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FOIA Appeals & Litigation


   What do you do when, after all of your best efforts and after you've exhausted all of your administrative options, yet the agency refuses to release the information? You can then go to court. You may also contest the type or amount of fees which you were charged. Moreover, you can appeal any other type of adverse determination, including a rejection of a request for failure to describe adequately the documents being requested or a response indicating that no requested records were located.

  Reviewing courts should undertake their analysis of FOIA requests by "recognizing the enduring beliefs underlying freedom of information laws: that an informed public is desirable, that access to information prevents governmental abuse and helps secure freedom, and that, ultimately, government must answer to its citizens."  
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 792 (3rd Cir. 1994).

You can also appeal because the agency failed to conduct an adequate search for the documents that you requested. The filing of an appeal does not affect or delay the release of documents which the agency ruled should be disclosed in response to your initial FOIA request. In other words, a partial "win" at the first administrative level is not put at risk if you decide to appeal. There is no charge for filing an appeal.

Practice Tips:

  1. If the agency rules against you at the administrative level-on either disclosure or fee waiver issues-the agency is bound to adhere to the reasons it provides at that stage; it cannot raise new issues later if litigation is required. "Taken together, these principles lead us to the following conclusion: on judicial review, the agency must stand on whatever reasons for denial it gave in the administrative proceeding." Friends of the Coast Fork v. U.S. Dept. of the Interior, 110 F.3d 53, 55 (9th. Cir 1997). The practical impact of this requires you to understand very early in your request process if you have a reasonable chance to get the requested materials at the administrative level, or if you are merely going through the motions to exhaust your administrative remedies in order to get into court. If you are in the former context; go ahead and make your best argument. Try to work with the agency to best inform it of your needs and the correct application of the law to your request. If you are in the latter realm-for some reason you are sure that you are going to get hosed at the administrative level-it is important not to do anything to help the agency make its best arguments during the administrative phase. In this situation, you want the agency to ignore you, to make unreasonable and unlawful arguments; they will be stuck with them once you are in court. You will win.

  2. An administrative appeal may be undertaken upon either, the denial of an initial FOIA request, or an agency's failure to issue a determination within the statutory 20-day time deadline. 5 U.S.C. §§ 552(a)(6)(A)(i), 552(a)(6)(C).

  3. An appeal should outline all facts which you think are relevant to your request. Reviewing courts, while not limited to the record before the agency (except for fee waivers, for which they are limited to review on the administrative record), do tend to consider what a reasonable agency decisionmaker would do when confronted with the facts before it. In other words, if you fail to mention an important fact at the administrative level, it will work against you when raising it at the litigation stage. This is a frequent problem we encounter which can severely limit one's options in court.

  4. Deadlines for the filing of an appeal are noted in each agency's FOIA regulations located in CFRs. They are often as short as 20 working days, so it is important to act promptly when a denial of your initial request is issued. Although, if you miss your appeal deadline you could always refile your another FOIA request, it would just add to the delay in reaching the ultimate resolution of your information request.

  5. Appeals need not include reference to statutory, regulatory, or case law, but it helps. Even if you are not comfortable with legal research, simply citing the agency's rules which have been violated can make the appeal much more effective.

  6. An agency is required to make a "determination" on the merits of a FOIA appeal within 20 working days of receipt. 5 U.S.C. § 552(a)(6)(A)(ii). The agency must "immediately notify the person making such request of the provisions for judicial review of that determination." Id.

    1. An agency may unilaterally extend the response deadline by up to 10 working days in "unusual circumstances," but only upon giving written notice to the requester. 5 U.S.C. § 552(a)(6)(B)(i). This right may not be exercised if the agency has already exceeded its 10 day response deadline for the initial request. Id.

    2. FOIA requires any denial of a request to list the "names and titles or positions of each person responsible for the denial." 5 U.S.C.§ 552(a)(6)(C).

  7. Avoid impassioned prose ("you are killing all of the animals in the ocean, I must know why!"), it may make you feel better, but it will not convince the reviewer that you are right and may cloud the issues.

  8. Remember that you are not only trying to convince the agency to release the requested materials, you are also creating a record for a judge to review should legal action be required. If you think of additional issues or arguments which have not been included in either the initial request or the appeal, draft a letter (not a phone call-you want a paper trail) which sets them out. Make a record for review, make a record for review, make a record for review.

  "The Freedom of Information Act: 'a federal regulation obliging government agencies to release all information they had to anyone who made application for it, except information they had that they did not want to release.'"  
Joseph Heller, "Closing Time" (1994).

