chapter six Going to Court Litigating Your FOIA Request MAY I LITIGATE If you are not satisfied with the agency’s decision on your FOIA request or if the agency has been nonresponsive you have the right to file a lawsuit in federal court under the FOIA Often litigation will produce a strict schedule for review of the records and additional review by different agency officials of the agency’s exemption claims There are many considerations that may affect your decision to litigate your FOIA request The FIGURE 6 1 following is a brief introduction ADDITIONAL RESOURCES FOR FOIA LITIGATION and is not intended to be a This chapter is not a comprehensive guide to FOIA litigation comprehensive guide to FOIA Please consult the following sources and or an attorney for litigation 24 Keep in mind that you cannot litigate a denial of information in response to an MDR request See ch 4 for more information about appealing MDR denials additional information • Litigation Under the Federal Open Government Laws 2008 Harry A Hammitt et al 2008 • Department of Justice FOIA Guide March 2007 http www usdoj gov oip foia_guide07 htm • Resources for FOIA Legal Research on the Internet from Public Citizen http www citizen org litigation free_ info foic_lr SHOULD I LITIGATE Bringing a lawsuit requires a commitment of time and resources A private attorney will often require you to provide an upfront retainer for his or her work If you are successful in your suit it may be possible in some cases to recoup the attorney’s fees from the government Although you may litigate a case without an attorney it may be difficult to make an impact on your own if you are not familiar with case law and court procedures In making the decision to litigate remember that judges do not look kindly on frivolous cases You must consider whether your dispute is worth bringing to court How important are the records you are seeking Is the agency engaging in a pattern or practice that is systematically interfering with your research and that is in violation of the law Are you able to gain support from other organizations or FOIA requesters to help explain to the court the importance of the case Do you know enough about the denied records to make a compelling case in court - 52 - WHAT ISSUES MAY I LITIGATE Under the FOIA and the Administrative Procedure Act a requester may litigate when he or she believes that the agency has improperly withheld agency records that should have been disclosed In addition requesters may litigate over fee questions such as when the agency charges excessive fees or denies a fee waiver or any other agency decision that impairs the requester’s ability to obtain the requested information for example excessive delay unreasonable interpretation of the request inadequate search for records etc WHEN MAY I FILE A FOIA LAWSUIT Before bringing a FOIA lawsuit the requester first must exhaust his or her administrative remedies which means receiving the agency’s denial filing an administrative appeal and receiving a denial of the appeal Alternatively you may file a lawsuit without having filed an administrative appeal if the agency fails to comply with any of the FOIA’s time limits twenty working days to respond to an initial request or to respond to an administrative appeal In some cases it may be effective to go to court immediately after the twenty-day initial request deadline has passed However in most cases it is productive to talk with the agency and wait a reasonable time for the agency to process the request rather than going to the time and expense of litigation before the agency has made its final decision There is a maximum time limit for filing a FOIA lawsuit called a “statute of limitations” The statute of limitations says that you may not go to court to challenge an agency’s decision on your FOIA request if more than six years have passed since the agency’s response to your appeal or since the date your administrative remedies were exhausted i e twenty business days after filing if there has been no agency action on the request It is important to note that when an agency does not respond to a request at all and no administrative appeal is filed within six years the statute of limitations has expired and the requester will not be permitted to file a lawsuit However the requester may simply refile the same request and then litigate the agency’s failure to respond and or subsequent denial WHERE MAY I FILE A FOIA LAWSUIT The FOIA provides that a requester may file a FOIA lawsuit in the federal district court where the requester lives or works or in the district where the records are located i e the agency office that has the records or in the district court in Washington DC - 53 -