Here is my holiday gift to federal government FOIA offices. No matter how big your office is, put together a rapid response team to deal with FOIA requests that are likely to lead to litigation in the short run.
If you are confused, I’ll back up and explain. First, most FOIA requests do not lead to litigation. Those by individual’s acting on their own rarely end up in litigation and do so only after going through the administrative process. However, certain requests from certain requesters almost always end up in litigation and end up in the court system before any action is taken on their request from the agency.
These organizations are usually non-profits and can range anywhere on the political spectrum. Examples are Judicial Watch, Citizens for Responsibility and Ethics in Washington (CREW) and Electronic Frontier Foundation (EFF). These organizations usually file suit once their administrative remedies are constructively exhausted, and they have received no determination on their request (twenty business days from the time the agency receives the request). This allows them to sidestep the administrative process, and go straight to court where a federal judge will oversee the entire FOIA process.
I do not feel that there is anything wrong with this. These groups are well within their rights to sue almost immediately, and government failure to reform FOIA processes forces anyone who wants the requested material in a timely manner to file suits well before they have actually been denied responsive material.
I am proposing that the government acknowledge that this occurs, and tackle this problem head-on. Government agencies should pay special attention to these requests. These requests shouldn’t get special treatment over other FOIA requests, but agencies should make sure their best FOIA employees are assigned these matters. They should make sure their respective General Counsel’s Office and any other affected personnel in the agency are aware that the requests have been made. They should open up a line of communication with the requester. Finally, they should do anything else proactively that will assist in the processing of the request when it is ready to be processed.
Why do this? FOIA litigation is expensive for the government-even if it doesn’t have to pay a check to the attorney representing it. FOIA requests in litigation take, rightly or wrongly, precedence in the workings of a FOIA office because a federal court is overseeing the processing of the request. Every request in litigation will require many more man hours than a request not in litigation. Thus, if any agency knows that a request will very likely go to litigation, it is in that agency’s interest to make sure every thing done in response to that request is done properly, the files are in order and the employee who is assigned the request is articulate and able to discuss the matter with the attorneys who will ultimately be defending the government action. If executed properly, my proposal allows other requests to be processed without the fear of a litigated request holding them up for months or years (I have that problem at some agencies and all it does is to invite additional litigation and delays.)
As a former government FOIA attorney, I am not aware that this is a step readily advised by government offices responsible for FOIA measures or performing FOIA training. I’m not sure why, but I would hope it, and other organizational matters that are non-FOIA specific, are incorporated in future FOIA Officer training.