FOIA Litigation

   What do you do when after all of your best efforts, you have exhausted your administrative options yet the agency has proven Mr. Heller to be correct? You must seek judicial review. Litigating FOIA cases requires considerable knowledge of the Federal Court Rules Of Civil Procedure (FRCP) and other specific Federal Court rules, as well as strong legal research and writing skills. As one appellate court has frankly acknowledged: "Freedom of Information Act cases are peculiarly difficult." Miscavige v. IRS, 2 F.3d 366, 367 (11th Cir. 1993); see also Summers v. Department of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (noting "peculiar nature of the FOIA"). Moreover, in order to actually file a case or appear in court on behalf of any party (other than as a pro se (for yourself) litigant), federal rules generally require admission by the Federal Court as an attorney authorized to practice in the specific federal district where the FOIA case is filed. For these reasons,

  "The statute is a commitment to 'the principle that a democracy cannot function unless the people are permitted to know what their government is up to." Id . (internal quotations omitted).  
Favish v. OIC,
(9th. Cir., July 12, 2000)

FOIAdvocates suggests that anyone interested in filing a FOIA lawsuit should carefully consider the benefits of obtaining legal counsel from an attorney who is familiar with both FOIA litigation and federal civil practice. If a lawsuit is filed on your behalf and you substantially prevail, you may be awarded reasonable attorney fees and litigation costs reasonably incurred.

   This guide to FOIA litigation is designed to provide a very cursory over-view of litigation related issues pertaining to FOIA in order to assist you to best develop your case to ensure that if you are required to seek judicial review, you will have a winning case. However, this information should not be viewed as a substitute for obtaining legal counsel with an attorney qualified to evaluate the specific merits, issues or tactical considerations presented by your specific case.

   FOIAdvocates provides free initial consultations on all FOIA and public record matters, and our staff attorneys have considerable experience litigating FOIA cases and appeals. We are available to provide you legal counsel and representation in all manner of FOIA litigation before both trial and appellate courts.

   What follows is a very brief overview of what you should expect if you retain an attorney to litigate a FOIA claim - and some of the pitfalls to avoid. Remember; the issue of whether you will win or lose your FOIA litigation will have been largely determined by the time you have exhausted the administrative phase of your case by the documentation which has been submitted to the agency's administrative record. This is particularly true regarding fee waiver issues because the court's review, while de novo, is limited to the administrative record. 5 U.S.C. § 552(a)(4)(vii).

  1. Remember the golden rule of FOIA: "An agency seeking to withhold information under an exemption to FOIA has the burden of proving that the information falls under the claimed exemption." GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109, 1113 (9th Cir. 1994); see also Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.1987). This favorable burden of proof provides rarefied air indeed for a plaintiff's attorney to breathe.

  2. Federal courts have jurisdiction to "enjoin the agency from withholding agency records" 5 U.S.C. § 552(a)(4)(B). But before going to court, a FOIA requester must "exhaust" their administrative remedies, that is, they must use every option available at the agency level if they expect the court to review their case. 5 U.S.C. § 552(a)(6)(B). This can occur when the agency takes too long to respond to a request or appeal, or if the agency denies an appeal. If you file your suit before one of these things occurs, your case will be dismissed.

  3. The action may be filed in the federal district court in the district where the complainant resides, has a principal place of business, in which the agency records are located, or in the District of Columbia. 5 U.S.C. § 552(a)(4)(B).

  4. The court may review the case de novo, that is, the court may create its own record of events without depending on the agency's administrative record. 5 U.S.C. § 552(a)(4)(B). Thus, courts reviewing FOIA cases may grant somewhat less deference to an agency interpretation of the case than would normally be the case when a court reviews and administrative action.

  5. In almost all circumstances, a FOIA complaint should also plead an APA claim as a violation of the terms of FOIA can also usually be framed as either "arbitrary and capricious" or an "abuse of discretion."

  6. The complaint, in addition to demanding the release of the records at issue, and/or the granting of a fee waiver, could further seek:

    1. A request for an order enjoining the agency from relying on an invalid regulation or practice in all future FOIA undertakings. Cf. McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983).

    2. An order declaring the agency's actions to be violative of FOIA.

    3. An award of attorney's fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). Attorney fees may be awarded when the plaintiff has "substantially prevailed." Id.

    4. If the actions of the agency were so flagrant to be arbitrary and capricious, ask that the court make a specific finding of that fact and refer the matter to the Merit System Protection Board for investigation. 5 U.S.C. § 552(a)(4)(F).

  7. Consider the active use of requests for admission (RFA's) as a discovery tool. Outline the elements of your claim in your RFA's. If not admitted or denied by the government within 30 days from service of the RFA's, they will be deemed admitted pursuant to the Federal Rules of Civil Procedure. FRCP 36(a).

  8. Generally, FOIA cases are well suited for resolution by summary judgment pursuant to Federal Rule of Civil Procedure 56. There are usually few material facts in dispute and the conflict is often based on divergent interpretations of the relevant law. Thus FOIA cases may often be litigated relatively cheaply (in comparison to other types of federal litigation).
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