Antitrust Law Daily Wrap Up, AGENCY NEWS: FTC amends FOIA rules to redelegate appeals authority, provide explicit fee waiver appeal right, (Oct 30, 2013)

By Tobias J. Gillett, J.D., LL.M.

To improve and expedite its process for responding to appeals related to the Freedom of Information Act (FOIA), the FTC has amended its FOIA rules to authorize the General Counsel to redelegate its authority to review FOIA appeals to a Deputy General Counsel, and to provide FOIA requesters with the explicit right to appeal fee waiver and reduction determinations within 30 days of the letter notifying them of the agency’s decision, the FTC announced today.

The FOIA permits agencies and individuals to request agency records and information, subject to certain exemptions and limitations. Under the FTC’s previous rule, appeals from initial denials of requests for information were addressed to the General Counsel. The new rule, which goes into effect today, allows the General Counsel to redelegate any FOIA appeal function to a Deputy General Counsel “because it is primarily a legal review to ensure compliance with existing law and to assure implementation of existing Commission policy.” A decision of a Deputy General Counsel under those circumstances will constitute final agency action.

The FTC notes that FOIA appeals are frequently time-consuming because they require individual analysis of numerous documents. Therefore, redelegation to a Deputy General Counsel would be in the public interest because it would permit the FTC to conduct more expeditious reviews. The General Counsel will have discretion to decide unusual or particularly difficult appeals himself or herself, or to refer the appeal to the Commission.

The FTC also amended its FOIA rules to provide an explicit right to appeal fee waiver and reduction determinations. The rule provides that a requester must make such an appeal within 30 days of the date of the letter notifying the requester of the agency’s decision, a deadline which may be extended “[i]n unusual circumstances.” The FTC notes that it solicited comments regarding this change, but none were submitted.

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