FOIA Advisor

Q&A: ‘Cause you gotta have faith

Q&A (2018)Allan BlutsteinComment

Q. Are you aware of a FOIA case in the Ninth Circuit in which the agency was cited for bad faith? Or a Ninth Circuit case that defines what bad faith is for an agency search?

A. Two case might be of particular interest to you: (1) Lion Raisins, Inc. v. U.S. Dept. of Agriculture, 636 F. Supp. 2d 1081 (E.D. Cal., 2009) (noting agency’s absence of good faith with respect to its search); and (2) Powell v. United States Dept. of Justice, 584 F. Supp. 1508 (N.D. Cal. 1984) (finding that agency’s lack of good faith, among other things, warranted in camera review of disputed records).  There are innumerable FOIA cases originating from the Ninth Circuit in which courts have rejected allegations of agency bad faith.  See, e.g., Kucernak v. Federal Bureau of Investigation, 129 F.3d 126 (9th Cir. 1997); Bothwell v. Brennan, No. 13-cv-05439 (N.D. Cal. 2015).