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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.
For further information, please visit and use the FOIAdvocates "Free Consultation" link on our foiadvocates.com web site.
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).
When this story was prepared, here was the front page of PCOL magazine:
This Month's Issue: August 2004
Teresa Heinz Kerry celebrates the Peace Corps Volunteer as one of the best faces America has ever projected in a speech to the Democratic Convention. The National Review disagreed and said that Heinz's celebration of the PCV was "truly offensive." What's your opinion and who can come up with the funniest caption for our Current Events Funny?
Exclusive: Director Vasquez speaks out in an op-ed published exclusively on the web by Peace Corps Online saying the Dayton Daily News' portrayal of Peace Corps "doesn't jibe with facts."
In other news, the NPCA makes the case for improving governance and explains the challenges facing the organization, RPCV Bob Shaconis says Peace Corps has been a "sacred cow", RPCV Shaun McNally picks up support for his Aug 10 primary and has a plan to win in Connecticut, and the movie "Open Water" based on the negligent deaths of two RPCVs in Australia opens August 6. Op-ed's by RPCVs: Cops of the World is not a good goal and Peace Corps must emphasize community development.
Read the stories and leave your comments.