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FOIA Facts: The Slow Road: FOIA Litigation

By Scott A. Hodes, Published on September 17, 2006

One of the reasons that FOIA litigation is disfavored by people is the time it takes for the lawsuit to actually result in a decision. Even before a lawsuit has been filed, the requester has usually spent some time waiting for the agency to make a decision on his or her initial request and then more time on an administrative appeal. Then, after a lawsuit is filed, various procedural things occur that can result in years of litigation before a court even reaches a decision on the documents requested in the first place. And even if the court orders the documents released, agencies commonly appeal the release order to an appeals court, resulting in an even longer wait. A number of recent active lawsuits serve as a good example of this.

In the beginning of September, Judge Paul L. Friedman of the District Court for the District of Columbia issued two opinions and orders in FOIA cases before him. The first case, National Association of Criminal Defense Lawyers v. Department of Justice, was filed in August of 2004. The opinion and order narrowed the documents at issue in the case, but ordered more activities to occur before a final decision can be reached. The second case, Long v. Department of Justice, was filed in early 2000. Over six years later, this decision orders the release of some of the previously withheld documents.

These cases are good examples of the time it takes to get a final decision on a FOIA lawsuit. There is really no one reason that can be pinpointed as why FOIA litigation takes years to reach a resolution. However, the system is set up in such a way that there is absolutely no reason for the government to move any quicker in pushing the litigation to a final decision. That is because the longer the government can keep the litigation pending, the longer it will not even have the possibility of releasing the requested material.

Cases in the District Court for the District of Columbia may take longer than other federal courts to resolve FOIA cases. This is because more FOIA cases are filed in the D.C. District Court due to it having universal jurisdiction under the FOIA itself, as well as many of the agencies and records sought being located in D.C. Additionally, FOIA cases usually involve a large number of complex indices and documents. These factors can result in overworked judges having to take some time to review the record before issuing opinions in the FOIA matters them.

The best way to expedite FOIA litigation may be to create a separate court only dealing in FOIA matters that could deal with all FOIA cases taking them out of the various District Courts. However, with enormous deficits looming for the foreseeable future, it is unlikely that any movement to quicken the pace of FOIA litigation will be seen anytime soon.

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