Last week, the U.S. Government Accountability Office released the results of an investigation into the costs of FOIA litigation, finding that the costs “could not be fully determined” because several agencies do not track this information.
There is no law requiring agencies to track litigation costs, so the report does not allege any compliance violations on the part of the agencies. But GAO’s recommended solution sure does highlight what a bureaucracy the system has become!
If Congress determines that transparency in the reporting of FOIA litigation costs outweighs increased costs for systems and processes to be developed, then it could consider requiring Justice to provide a cost estimate for collecting and reporting information on costs incurred when defending lawsuits in which the plaintiffs prevailed.
Want agencies to report litigation costs? No problem. Apparently, it’s as simple as getting Congress to consider whether it’s worth considering having Justice consider the costs involved in tracking the costs. Assuming Congress does consider it worth considering, it would only then be a matter of considering if the costs are enough to merit the cost of a cost estimate for the cost tracking systems, and then waiting for Justice to come back with a cost tracking systems cost estimate.
The recommendation stops short of saying what Congress is actually supposed to do once it has that cost estimate, but presumably it would at some point get around to fixing the problem.
Don’t mean to knock the GAO. The report is generally well done, but the conclusion really highlights why FOIA reform is so difficult.
Perhaps more interesting than the costs of FOIA litigation, the report also includes information about the outcomes of FOIA lawsuits decided between 2009-2014.
FOIA has its shortcomings, but one area where it does OK is its annual reports. They contain a surprisingly detailed and complete set of statistics on request outcomes, costs, backlogs, response times, and just about any other piece of information you could want to know about each agency’s FOIA caseload. For more information, see: summary of annual FOIA reports, 2008-2015 or statistics for individual agencies.
The FOIA lawsuit stats are interesting because litigation is perhaps the only major FOIA-related matter not documented in the annual reports. GAO’s report acknowledges that their information is incomplete, so who knows whether the litigation outcomes are representative of the government as a whole. But if they are, the chance of winning against the government in a lawsuit is extremely low.
According to the report, “of the 1,672 Freedom of Information Act (FOIA) lawsuits with a decision rendered between 2009 and 2014, GAO identified 112 lawsuits where the plaintiff substantially prevailed [and were awarded legal fees as a result].” Based on those numbers, less than 7% of FOIA requesters who take their case to court will ultimately win outright (responsive records + legal fees). As pointed out by FOIA Advisor, there are cases in which a plaintiff may substantially prevail on the merits of the case, but not be awarded legal fees (for example, if the records do not serve the public interest).
Combining GAO’s litigation results with the annual FOIA reporting figures, the chart above shows how the outcomes of FOIA requests were distributed between 2009 and 2014. The green outcomes are those cases in which the request was granted in full, or the requester substantially prevailed in litigation. Red outcomes include everything else: denials, information withheld in full or in part, or no records released for any other reason.
More about my background
Latest posts by Max Galka (see all)
- Who Uses FOIA? – An Analysis of 229,000 Requests to 85 Government Agencies - March 13, 2017
- FOIA Litigation: Considering whether the costs are worth considering - September 16, 2016
- Mapping the 22,000 weapons confiscated at U.S. airports in 2015 - August 1, 2016