|(16 Dec 2019)
In the last few years, the number of FOIA lawsuits has risen dramatically, much faster than the rise in FOIA requests. Anecdotal reports suggest that delays in receiving responses to FOIA requests may be increasing and a reason for rising litigation.
TRAC's FOIA Project, with the help of a talented summer legal intern, explored the possible impact that delays in receiving responses could be having.
The study found that the number of suits challenging agencies substantive responses had not materially changed in the last four years. Their numbers remained relatively small. Instead, most litigation occurred when agencies failed to respond to FOIA requesters. Suits filed when agencies failed to respond to FOIA requesters have skyrocketed. In more than four out of every five suits the agency had failed to respond.
The statute provides that agencies need to respond within 20 business days. However, in 2019 requesters waited an average of nearly six months (177 days) before filing suit when they failed to receive any response to their request. In addition to not jumping into court quickly when an agency didn't respond, requesters actually waited an average of over 30 days longer before filing suit in 2019 than they had in 2015.
Where agencies did provide a substantive response, average days between a request and the filing of a suit was even longer - over 11 months (339 days). This period also increased between 2015 and 2019.
Because taking the agency to court still only occurs infrequently in FOIA matters, the study next conducted interviews to identify some of the factors entering into the decision of whether or not to file. Attorneys interviewed represented large media organizations, public interest groups, and a variety of law firms.
Despite their many different perspectives, most of the attorneys interviewed readily admitted that requesters should be willing to sue the agency more quickly, especially if certain red flags appear. The most commonly cited indicator of agency unresponsiveness was, not surprisingly, a complete lack of communication. Attorneys who had less than two years of FOIA experience frequently noted that after their initial experience with FOIA, they would sue more quickly in the future.
Litigation is, of course, much more resource-intensive for everyone. Yet agencies are doing very little to combat this trend. Without changes to reduce delays in responding to requesters, costly FOIA litigation appears likely to continue unabated.
To read the full report, go to:
Contribute documents: If you were the plaintiff or attorney in any of these cases, we encourage you to contribute additional court documents - including summary judgment memoranda and declarations filed by either side. To share these with the FOIA community, you can upload them directly to FOIAproject.org at the "Contribute User Documents" link on each case detail page, or email them to firstname.lastname@example.org.
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