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Schmidt v. U.S. Dept. of Defense Office of Inspector Gen., 2022 U.S. Dist. LEXIS 90583, 2022 WL 1572245 (E.D. Va. May 18, 2022)

Following the Department of Defense Office of Inspector General’s (“OIG”) public release in April 2020 of the Joint Enterprise Defense Infrastructure Cloud Procurement report (“JEDI Cloud Report”), the Honorable Joseph E. Schmitz (“Schmitz”), a former Inspector General, submitted several Freedom of Information Act (“FOIA”) requests to the OIG, seeking the case investigative file and similar documents related to allegations of financial conflicts of interest on the part of federal officials involved in the JEDI procurement process. The OIG provided Schmitz with several sets of documents, each containing redactions. Schmitz did not file administrative appeals as to any of the documents sent to him by the OIG or another federal sub-agency. Several months later, Schmitz filed suit against the OIG and the other sub-agency, alleging violations of the FOIA.

The Court granted summary judgment, finding that Schmitz had not exhausted his administrative remedies. In the event of an adverse determination of a FOIA request by a government agency, FOIA requires the agency to notify the requestor of the right “to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). FOIA also provides that agencies must “make a determination with respect to any appeal within twenty days … after the receipt of such appeal.” 5 U.S.C. § 552(a)(6)(A)(ii). Thus, an administrative appeal must occur prior to judicial review of the agency’s FOIA determination. Schmitz did not exhaust his administrative remedies relating to his FOIA requests, as required by the statute.

The Court also disagreed with Schmitz’s three arguments for why the exhaustion doctrine was inapplicable to this case. First, Schmitz argued that administrative exhaustion is a prudential requirement, not a jurisdictional one, that courts should decline to apply when application of the exhaustion requirement would frustrate the purposes of FOIA. However, requiring agency review prior to judicial intervention affords the parties and the courts the benefit of the agency’s experience and expertise, which are particularly appropriate where disputed redactions are concerned. Second, Schmitz argued that administrative exhaustion was not required in this case because exhaustion was futile where an appeal was certain to result in an adverse decision from the OIG. Futility requires a demonstration that an adverse decision is a certainty, which cannot be shown here because OIG personnel worked with Schmitz for months to identify responsive documents. Third, Schmitz argued that the production of additional documents in the course of litigation, as Schmitz alleged occurred here, moots the exhaustion requirement. In this case, the additional documents were produced by another, since dismissed, defendant, a different sub-agency. No additional documents were produced by the OIG. Thus, all three of Schmitz’s arguments failed.

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