Justice Delayed Is Justice Denied: Judges Fail To Rule in a Timely Manner on FOIA Cases

The Freedom of Information Act (FOIA) was passed to ensure the public’s right to know what their government was doing. Recognizing that the legal maxim that “justice delayed is justice denied,” provisions were included in the original bill to help ensure that the records requested were promptly released. Response delays still became a perennial problem, so additional provisions were added by Congress to further ensure these timeliness requirements were in fact met.

Unfortunately, to date these statutory mandates appear to have had little effect. Indeed, FOIA is becoming undermined by endless delays. Federal officials increasingly ignore these deadlines, forcing FOIA requesters to take them to court. As a result, the number of FOIA lawsuits have been rising because federal agencies were often not responding at all. Now the FOIA Project has documented that federal judges are increasingly failing to rule in a timely manner when requesters are forced to file suit to enforce FOIA requirements.

All these delays have practical consequences. Sometimes individuals require records to deal with pressing personal matters. Others seek information on immediate public policy issues. Because of these delays, for example, FOIA requesters seeking records about Trump administration policies often will not obtain them until long after President Trump has left office. And unless matters change, the same will be true for FOIA requesters seeking records about the new Biden administration’s policies.

Many of the requests that require filing lawsuits to compel disclosure involve requests by reporters and media organizations, as well as by nonprofit and advocacy organizations. These requesters are seeking access to information needed to ensure transparency and to provide the public with the information required to hold government officials accountable. Here failure to obtain timely access undermines our democratic foundations.

Failure of District Court Judges To Rule in a Timely Manner

The latest case-by-case court records show that even after filing suits, FOIA requesters are facing longer and longer delays before their cases are decided. Indeed, the backlog of pending FOIA court cases is growing much faster than the increase in litigation because judges are failing to rule in a timely manner and allowing cases to drag on for years.

As of the end of FY 2020, the number of FOIA cases pending in the federal courts climbed to 1,683. This is more than three and a half times the number of pending cases ten years ago in FY 2010 when the pending court caseload was just 467. As shown in Figure 1, the sharpest climb began during FY 2017 and has continued.

The backlog does not seem driven merely by case filings. During the last two years, FOIA filings have not increased while the FOIA lawsuit backlog continued to balloon. The number of new lawsuits peaked in FY 2018 when a total of 871 new FOIA suits were filed. In FY 2019 suits were slightly lower with 854 new filings, and this fell to 808 during FY 2020. However, the backlog of undecided court cases continued to grow.

For many years the relationship between the number of new filings each year compared to the number of closed cases had roughly tracked one another. In some years, the number of new filings exceeded closed cases; in other years, the number of new filings was less than the number of closed cases. This year-to-year variation balanced out over time, keeping the total pending FOIA caseload in the courts fairly steady for over a decade starting in FY 2001 when this study’s analysis begins. However, as shown in Figure 2 and detailed in Table 1, cases began to outpace closures starting in FY 2014. This imbalance accelerated starting in FY 2017 after former President Trump assumed office.

What Is the Source of These Court Delays?

FOIA lawsuits make up a very small proportion of the federal court caseload. FOIA cases made up less than 14 out of every 10,000 cases filed in FY 2020, and an average of 17 of every 10,000 cases filed since FY 2015. Thus, it seems unlikely that the increasing number of these lawsuits had a material impact on the court’s overall workload or were the source of the delay.

Indeed, since FY 2015, pending caseloads have not shown the explosion we have seen for FOIA litigation. Until FY 2020, the number of new criminal and civil cases filed have sometimes been higher, and sometimes a bit lower than cases which were closed. Last year, however, was not necessarily indicative of any long term trend. The pandemic disrupted many areas of society and government in ways that made it unique [1]. However, the trends seen for FOIA litigation have been building for years.

It is also true that a majority of FOIA suits are filed in the District of Columbia where they make up a larger share of the court’s workload. However, even in D.C., FOIA filings last year were only around 11.8 percent of the D.C.’s criminal and civil filings. But the delays being seen for FOIA litigation appear to be occurring nationwide and include districts outside D.C.

How Much Longer Are Cases in the FOIA Backlog Waiting?

While the FOIA court backlog grew by 12 percent between FY 2019 and FY 2020, the growth in cases that had been already waiting for lengthy periods of time grew even faster. For example, as shown in Table 2, FOIA cases that had been pending for forty-eight months or more grew by nearly fifty percent (46%).

In general, growth rates were higher for cases that had already been waiting for some time. For cases that had been waiting 12 months or more, the number of pending FOIA lawsuits grew by 29 percent. For those waiting 24 months or more, the number of pending FOIA cases increased to 49 percent. For those waiting even longer, up to 51 months or longer, the number of cases grew at similar rates hovering around 50 percent. Longer waits showed sizable, but still lower, increases.

A total of 83 FOIA cases had been waiting for five or more years and the court had still not decided the case. A dozen FOIA cases had been pending for ten years or more and were still awaiting resolution at the district court level.

FY 2020 FOIA Project’s Lawsuit 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 on new suits filed, cases closed, and the backlog of FOIA cases currently pending before federal district courts and how long suits have been waiting for resolution.

Footnotes

[1] The Northern District of Florida did experience an enormous spike in case in FY 2020. There a consolidated case involving veterans claiming injury from alleged defective 3M earplugs was being heard.