FOIA Update: FOIA Focus: Leonard Schaitman

Whenever the Government suffers an adverse decision in a case, the Department of Justice, as the Government's lawyer, must decide whether to appeal that ruling. Appeals are never automatic, but instead result from a carefully structured process that brings the case and recommendations from many lawyers to the desk of the Solicitor General. By regulation, the final call on all potential appeals, petitions for reconsideration by an entire appellate court (rehearing en banc), and petitions for certiorari to the Supreme Court rests with the Solicitor General.

In the Freedom of Information Act area a key person in this appeals process is Leonard Schaitman, a career Government lawyer who plays a major role in formulating appeals recommendations to the Solicitor General and supervising FOIA litigation for the Appellate Staff of the Department of Justice's Civil Division.

During his 16-year career with "Civil Appellate," Schaitman has seen enactment, implementation and amendment of the FOIA, and he has played a pivotal part in the development of judicial precedent interpreting the various provisions of the FOIA at the appellate court level.

As an assistant director of the Appellate Staff, Schaitman exercises significant responsibility in the Government's efforts to obtain favorable precedents in appellate FOIA cases, whether the Government is appealing an adverse trial court ruling or, as is far more often the case, defending a trial court victory.

The Appellate Staff consists of 38 attorneys, a director, a deputy director, and four assistant directors, including Schaitman. As the Appellate Staff handles a broad range of Civil Division cases, Schaitman works in other areas in addition to FOIA.

In the early days of FOIA, which Schaitman now calls "the horse and buggy days," and on through the mid-1970s, he personally briefed and argued many FOIA cases in the courts of appeals. These cases included Wine Hobby v. Bureau of Alcohol, Tobacco & Firearms, which established a broad construction of the phrase "similar files" in Exemption 6. (The Supreme Court in Washington Post recently adopted the Wine Hobby construction of that critical threshold term.)

These days, Schaitman's responsibilities tend to keep him out of the courtroom. But as a reviewer for other attorneys, a ready source on FOIA law and as a senior advisor, Schaitman views himself not as a policymaker but as a litigator. Part of his job is to give sound advice on how to avoid problems and be consistent in policy.

According to Schaitman, there are four types of factors which the Appellate Staff and, in turn, the Solicitor General will look at in determining whether a case is right for appeal. These are: "(1) Is the Government hurt by the loss? (2) What is the law? Will is the case law support an appeal? (3) What is our legal strategy? Is this a good case to appeal? (4) What are the recommendations of the trial attorney? What does the client want?"

"Sometimes," he says, "you get one and it's very clear. The case just has to te be appealed. In other cases, the indicators are mixed and the Solicitor General must weigh everything and come out with a decision. It's his decision to make."

Schaitman estimates that in the majority of the FOIA cases, the determination is against appeal. Of cases that are appealed, he says, the Government has a good record of wins, which is similar to the Government's overall record in appeals in non-FOIA cases. This past year, the Supreme Court decided three FOIA cases, all in the Government's favor.

Schaitman has come to see the present period as "the time of the FOIA establishment." This is marked by more sophistication on the parts of plaintiffs and defendants alike, by more knowledge about the FOIA, by industries which have grown up around the law, and by more people who know how to handle FOIA cases.

"These days the FOIA is virtually a tool which every lawyer has to know how to use . . . which leads to more litigation," says Schaitman. And, of course, more appeals.

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