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FOIA Update: Approaching the Bench: Affidavits

FOIA Update
Vol. I, No. 2

Approaching the Bench


The single most important assignment in defending a FOIA lawsuit is preparation of an agency affidavit. An affidavit is a document which contains information relevant to a case which is sworn to by the agency employee. The affidavit fulfills much the same function as an individual's direct testimony in court: it is evidence about the facts demonstrating that the government's claims are legally correct. It is not a presentation of legal arguments or legal conclusions.

An affiant may be a high level official at the agency, but often is not. Where several agency employees could appropriately sign the affidavit, the best affiant is often the person most likely to be a good witness if oral deposition is subsequently sought.

The litigator responsible for defending a suit may decide that information is needed from more than one appropriate person at the agency. Thus, "Telling the Agency's Story" fully may require affidavits from several people.

Agency lawyers should adequately research which employees are most knowledgeable about the function of the documents withheld and the harm claimed if they are released. It is these facts that are most likely to help resolve the issues. It is also necessary to include the chronology of correspondence concerning the FOIA request, but these facts are usually not the ones which explain the basis of the agency's defense.

The legal arguments and legal conclusions are generally set forth in an accompanying memorandum of law. The affidavits signed by agency personnel in FOIA cases are usually used to support a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

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Updated August 13, 2014