Judges have a critical role to play in FOIA, but we should avoid clogging up the courts with FOIA cases where we can. (NARA Identifier 6010581)
Since OGIS opened in 2009, we’ve worked to improve the Freedom of Information Act (FOIA) process by providing mediation services and training to help agency FOIA professionals develop skills to communicate productively with requesters. We frequently see our efforts paying off as the FOIA culture shifts from being contentious and litigious to communicative and collaborative; but, we also know we have more work to do.
In December the FOIA Project, based at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, issued a report showing that the number of FOIA lawsuits filed in Fiscal Year (FY) 2014 rose to 422, a 13-percent increase from FY 2013 when 372 FOIA lawsuits were filed and the highest number since 2001.
When talking about the number of FOIA lawsuits filed in a year, it‘s useful to put it into context of the number of FOIA requests filed each year. For each year between 2010 and 2014, the percentage of FOIA lawsuits filed compared to the number of requests overall held steady: about one half of one percent of FOIA requests ended in court. (Of course, not all lawsuits filed in a particular year are the result of requests filed that same year.)
Historical data are also important for context. The number of FOIA lawsuits filed each year has actually dropped fairly significantly over the last few decades. A 1987 Administrative Conference of the United States (ACUS) Statement on Resolution of Freedom of Information Act Disputes noted that requesters filed about 500 new FOIA cases per year.
The flip side of the statistic regarding the number of lawsuits filed is the number of requests that are processed without a lawsuit. Often the process works—though the lack of a lawsuit does not mean that the process worked perfectly, or even worked at all. The reasons that FOIA requesters do not file lawsuits are as varied as the reasons that requesters do file FOIA lawsuits.
Why are FOIA Suits Filed?
Under FOIA, requesters can file a suit and ask for a judge to rule on whether a federal agency can withhold material under the law. This arrangement gives the judicial branch a critical role in the process: Courts interpret the statute and provide some oversight to the process.
A 2014 ACUS report, Resolving FOIA Disputes Through Targeted ADR Strategies, found “wide variation in the form and substance of FOIA disputes between requesters and agencies, in the motivation, resources, and sophistication of requesters, and in the missions and the level of interest in agency records.” There is no one path that leads to a FOIA suit: some requesters work with agencies for years before they decide to file a lawsuit; others routinely file on the 21st day; still others file lawsuits because they believe – fairly or unfairly – that it is the only way to get an agency to pay attention to a request.
What Can I Do to Avoid Becoming Another Statistic (aka, a lawsuit)?
The number of FOIA lawsuits filed is unlikely to ever fall to zero, but there are common-sense steps that agencies can take that will help make sure lawsuits are more rare.
In 2012, we posted a list of tips for “How to Invite a Lawsuit.” Avoiding these “tips” by clearly explaining exemptions and decisions to withhold material to a requester, providing an estimated date of completion, and communicating with requesters can help avoid lawsuits. We at OGIS also can help resolve disputes by facilitating clear communications between agencies and requesters and paving a potential path forward.
The bottom line is that good customer service and the use of dispute resolution skills may not stop all FOIA lawsuits but will help keep some FOIA disputes out of the courts. Additionally, good customer service and the use of dispute resolution skills make the FOIA process more understandable and less contentious for everyone.
How Can We Help?
To use our mediation services, please contact us at firstname.lastname@example.org. We also provide training for agency FOIA professionals in dispute resolution skills; learn more about our training here: https://ogis.archives.gov/news-and-events/training-opportunities/dispute-resolution-skills-training.htm.