FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump

Freedom of Information Act (FOIA) suits filed by nonprofit and advocacy organizations seeking access to federal government records have more than doubled since President Trump assumed office. This rapid explosion in FOIA litigation is shown in Figure 1.

This sudden burst in FOIA activity is a marked departure from the slower rise that had prevailed during much of the previous two presidential administrations. For example, during the first year of the Bush administration, nonprofit organizations filed 47 cases challenging federal agencies’ FOIA practices. Ten years later the annual number of suits filed by this sector surpassed 100 individual cases. By June 2015, nonprofits annual total topped 150. And in January 2016 nonprofit organizations’ annual FOIA filings topped 200 and peaked in April and May of 2016 at 236 before slackening off.

In January 2017 when Trump assumed office nonprofits had filed 209 FOIA lawsuits during the previous twelve-month period. By July 2017 the annual rate of filing surpassed 300 and by November had climbed above 400. As of March 2018, the annual nonprofit filing rate topped 500 for the first time. It then leveled off fluctuating above 500 through July of this year.

During this same period, nonprofit lawsuits made up a larger and larger share of the court’s total FOIA caseload. In FY 2001, nonprofit lawsuits accounted for one out of every seven (14.2%) federal FOIA suits filed. Today, nonprofit filings make up over half (56%) of all FOIA lawsuits filed. See Figure 2.

Identifying Nonprofits Filing FOIA Lawsuits

A total of 626 separate nonprofit organizations have filed FOIA lawsuits during the period January 21, 2001 when President George W. Bush assumed office through July 31, 2018. Accompanying this report is a comprehensive directory listing these nonprofit organizations[1], along with details about each of the lawsuits they have filed. Most of these organizations actively advocate on various causes from government accountability and civil liberties more generally, to specific policy areas such as the environment, immigration, animal rights, consumer rights, national security, health and more.

This updated Nonprofit/Advocacy List is part of the FOIA Project’s continuing initiative that systematically identifies and manually classifies each plaintiff in a federal FOIA lawsuit. Starting with the case-by-case records on virtually every FOIA suit now available on FOIAproject.org, the project team has examined each of the nearly fifteen thousand individual names of FOIA plaintiffs during this period to identify those that are nonprofit groups.

Are Particular Nonprofit Organizations Fueling This Rise?

So what has fueled this rapid explosion? Are a few organizations upping the number of suits they are filing, or are more and more different nonprofit organizations deciding to bring FOIA litigation?

Any one monitoring the FOIA Project’s weekly report on new FOIA lawsuits will observe that some organizations’ names appear again and again. Table 1 provides counts of the number of different nonprofit groups filing suit as well as the average number of suits each filed. During the eight years of the President George W. Bush’s administration, 269 different nonprofit organizations brought FOIA litigation. This rose to 325 different organizations during the two terms of the Obama presidency. Already 191 different nonprofit groups have brought FOIA suits since President Trump assumed office even though he has only been in office slightly more than eighteen months. Clearly, more and more nonprofit organizations are becoming active[2].

* Covers January 21, 2017 – July 31, 2018

Some nonprofits that do file, however, are also increasingly active. As shown in Table 1, on average during the Bush years nonprofits filed an average of 2.3 suits each. This jumped to an average of 3.7 suits each during the Obama years. Already during the Trump presidency nonprofits have filed an average of 3.9 suits each just during the first 18 months! Clearly, both trends are evident. More and more nonprofits are filing suit. At the same time, some organizations are going to court more often.

While organizations that file just a single suit are more numerous, they accounted for a much smaller proportion of FOIA litigation. Indeed, the vast majority (63%) of nonprofits filed only a single suit during this nearly 18-year period. Despite their larger numbers, the single filers only accounted for 15 percent of the FOIA lawsuits filed by nonprofits during this period.

At the other extreme, slightly over one in ten (11%) of nonprofits filed five or more FOIA lawsuits. This much smaller group accounted for two out of every three lawsuits filed by nonprofits. See Figure 3.

Who Are These Frequent Filers?

The project also compiled lists of the nonprofit organizations that were the most frequent filers.

Table 2 lists the organizations that made the overall top ten list covering the entire nearly 18-year period. Judicial Watch, Inc. is in first place with a total of 391 new suits. The American Civil Liberties Union was in second place with 130 suits[3]. In third place was Public Employees for Environmental Responsibility (PEER) with 94 suits followed closely by the Citizens for Responsibility and Ethics in Washington (CREW) with 88. In fifth place was the Electronic Privacy Information Center (EPIC) with 74 FOIA suits.

The other organizations in the overall top ten list included in sixth place, the National Resources Defense Council (NRDC). It was followed in seventh place by the Center for Biological Diversity, and Cause of Action Institute in eighth place. American Oversight and the Electronic Frontier Foundation were tied for the ninth and tenth spot with the same number of suits (43) filed by each.

Next, separate top ten lists were compiled for each presidential administration. See Table 3. There was a great deal of continuity in the makeup of the top ten across these three administrations. Four out of ten of the organizations in the overall top ten list were also in the top ten for each presidential administration. These were Judicial Watch, Inc., the ACLU, PEER, and the NRDC.

During the Bush Administration, eight of the top ten were also in the overall top ten list. Just two organizations – Public Citizen and Forest Guardians – only made the top ten rankings during President George W. Bush’s administration.

During the Obama years, again eight out of the top ten were also on the overall top ten list. Only the Competitive Enterprise Institute and the Energy & Environment Legal Institute only made the top ten during the administration of President Obama.

During this period of rapid explosion in FOIA filings under the Trump Administration, six out of the ten were also on the overall top ten list, although one of these – American Oversight – made the overall top ten only because of its volume of filings just during the Trump’s presidency. The other newcomers to the top ten list during the current administration were the Democracy Forward Foundation, WildEarth Guardians, The Protect Democracy Project, and Property of the People, Inc.

The Role Played by Nonprofits in Ensuring the Public’s Business is Public

This study documents the increasingly important role played by nonprofit organizations in challenging government unlawful withholding through court action. Despite changes in the party that holds the presidency, there is surprising continuity in which organizations remain the most active litigators. Yet as a growing number of nonprofit organizations join the ranks of FOIA filers, some new organizations have emerged as new frequent filers.

Footnotes

[1] To make it convenient to summarize by fiscal year, the full listing begins coverage in October 2000 – the beginning of FY 2001. As a result, it also includes nonprofit organizations that filed between October 1, 2000 and January 20, 2001.

[2] Some of the same groups were active across more than a single presidential administration. Thus, the total number of different organizations that have filed at least one FOIA suit between January 2001 and July 2018 totaled 626.

[3] The count includes those suits filed by any of its chapters and projects, as well as by the American Civil Liberties Foundation and its affiliates. When several ACLU affiliates join in the same suit, to avoid double counting, the count is based on the number of separate suits filed by any of these groups either singly or filing together.