FOIA Advisor

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Q&A: may a FOIA appeals officer file a declaration in ensuing litigation?

Q&A (2015-16)Allan BlutsteinComment

Q.  Is it generally accepted in FOIA law for a FOIA Appeals Officer, after deciding a claimant's appeal of a FOIA production, to sign a declaration in support of the government's Motion for Summary Judgment?

A.   Rule 56(c)(4) of the Federal Rule of Civil Procedure provides that an "affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."   The agency employee who has adjudicated a FOIA appeal -- or the initial request -- is not legally precluded from executing an affidavit in subsequent litigation involving the same matter.  Indeed, given his or her personal knowledge of the case, the adjudicating officer and the agency declarant in litigation are frequently one and the same.