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FOIA Update: Approaching the Bench: Initial Litigation Strategies

FOIA Update
Vol. II, No. 2

Approaching the Bench

Initial Litigation Strategies

When an agency is sued under the Freedom of Information Act (FOIA),(1) preliminary determinations should be made at or before the time that the agency files its answers to the complaint joining issue with the requester. Addressing these threshold questions can result in completely dismissing a legally insufficient claim, eliminating issues, or otherwise placing a case in the proper posture for the most efficient adjudication on the merits. Some of the determinations are unique to FOIA litigation while others are common to all civil litigation.

Several of these determinations relate directly to the underlying request. First, the underlying request should be examined to determine whether "agency records," the only records that are the proper subject of a FOIA suit,(2) are being sought. While the FOIA provides no definition of "agency records," it does define "agency" in section 552(e) to include ". . . any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency."(3)

Second, the request should also be examined to determine if it reasonably describes the records sought. Section 552(a)(3) limits an agency's obligation to honor requests to those that do so. This requirement has been interpreted to mean that "[a] 'description' of a requested document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort."(4)

Third, it is also important to determine the exact status of the request. If the plaintiff has failed to submit a proper request or to follow the appeal procedure, the suit may be subject to dismissal based upon the doctrine of exhaustion of administrative remedies.(5) However, section 552(a)(6)(C) also provides that when an agency fails to comply within the time limits the requester shall be deemed to have exhausted his or her administrative remedies. Hence, an agency may find itself in court before it has completed processing the request. In enacting FOIA, Congress recognized that there would be instances when an agency would not be able to meet the relatively short time limits of the FOIA and, accordingly, a "safety valve" was provided to cover such situations. Congress provided in section 552(a)(6)(C) that "[i]f the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records." If an agency finds itself in court before it has had an opportunity to process the request, a determination should be made as to the appropriateness of filing a motion to stay the court action pursuant to Section 552(a)(6)(C).(6)

Two preliminary determinations that are common to all civil litigation are the Court's jurisdiction and the appropriate venue. Under FOIA, these determinations are relatively straightforward. Section 552(a)(4)(B) provides that a Federal district court ". . . has jurisdiction to enjoin the agency from withholding agency records improperly withheld . . . ." Courts have rejected efforts by plaintiffs to use FOIA as a basis for obtaining other relief such as creating explanatory material,(7) compelling expert testimony by agency personnel(8) and granting money damages.(9) Section 552(a)(4)(B) also provides for venue of FOIA suits in the District of Columbia, in the district where the plaintiff resides or has his/her principal place of business, or where the agency records are situated.

In sum, in FOIA cases, as in other litigation, there are preliminary determinations that are necessary to appropriately focus the litigation and to place the case in a posture to be resolved with the greatest judicial economy. The determinations set forth above are intended to be examples and not an exhaustive list of preliminary determinations.


1. 5 U.S.C. § 552,et seq.

2. Forsham v. Harris, __U.S.__ (1980).

3. Section 552(e) amplifies the definition of "agency" set forth in Section 551(1) which excludes from the FOIA's reach "(A) the Congress; (B) courts of the United States; (C) the governments of the territories or possessions of the United States; the government of the District of Columbia . . . " See, e.g., Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 607 F.2d 367 (1979), cert. denied, 445 U.S. 927 (1980) (Congressional Record not subject to FOIA).

4 H.R. Rep. No. 93-876. 93rd Cong. 2d Sess.6 (1974); Marks v. United States Department of Justice, 578 F.2d 261, 263 (9th Cir. 1978).

5, E.g., Tuchinsky v. Selective Service System, 418 F.2d 155, 158 (7th Cir. 1969); Satra Belarus, Inc. v. NLRB, 409 F. Supp. 271 (E.D. Wis. 1976).

6. See Open America, et al. v. The Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).

7. NLRB v. Sears, Roebuck Co., 421 U.S. 132, 162 (1975); Krohn v. Department of Justice, 628 F.2d 749, 751 ( 1st Cir. 1980).

8. Giza v. HEW, 628 F.2d 224, 226 n.4 (D.C. Cir. 1980).

9. Gale v. U.S. Department of Justice, et al., 628 F.2d 224 226, n.4 (D.C. Cir. 1980).

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Updated August 13, 2014