FOIA Advisor

Commentary: "Day 21" Lawsuits

Commentary (2018)Allan BlutsteinComment

When an agency fails to issue a final determination by the statutory deadline (usually 20 business days), the requester may sue the agency on the next business day regardless of the reason for the delay.  Do agency FOIA officials have good reason to gripe when requesters submit complex requests and file suits as soon as they can?  Should the statute be amended? Ryan Mulvey (RM) and Allan Blutstein (AB) weigh in below.  Kevin Schmidt is on paternity leave.  

RM:  This is an interesting topic.  In my own experience, I've rarely filed lawsuits right after passage of the statutory deadline, whether it be 20 or 30 business days.  This is because I can appreciate the complexity of some of my requests, and I understand that many FOIA offices are overwhelmed.  In the end, one of the determinative factors in choosing to litigate is whether the agency is keeping me informed of the work being done.  I want to know whether my request has been looked at, where it is in the processing queue, and whether there is an estimated date of completion. 

The best FOIA officers are those who reach out and invite a requester to be part of the effort to design a search.  Of course, I wouldn't expect all agencies to be open to that practice, but every FOIA office should strive to keep requesters informed of what's being done.  The last thing an agency should do is maintain radio silence or ignore a requester's correspondence about a request or appeal.  In one case, I spent roughly three years sending emails and leaving voicemails with officials at the Department of Labor; I only spoke once with a FOIA analyst, and later received two or three emails months after "successful" OGIS mediation.  My sympathy for an agency quickly ends once it starts to ignore me or, worse yet, gives me a false or misleading impression of what work has been done.

Now, in some cases, I think the honest perspective in the requester community is that litigation will be the only way to get a reasonably-timed response.  There are agencies that really do seem to ignore requests unless a court gets involved.  The State Department and the CIA come to mind.  I'm also reminded of Judicial Watch's case against the Secret Service.  These agencies need to focus on improving their tech infrastructure and procedures for handling requests; I understand there are many inefficiencies that contribute to the backlogs.

As for changing the statute, I don't see how that would improve the situation.  Again, it would be better to modernize so agencies like the IRS aren't duplicating hard drives to manually search for email records.  And steps could be taken to minimize the delay associated with sensitive review and White House equities consultation.  It's probably a fair bet that the requesters most likely to sue are being subjected to these forms of politicized FOIA processing. 

AB:  This apparently was a hotly debated topic last week at the national training conference of the American Society of Access Professionals. But I am not entirely sure why.  Of the 500+ FOIA lawsuits filed every year, I suspect that fewer than 50 are filed immediately after requesters constructively exhaust their administrative remedies or within the first week.  Even if that number is higher, it is a tiny percentage of the number of FOIA requests that are backlogged at any given time.  Thus, agencies are perhaps more fortunate than they realize.

I agree with you that keeping requesters informed is likely to reduce lawsuits generally, but let's face it, certain "day 21" lawsuits are filed because the requester wants to earn a splashy headline, please a valuable donor or client, and/or try to box out other requesters who want the same documents.  No amount of good-faith agency communication with the requester will prevent these type of lawsuits.   

Agency officials who feel aggrieved by such lawsuits can take some small comfort in the fact that plaintiffs will have a more difficult time proving that they are eligible for attorney's fees and costs under the "catalyst" theory.  And if agencies are concerned that non-litigant requesters are being penalized by such lawsuits, nothing prevents an agency from simultaneously releasing the records responsive to a lawsuit to other requesters -- or to the press or to the entire world for that matter.  

With respect to amending the statute, there will always be day-after lawsuits no matter the deadline is.  If Congress could be persuaded to appropriate a few more million dollars annually to OGIS, I would not be opposed to a mandatory mediation period as a condition of filing a lawsuit.  

RM: You make a good point about "day 21" lawsuits that aim for the splashy headline.  I don't think these are unjustifiable if the records at issue are newsworthy and serve the public interest, particularly if the agency that controls them is one that requesters usually need to sue.

I have had at least one agency offer to release records to me concurrent with their release to a litigant.  I know some folks in the requester community might not like this practice, because it deprives them of an opportunity for "exclusive use."  But that gets into a whole other topic, which is also relevant to "Release to One, Release to All."

AB:  Unless we want to add a "good cause" or need-to-know" requirement to the FOIA, which essentially would be a reversion to the APA, agencies will have to bear with requests and lawsuits that are pursued for all sorts of questionable reasons.  Candidly, I have no problem with requesters who are quick to pull the lawsuit trigger in order to fast-track responses from any agency, let alone from agencies whose requests linger in black holes.  If certain requesters can afford the court fees and labor costs, more power to them.  It is the American way of life to be able to pay more in exchange for better or faster service.