FOIA Lawsuits Are Taking Longer To Resolve

There has been a dramatic rise in pending FOIA cases. At the end of FY 2016, the number of pending FOIA lawsuits totaled 702, but by the end of FY 2019, that number more than doubled to 1,448. See Figure 1. In addition, cases that have been pending for two or more years are nearly two-and-a-half times greater, rising from 138 at the end of FY 2016 to 330 at the end of FY 2019.

Figure 1. Pending FOIA Lawsuits Climb As Cases Take Longer to Resolve
(Click for larger image)

As Figure 1 makes clear, the pending caseload has continued to balloon because closures have lagged far behind new filings. In addition, although the number of FOIA lawsuits has increased since President Trump assumed office, new filings plateaued this past year. Levels in FY 2019 were about the same as in FY 2018: ten fewer suits were filed (849 vs 859) in FY 2019, while the number of agencies sued increased slightly by twelve (1144 vs 1132) over levels in FY 2018. Yet the total pending caseload has continued to rise. See Table 1.

Why are court cases taking longer to resolve? Increasingly FOIA suits are being filed because agencies aren’t responding to FOIA requests in the first place, even though requesters are waiting longer before heading to court. See FOIA Project’s December 2019 report. It is unclear from the data whether agencies continue to drag their feet once the case is filed or whether judges are taking longer to rule on litigants’ motions, thus prolonging litigation. But whatever the cause, the end result is clear. Gaining access to government records has often become a frustratingly lengthy battle, and the problem seems to be getting worse rather than better.

FY 2019 FOIA Lawsuits App

Accompanying this report, FOIAproject.org has just updated the period covered by the project’s FOIA Lawsuits App. This free user tool allows the public to drill into these numbers. Users can examine overall figures, or drill in by government department, by agencies within departments, and by independent agencies.
Available are trends not only on new suits filed and cases closed, but the backlog of FOIA cases currently pending before federal district courts and how long suits have been waiting for resolution.

Who Was Sued in FY 2019?

The Justice Department and the Department of Homeland Security continue to be the subject of the most FOIA lawsuits. The State Department experienced the largest jump in FOIA lawsuits last year – up from 71 during FY 2018 to 84 in FY 2019. The Environmental Protection Agency experienced the largest decline – down from 59 lawsuits in FY 2018 to 32 during this past year. Agencies that were the subject of ten or more FOIA lawsuits in either of the past two years are shown in Table 2.

* Federal agencies with at least 10 FOIA suits filed against them in FY 2018 or FY 2019.