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FOIA Update: Approaching the Bench

FOIA Update
Vol. I, No. 1

Approaching the Bench

A requester may decide to go to court to compel the agency to release records. After a lawsuit has been filed, follow these basic guidelines:

Step 1: Usually your first information that a lawsuit has been filed will be when a government lawyer contacts you. When you are served with court papers from the requester, you should immediately identify the litigating attorney from the Department of Justice and the responsible in-house lawyer from your agency.

Step 2: Immediately find out from the litigator what court deadlines require your assistance and take the necessary steps. Usually, the first date will be for the answer to the complaint. In FOIA suits, the answer must be filed in court 30 days after the complaint was served on the U.S. Attorney's office in the district where the suit was filed. If the suit is a Privacy Act (PA) suit, then the answer must be filed within 60 days after the complaint was served.

Sometimes the plaintiff will file interrogatories (written questions) along with the complaint. Or, simultaneously, a plaintiff might file a motion to require a justification affidavit, known as a Vaughn v. Rosen index. The litigator will need your help to respond to these actions right away.

Step 3: It is important that you provide a complete written summary of facts about the FOIA or PA request involved in the lawsuit. The litigator needs this information--known as a litigation report--immediately. Counsel for the plaintiff may contact the litigator right away or the judge may hold a status call (hearing) and ask a lot of questions about the request and the government's answer to it. In either case it is essential that the litigator--the attorney defending the agency--have complete knowledge of the facts immediately.

Step 4: Do not discuss with the plaintiff or the plaintiff's attorney any matters pertaining to the request involved in the lawsuit unless you have first obtained permission to do so from the litigator. It is very likely that the litigator will advise you not to have any contacts with plaintiff or plaintiff's counsel without the litigator being involved. Once a suit has been filed, many issues are before the Court, and you may inadvertently aid the plaintiff's claims against the government or otherwise harm the government's defense, without realizing the effect of your well-intentioned conversations or other dealings with plaintiff or plaintiff's counsel.

The foregoing advice is based upon suggestions from Lynne Zusman, Special Litigation Counsel, in the Justice Department's Civil Division, who has represented agencies in many FOIA suits.

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Updated August 13, 2014