FOIA Facts - My Proposal: FOIA Litigation Reporting RequirementsBy Scott A. Hodes, Published on May 7, 2008
Agencies often take very different actions in responding to similar FOIA requests. A major reason for this is that there is really not one central agency monitoring what agencies do in regard to individual FOIA actions. Yes, the Department of Justice (DOJ) makes FOIA policy, but no one individual - or even one office within DOJ monitors what agencies are really doing in their FOIA Operations as to individual requests.
For instance, a request that ends up in litigation may end in one of four Department of Justice Offices. It could be defended by an attorney in DOJ’s Federal Programs Office, the Office of Information and Privacy (OIP) , a United States Attorney’s Office or if it involves the IRS, the DOJ’s Tax Division. In fact, if brought outside the District of Columbia, the lawsuit could end up being defended by any attorney handling civil matters in the U.S. Attorney’s Office for the district the lawsuit is brought in. Further, a lawsuit brought against an agency that has independent litigating authority, such as the Securities and Exchange Commission won’t usually be defended by any DOJ attorney.
The reason this is important is that many requests that end up in litigation are there because the agency did not handle it properly at the administrative level. In litigation, with the agency having to answer to the lawyer defending it, a federal judge and the plaintiff, it is likely that the agency will have to change the way they handled the request earlier, in a way that is much more palatable to the requester. Thus, in these cases, only when outside eyes are on an agency, does it change its practices.
I will concede that in many cases that go to litigation, agencies have acted properly. However, in my experience both in and out of government, I have seen that only litigation alters an agency’s practices in a way that forces them to do the right thing. And because the results of these cases are not really monitored so that there is a lasting effect on FOIA practices is a disservice to everyone, agencies and requesters alike.
Thus, I believe there should be a reporting requirement for all FOIA lawsuits that require agencies to inform a central FOIA Office (under present law OIP) the outcome of FOIA lawsuits - including any supplemental actions taken by the agency during the pendency of the litigation. The central FOIA Office could then use the internet to constantly inform the FOIA community of what types of actions they should be taking in similar FOIA requests. This would assist everyone involved and use the technical resources that are currently at the government’s disposal.