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Dramatic Rise in FOIA Lawsuits Filed by Nonprofit Advocacy Groups

by FOIA Project Staff on July 26th, 2017

The number of FOIA lawsuits filed by nonprofit and advocacy organizations has generally grown over the past two decades, irrespective of which political party was in office — from the George W. Bush administration, through President Obama’s eight years, and continuing during Donald Trump’s first months as president. These findings emerge from a detailed study of court records by the Transactional Records Access Clearinghouse (TRAC), a data research center at Syracuse University.

Nonprofit groups representing all shades of the political spectrum have contributed to this rise, and their activity has increased regardless of changes in various administrations’ FOIA policies.

To give some perspective on these trends, in FY 2001, the first year of the Bush administration, nonprofit/advocacy organizations filed 47 cases challenging federal agencies’ FOIA practices. These cases made up one out of every seven (14.2%) federal FOIA suits filed that year. Ten years later the annual number of suits filed by this sector surpassed 100 individual cases. By June 2015, this sector’s 12-month running total had topped 150, and in April of 2017 nonprofit and advocacy organizations’ FOIA filings topped 200 for the first time.

As shown below in Figure 1, these filings are continuing to climb[1]. This sector now accounts for four out of every ten FOIA lawsuits now being filed — more suits than those filed by any other single class of FOIA filer[2].

requests_changeFigure 1. Federal FOIA Lawsuits filed by Nonprofit and Advocacy Organizations (totals covering one year period ending in month shown)

As the FOIA Project reported in its January and May 2017 reports, reporters and news organizations have also recently brought an increasing number of federal FOIA lawsuits. However, the pattern of their increase differed from that documented for the nonprofit and advocacy sector. Nonprofit and advocacy organizations’ lawsuits increased during both the Bush and Obama administrations. In comparison, the number of media suits changed very little during most of this period. Only in the last few years have news media FOIA lawsuits jumped[3].

The jump in media-filed suits along with the dramatic rise in those filed by nonprofit groups have been key contributors to the overall rise in federal FOIA litigation that has recently occurred[4].

Tracking FOIA Litigants

These latest results emerge from the FOIA Project’s continuing initiative to systematically identify and classify plaintiffs in each federal FOIA lawsuit. Starting with the case-by case records on virtually every FOIA suit now available on FOIAproject.org, the project team is examining and classifying each of the more than ten thousand individual names of plaintiffs for cases filed in federal district court since the beginning of FY 2001.

Results from the first phase of this project, released last December and updated in May, were published in The News Media List — a comprehensive directory to the more than four hundred individual reporters and news media plaintiffs in federal FOIA cases. In the just completed and even more ambitious second phase, the project team has identified a second set of cases and filers covering those suits brought by nonprofits and advocacy organizations. The Nonprofit/Advocacy List is a parallel directory that covers over two thousand individual nonprofit organizations that were plaintiffs in federal FOIA cases filed since the beginning of FY 2001.

This new directory can be accessed via a free interactive tool that not only identifies each nonprofit organization, but also provides direct access to a variety of details about each FOIA case that particular organization has filed. For more recent cases, a useful synopsis is given, along with descriptors of the specific issues involved. Click on a “case detail” link to pull up the court docket, the actual complaint and court opinions (where available), and an up-to-date listing of the events and proceedings that have taken place.

To see who the most active FOIA nonprofit and advocacy filers are, using this free interactive tool you can sort by organization name. Time periods cover the entire Bush and Obama years, along with the early months of the Trump presidency. Our work continues. We want to keep these lists updated and to expand the categories of filers tracked. Please email us if you know of a FOIA case that should be added to these listings. Feel free to also let us know which class of FOIA litigants you would like us to examine next.

Do A Few Advocacy Organizations Explain This Rise?

Even a casual perusal of the plaintiffs in FOIA suits filed week after week reveals that there are a small number of advocacy organizations that appear again and again. Indeed, the widely recognized champion among FOIA filers is Judicial Watch, Inc. The FOIA Project found that this single organization has been responsible for an astounding one out of every five FOIA lawsuits filed by all nonprofit groups since 2001!

It is natural, therefore, to ask: Is the dramatic rise in FOIA litigation by nonprofits simply explained by a small number of organizations that have become increasingly active, or as time goes on are more and more individual advocacy organizations actually pursuing FOIA litigation?

The data compiled by the FOIA Project now allow answering this question for the first time. The FOIA Project found that more organizations are in fact bringing lawsuits, and an increasing proportion of suits are being filed by the most active organizations. Thus, it is the combination of both these trends that have combined to drive the marked increase in total filings shown in Figure 1 above.

