Public Interest Advocacy

Thinking About Sending a FOIA Request? Get Ready for Delay, Frustration and Perhaps, a Fight

Our firm represents a public interest organization that over one year ago sent a Freedom of Information Act (FOIA) request to a federal agency. After numerous letters stating that the agency needs additional time to respond, not a single document has been produced and our client is still waiting for any kind of substantive response.

FOIA has been the law of the land for decades having first been passed by Congress in 1966. The current law requires that, upon receipt of a FOIA request, the federal agency has 20 business days to decide whether or not to respond. If the agency delays or decides to withhold records, the requesting party can bring an action in federal court to compel disclosure. In such actions, the presumption is in favor of disclosure and the agency bears the burden of proving that withholding documents is warranted.

At the inception of his presidency, President Obama issued a Memorandum for the Heads of Executive Departments and Agencies in which he mandated that, “[t]he [FOIA] should be administered with a clear presumption: In the face of doubt, openness prevails . . . In responding to requests under the FOIA, executive branch agencies . . . should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.” Based on a recent federal court decision, it is apparent that at least one federal agency did not receive, has not read, or simply discarded the President’s Memorandum.

In Landmark Legal Foundation v. EPA, 2014 U.S. Dist. Lexis 24620 (D.D.C. Mar. 2, 2015), the Unites States District Court for the District of Columbia issued a scathing Order in which it stated: “Either the EPA intentionally sought to evade Landmark’s FOIA request so that the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark’s request. Either scenario reflects poorly upon the EPA and surely serves to diminish the public’s trust in the agency.” The Court also concluded that some of EPA’s litigation tactics were “insulting to Landmark and this Court” and that, despite multiple mistakes in handling the FOIA request, “the agency’s refusal to accept responsibility for its mistakes throughout this case is baffling.” While the Court found that the evidence did not support the imposition of sanctions, it was “left wondering whether EPA has learned from its mistakes, or if it will merely continue to address FOIA requests in the clumsy manner that has seemingly become its customer.” The Court concluded that it “is not optimistic that the agency has learned anything.”

It is odd to see a federal court lamenting the abuses of a governmental agency when it has the power to curb such abuses, but the Landmark decision provides a lesson for any organizations who are considering submitting a FOIA request. To be fair, some federal agencies, such as the Equal Employment Opportunity Commission, are prompt in responding to FOIA requests related to individual charges of discrimination. However, for requests that seek information beyond the mundane, requestors would be wise to prepare for delay, difficulty and, perhaps, even a fight in obtaining full disclosure.

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