The value of enhancing oversight for Freedom of Information Act (FOIA) lawsuits is hard to determine because the litigation-related costs can’t be fully determined, according to a recent Government Accountability Office study.
FOIA requires federal agencies to provide the public with access to government information, but many FOIA requests are denied or not responded to in a timely manner, allowing the requestors to litigate.
FOIA lawsuits have increased 57 percent since 2006 (there have been 1,672 with decisions rendered between 2009 and 2014). Requiring the Department of Justice and agencies to report actual costs could lead to improved transparency of federal operations. However, of the 112 FOIA lawsuits from 2009 to 2014 where the plaintiff substantially prevailed, costs were not specifically tracked by the DOJ.
This means that DOJ only reported $97,000 in costs for defending eight of the 112. Seventeen of 28 individual agencies in the study had a mechanism that allowed for cost information on 57 of the 112 lawsuits, revealing $1.3 million in costs incurred.
Costs associated with FOIA lawsuits are comprised of DOJ’s costs for defending the lawsuits on behalf of agencies, agencies’ respective costs, and any attorneys’ fees and costs as assessed by a court or based on settlement agreements awarded to the plaintiffs’ attorneys. However, agencies follow DOJ’s guidance, which doesn’t require reporting on specific lawsuits, or if the plaintiff prevailed.
In addition, DOJ’s reported fees on 11 of the 112 lawsuits differed from agency reports due to the appeals process and settlement agreements between the respective agencies and plaintiffs.
GAO recommends Congress determine if transparency in reporting FOIA litigation costs outweighs costs associated with such reporting. If so, DOJ could be required to provide a cost estimator for lawsuits where plaintiffs prevailed.
