Vol. VI, No. 3
FOIA Litigation Requires Coordination
The litigation of a Freedom of Information Act case frequently involves issues and procedures that are unique to that area of the law. At the administrative level, agencies are responsible for processing initial requests for access to their records and for adjudicating any appeals from those actions.
However, when an agency is taken to court by a requester in a FOIA lawsuit, the Department of Justice almost always represents the defendant agency on behalf of the government. (Exceptions are made for certain independent regulatory agencies such as the NLRB, SEC and EEOC, which usually represent themselves in court.) FOIA cases are defended either by the local U.S. Attorney's office or by the Civil Division of the Department of Justice (or by the Tax Division, in the case of IRS records), with agency legal and FOIA staffs playing a vital supporting role.
In FOIA litigation, the defendant agencies are the clients of the Department of Justice. During the past two decades, as FOIA case law has developed in the courts, this attorney-client relationship has developed as well.
"In the district court of the District of Columbia we have a high volume of civil litigation, a large part of which is FOIA litigation," says Royce C. Lamberth, Chief of the Civil Division of the U.S. Attorney's Office for the District of Columbia. A very large percentage of all FOIA litigation is conducted through his office (see related story below).
"We rely very heavily on the professional care and cooperation of the agency attorney and the agency's FOIA processing staff," Lamberth stresses. "Experience has shown that have can anticipate high quality document processing and litigation assistance when we get to court."
It is extremely important for the Justice Department litigator to work closely with the agency in the preparation of its Vaughn affidavit. in the filing of motions and briefs, and in the making of oral representations and arguments before a court.
"We always discuss the cases with the agency attorney and send him or her an example of a Vaughn affidavit that meets the criteria of the court in this circuit," says John Oliver Birch, deputy to Lamberth and an experienced FOIA litigator himself. "We try to determine and discuss in advance the particular circumstances of each case which might warrant a special or especially careful approach on certain points."
The coordinative relationship between the Assistant U.S. Attorney and agency counsel varies from agency to agency, even from case to case.
"Some agencies prepare briefs and send them to us for review before filing," observes Birch. "Other agencies rely on the Assistant U.S. Attorney to prepare all briefs and motions. This depends on the agency's perception of its role in the litigation process. Also, some agencies have demonstrated a historical capacity to handle litigation. Given the average workload of Assistant U.S. Attorneys, we're happy with all the help we can get," he adds.
"The degree of agency involvement varies on a case-by-case basis," agrees Barbara L. Gordon, Assistant Director of the Federal Programs Branch of the Civil Division of the Department of Justice. The Justice Department's Federal Programs Branch oversees all FOIA litigation nationwide and also handles some FOIA cases directly.
"We depend on the agency attorneys to marshall the facts," Gordon emphasizes. "The cases involve their programs and their people. Therefore, they are the experts in understanding agency procedures and practices. They provide the expertise which enables us to assess what exemptions apply or what legal positions should be taken. We always like to have the agency attorney with us in court."
"At the Department of Labor, we work in close cooperation with the Department of Justice attorneys," says Sofia P. Petters, Counsel for Administrative Services in the Solicitor of Labor's Office.
"We prepare answers, briefs, affidavits, memoranda of law -- everything that needs to be done -- and send the entire package to the Department of Justice or the U.S. Attorney's Office," adds Petters.
"We have a closer feel for what the agency's position is. We have immediate and ready access to the people in the offices and subdivisions of this department. We are the people who can most directly advocate our agency's point of view. That's our function.
"Over the years our association with the Department of Justice has been excellent," she continues. "We like to make it joint effort. They know the local rules and judges, and we represent the agency point of view."
The typical FOIA case at the Department of Labor usually involves one of the Department's law enforcement s functions. "We investigate labor-related accidents, the kind of cases that can lead to tort actions," explains Petters. "We receive many FOIA requests from people who seek access to our investigative files. They may be interested in witness testimony or in the report of the investigating official. Therefore, we get a lot of work under Exemptions Five and Seven."
At the Department of the Interior, the degree of involvement in FOIA litigation by the agency attorney depends very much on whether the action is filed in the District Court for the District of Columbia or in another jurisdiction.
"Generally when litigation is outside the District of Columbia, we do just about everything," says John D. Trezise, Assistant Solicitor at the Interior Department. "The Assistant U.S. Attorneys outside Washington, D.C. are usually not as familiar with the FOIA." This relative unfamiliarity, combined with their usual heavy workload, often leads Assistant U.S. Attorneys to rely very heavily on the legal work of agency counsel.
"However, in the District of Columbia, the more typical attorney-client relationship prevails," Trezise notes. "The Assistant U.S. Attorneys know the FOIA and take a very active role."
A "traditional" litigation report is often not prepared in FOIA cases. "A litigation report is more helpful when dealing with a program-type statute, like the Endangered Species Act," explains Trezise. "In FOIA litigation, we either draft the briefs or work directly with the Assistant U.S. Attorney, supplying the administrative record and affidavits and perhaps some additional materials dealing with the specific issues of the case.
"For example," he continues, "we receive many requests seeking the financial records of Indian tribes and we already have memoranda prepared on the issues posed by such requests."
Another agency regularly sued under the FOIA is the Federal Trade Commission, although the volume of its FOIA litigation has declined sharply since the enactment of the Federal Trade Commission Improvements Act of 1980. This statute precludes the disclosure of confidential business information at the FTC or the disclosure of its investigatory files, regardless of whether an investigation is ongoing or has been terminated.
"At the Federal Trade Commission, we have clearly defined policies governing the release of information under the FOIA," says Ernest Isenstadt, Assistant General Counsel. "I think that this has helped to forestall a lot of litigation.
"But when the Commission is sued over a FOIA matter," Isenstadt adds, "the first thing we do is ascertain whether we'll be represented by the Federal Programs Branch of the Department of Justice or by the U.S. Attorney's Office.
"An Assistant U.S. Attorney may not have a great deal of time to prepare pleadings and legal memoranda. The Commission typically prepares the necessary court papers and sends them to the U.S. Attorney's Office for review and filing. When the Federal Programs Branch attorneys represent us, however, they usually prepare the papers themselves."
This is all worked out on a case-by-case basis, depending largely on attorney availability. "It's a cooperative relationship," notes Isenstadt. "We've seldom had a problem. We stand prepared to do everything that is necessary."
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