More Organizations Bringing Suit. More and more advocacy organizations are now filing FOIA suits. In fact, the number of different nonprofit organizations filing FOIA lawsuits increased over fifty percent between the Bush and the Obama administrations. This trend was not due to there simply being more nonprofit organizations in the country. While the overall number of nonprofits registered with the Internal Revenue Service was somewhat larger in 2016 than in 2001, according to government statistics the number of 501(c) organizations actually peaked in 2010 and since then has subsequently fallen[5].

A Few Organizations Increasingly Active. It is also true that a relatively small number of nonprofit and advocacy organizations account for the majority of all FOIA suits filed by nonprofits. In fact, around a dozen nonprofit organizations accounted for over half of all FOIA suits filed by nonprofit and advocacy groups since 2001.

Further, an increasing proportion of all litigation by nonprofit groups is accounted for by the small number of these very active FOIA filers. For example, advocacy organizations that filed five or more FOIA suits during the eight years of the Bush administration accounted for half of all suits brought by this sector. In contrast, during the Obama years, organizations filing five or more FOIA suits accounted for over two-thirds of all suits filed by advocacy groups.

Table 1 lists those nonprofit organizations that the FOIA Project documented had filed ten or more federal FOIA suits from October 2000 through May 18, 2017. (Some cases had more than one nonprofit organization join in the suit.) As previously mentioned, Judicial Watch, Inc. heads the list with a record 324 FOIA lawsuits. In second place with 117 separate FOIA suits, was the American Civil Liberties Union (ACLU) and its affiliates. Virtually tied for third place were Citizens for Responsibility and Ethics in Washington (CREW) with 77 suits and Public Employees for Environmental Responsibility (PEER) that had filed 76.

Table 1. Nonprofit/Advocacy Organizations
Filing Ten or More Federal FOIA Suits
Since FY 2001
Organization Number of Suits
Judicial Watch, Inc. 324
American Civil Liberties Union 117
Citizens for Responsibility and Ethics in Washington 77
Public Employees for Environmental Responsibility 76
Electronic Privacy Information Center 64
Natural Resources Defense Council 43
Electronic Frontier Foundation 40
Cause of Action Institute 35
Center for Biological Diversity 30
Energy & Environment Legal Institute 27
Competitive Enterprise Institute 26
Sierra Club 24
Free Market Environmental Law Clinic 22
James Madison Project 20
Public Citizen 20
WildEarth Guardians 17
Freedom Watch 15
Citizens United 13
Forest Guardians 13
People for the Ethical Treatment of Animals, Inc. 12
Cornucopia Institute 11
Friends of Animals 11
Center for Constitutional Rights 10
Western Watersheds Project 10

The other organizations rounding out the top ten in the nation were the Electronic Privacy Information Center (EPIC) with 64, the Natural Resources Defense Council (NRDC) with 43, the Electronic Frontier Foundation (EFF) with 40, the Cause of Action Institute with 35, the Center for Biological Diversity (CBD) with 30, and the Energy & Environment Legal Institute (E&E Legal) with 27.

Eight out of the top ten groups had been active during both the Bush and Obama administrations. And each of these ten have already filed one or more FOIA suits after President Trump assumed office[6].

Ensuring Citizens Know ‘What Their Government Is Up To’

As the U.S. Supreme Court has noted, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

Many questions remain as to why nonprofit and advocacy groups are increasingly turning to the courts – irrespective of the party in power — to gain access to the government information they are seeking.

Footnotes:

[1] Natural month-to-month variation is averaged out by plotting the moving 12 month total of lawsuits filed.

[2] Other FOIA litigants include reporters and news organizations, individuals searching for records to help them in disputes with federal agencies (including suits filed by federal prisoners), attorneys asking for records to assist their clients, scholars and other individuals requesting documents on federal policies and practices, and private companies seeking records to aid their business interests.

[3] Compare Figure 1 from the FOIA Project January 2017 report depicting the rise in media FOIA suits with Figure 1 above.

[4] The FOIA Project has been documenting this recent rise. See, for example, January 2016 report, December 2016 report and May 2017 report.

[5] According to Internal Revenue Service statistics the number of 501(c) organizations in 2001 was 1,399,558. In 2010 the number had increased to 1,821,824. However, it subsequently fell to a low of 1,442,197 in 2013. During the period 2014 – 2016 the number hovered between 1,548,948 and 1,599,471. See https://www.irs.gov/uac/soi-tax-stats-tax-exempt-organizations-and-nonexempt-charitable-trusts-irs-data-book-table-25.

[6] The Energy & Environment Legal institute was first founded in 2010. Although the Cause of Action doesn’t list its organizational date on its website, the FOIA Project found no record of FOIA litigation filed by this group until President Obama assumed office.

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