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FOIA Lawsuits Reach Record High

by David Burnham on January 6th, 2016
Figure 1. Rise in FOIA Lawsuits
during the Obama Administration

The annual number of Freedom of Information Act (FOIA) cases filed in federal court has reached an all time high of 498 in FY 2015, according a 15-year analysis by the Transactional Records Access Clearinghouse (TRAC).

For a more recent time period, the data show that the 919 FOIA cases filed during the last two years (FY 2014 and 2015) represent a 54 percent increase over the 595 such matters filed during FY 2009 and 2010, the first two years of the Obama Administration (see Figure 1 and Table 1).

Table 1. FOIA Lawsuits Filed, FY 2001 – 2015
Administration Fiscal Year FOIA Lawsuits Filed
Bush 2001 299
Bush 2002 263
Bush 2003 280
Bush 2004 302
Bush 2005 387
Bush 2006 297
Bush 2007 304
Bush 2008 258
Obama 2009 300
Obama 2010 295
Obama 2011 387
Obama 2012 338
Obama 2013 370
Obama 2014 421
Obama 2015 498
For further information see the FOIA Lawsuits data tool.
Figure 2. Rise in FOIA Lawsuits
since the Bush Administration

The 919 FOIA cases filed in the period FY 2014 – 2015 also far outnumber those filed during the last two years of the previous Bush administration. There were only 562 such matters filed during FY 2007 – 2008, yielding a 64 percent increase for the most recent period (see Figure 2).

These and many other insights about the troubled course of this ambitious but flawed law are currently available in the recent posting to the FOIA Project, the unique five-year data-gathering and analysis effort by TRAC, a research organization at Syracuse University. The new data almost certainly will not be the subject for applause during National Sunshine Week, this year scheduled to begin on March 13.

The administration’s record has been a contentious matter ever since President Obama’s first days in office, when both he and Attorney General Eric Holder made sweeping claims about the ambitious FOIA policies they would follow in the years ahead. In a short memorandum to the heads of all Executive Branch departments and agencies, the president said the Freedom of Information Act “should be administered with a clear presumption: in the face of doubt, openness prevails.”

The case-by-case information that serves as the foundation of the FOIA Project is now collected on a daily basis by TRAC and currently includes very extensive details drawn from more than 9,000 cases (29,000 documents) about every filing since October of 1996.

When sufficient time has passed, the information available about each case in both the widely scattered court records and on often includes the detailed court docket, the complete filing from the original requester or lawyer and the judge’s resulting opinion.

But with the availability of both this vast cache of specific information and the sophisticated search mechanisms accessible on the free website, users — including litigators, reporters, public interest groups, Congressional staff members and government agencies themselves — can quickly find answers to an almost unlimited number of different questions.

As suggested above, the questions may concern the changing national patterns in the number of occasions that individuals and organizations around the country have asked the courts to order the production of specific government records they felt had been improperly denied them. But in addition to this national overview, queries can focus on specific departments and agencies, locate the alleged FOIA violations made in each of the federal judicial districts, or explore many other variables.

According to the information in the project’s recently updated FOIA Lawsuits data tool, for example, there have been 52 district court FOIA lawsuits against the National Security Agency completed since FY 2001. Of these, 22 (42%) took more than 24 months. For that same period, 68 FOIA suits against the Food and Drug Administration have concluded, but only 14 (24%) took more than 24 months to complete.

Here is a second possible subject that could be used for the informed exploration of many other variables: court records show that the judges sitting in California North (San Francisco) were asked to deal with 307 FOIA cases since FY 1997. For their colleagues in California Central (Los Angeles) the FOIA burden was considerably smaller — only 214 cases. Is the government more secretive in the San Francisco area, or are the individuals and organizations in Los Angeles more aggressive when it comes to trying to enforce the FOIA?

The explanations for these agency and district variations often are not clear. But with it is possible to obtain very complete case-by-case and district-by-district information about every single filing: the individual or organization launching each case, the specific records being sought, the identity of the alleged withholder and the name of the presiding judge.

Through the careful examination of these and many other factors it might well be possible to determine the reasons for the different FOIA practices in these two and in many other districts.

As of the end of FY 2015, during the last 15 years the Justice Department was the most frequent FOIA target — 1,239 of all 4,999 filings. But there are many components in the Justice Department, and using that question may also be explored.

The FBI, for example, with 326 filings was at the top of Justice Department agencies with specific enforcement responsibilities. Next came the Executive Office for U.S. Attorneys (154), the Bureau of Prisons (112), the Drug Enforcement Administration (85), the Bureau of Alcohol, Tobacco, Firearms and Explosives (54) and the U.S Marshals Service (35).

Among other department components targeted with a relatively large number of FOIA lawsuits was the Office of the Attorney General (66), the Office of Information Policy (60) and the Office of the Inspector General (13).

One standout was the Executive Office for Immigration Review (EOIR). While this agency annually receives more FOIA requests than any other DOJ component (FY 2014 receipts, for example, were greater than the sum of FOIA requests received by the FBI plus the Bureau of Prisons combined), during this fifteen year period only 12 lawsuits were brought against the EOIR.

Once again, in addition to these counts, further clarification may be possible through the careful examination of the case specific information in the initial complaints and judicial rulings.

Because of possible changes in public attitudes about the public’s right to obtain government records, its willingness to challenge government’s failure to provide transparency, as well as changes in the Freedom of Information law and case law, the increase in federal FOIA court filings does not necessarily mean that the current administration is more or less secretive than those of the past. But the rising counts well may indicate that this administration has not lived up to the ambitious open government promises made when President Obama first came to the White House.

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