constructive exhaustion was precluded. But as we have explained, these were separate requests. By giving an agency component that receives a forwarded, misdirected request up to ten additional workdays to process it, FOIA and the Department's regulations both presuppose that the recipient component will issue its own response. 5 U.S.C. § 552(a)(6)(A); 43 C.F.R. § 2.17. FWS's transfer may have given OS more time to provide the determination required by § 552(a)(6)(A), but it did not relieve OS of the obligation. Second, the agencies argue that we can affirm the judgment because they are entitled to summary judgment on the merits. Aland counters that because the agencies did not file a cross-appeal, they may not seek to modify the judgment in their favor. See, e.g., Webber v. Armslist LLC, 70 F.4th 945, 952 (7th Cir. 2023). But even if we assume we could reach the merits without modifying the judgment, we are not inclined to do so. Now that OS has completed its production, the defendants rightly note that any request to compel production is moot, and the only remaining questions relate to the adequacy of the agency's search and the documents it concluded were exempt. See Libarov, 138 F.4th at 1015-18. The government devotes only half of a page of its brief to these fact-intensive disputes, which we leave in the capable hands of the district court.

For the foregoing reasons, we VACATE the judgment with respect to Aland's FOIA request handled by the Office of the Secretary, AFFIRM the balance of the judgment, and REMAND for further proceedings.

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