FOIA Facts: Balancing the Budget, One FOIA Request at a Time

It seems the administration has come up with a way to reduce its record federal deficit without raising taxes or cutting government expenditures. It plans to cut the deficit, one FOIA request at a time.

People for the American Way Foundation made a FOIA request to the Executive Office for the United States Attorneys (EOUSA) for records pertaining to requests by the government to seal proceedings of cases in court concerning the detention of post 9/11 immigrant detainees. The request also sought any pleadings (with detainee names redacted) filed in these cases.

The government initially declined to produce any records in the case. Then, just two days before it was to file its motion for summary judgment asking to court to dismiss the case, it came up with a new tact. The government told the requester it would be more than happy to search for responsive records, with one caveat. Before the government could search for responsive records, the EOUSA asked the requester to pay estimated search fees of $372,799. The requesters have until February 10, 2005 to respond to the request.

If this amount sounds a little outrageous, it’s because it is. The EOUSA claims that the search for these records in 88 of its 93 districts will take over 13,000 hours at $28 per hour. And this estimate doesn’t include the Southern District of Florida which has an estimate of hundreds of hours for its office alone. Furthermore, the Justice Department has said that this search needs to be manual because the government computers aren’t configured to find the data pertinent to the FOIA request.

The government’s position is preposterous. Each of the 93 U.S. Attorney Offices are divided between criminal and civil. The records sought are obviously criminal. Each criminal division has an Assistant U.S. Attorney supervising it, who knows what kind of cases his or her office has prosecuted. As the type of cases sought concern national security and are high priority, someone in each district should know which cases are material to the request and where the pertinent information is located. Thus, this search could be done in about five minutes by the sending of an e-mail to the proper parties. Furthermore, if no one in the districts or EOUSA headquarters is tracking these types of cases, the problem is much bigger than the FOIA issues present in this case.

If the case now proceeds, the government will have to justify what the 13,000 hours of searching will actually involve, and why it is necessary. It should make fascinating reading.

Another interesting aspect of the case is that it is assigned to Judge John Bates. Prior to entering the bench, Judge Bates was a supervising attorney for the Civil Division of the U.S. Attorneys Office for the District of Columbia. This Office handles more FOIA matters than any other U.S. Attorney’s Office. Judge Bates knows FOIA. He should easily be able to determine whether the government’s ridiculous position is from arrogance or incompetence.