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FOIA Update: FOIA Counselor: "Preclusion" Doctrines Under the FOIA

FOIA Update
Vol. VI, No. 3

FOIA Counselor

"Preclusion" Doctrines Under the FOIA

Operating on the premise that giving a litigant more than one opportunity in court is a "'luxury that cannot be afforded,'" the U.S. Court of Appeals for the D.C. Circuit recently applied traditional legal principles to a FOIA lawsuit to preclude a requester from relitigating an issue it had lost in a prior FOIA case. National Treasury Employees Union v. IRS, No. 84-5548, slip op. at 5 (D.C. Cir. July 9, 1985) (quoting C. Wright, Law of Federal Courts 678 (4th ed. 1983)). These principles are embodied in the related "preclusion" doctrines of res judicata and collateral estoppel, which the courts have developed in order to conserve judicial resources, relieve parties of the cost and vexation of multiple lawsuits, avoid inconsistent judgments and prevent forum shopping. See United States v. Mendoza, 104 S. Ct. 568, 571 (1984).

Both doctrines have been utilized successfully to foreclose relitigation of access rights under the FOIA. Indeed, although their technical applicability is limited to the actual defense of FOIA suits, the time and resource conservation which they afford agencies makes familiarity with their scope and application important to all government access professionals.

Res Judicata

Res judicata -- or as it is sometimes referred to, "claim preclusion" -- bars litigation of a second FOIA suit, based on the same claim or request, brought by parties who have already obtained a judgment on the merits of that claim or request. See, e.g., Katz v. Department of State, 596 F. Supp. 196, 196 (E.D. Mo. 1984); Church of Scientology v. IRS, 569 F. Supp. 1165, 1168-69 (D.D.C. 1983). It has been employed in the FOIA context to prevent forum shopping by a plaintiff who has previously sued unsuccessfully in another jurisdiction. See, e.g., Ely v. Bureau of Prisons, Civil No. 84-2482, slip op. at 2-3 (D.D.C. Apr. 16, 1985); Crooker v. Federal Bureau of Prisons, Civil No. 83-2845, slip op. at 1-2 (D.D.C. Mar. 30, 1984). It should be noted that precise uniformity of parties, issues and documents has not always been required. See, e.g., Ely v. Bureau of Prisons, slip op. at 4 (similarly phrased requests sufficient); Crooker v. Federal Bureau of Prisons, slip op. at 1-2 (requests for same document to two separate components of agency).

Res judicata also bars subsequent actions on claims that should have been -- but were not -- raised in the first proceeding. See Hensley v. Department of Justice, 3 GDS ¶ 82,343 at 82,897 (S.D. Ohio 1981) (FOIA action against Department of Justice and one of its components should have been raised in prior FOIA action against Department of Justice and another of its components); cf. Prothman v. IRS, No. 84-1339, mem. op. at 2 (8th Cir. May 7, 1984) (Privacy Act claim barred because it could have been raised in prior civil rights action). When changed circumstances have altered the legal issues involved, however, res judicata will not be invoked against a persistent requester. See, e.g., Wolfe v. Froehlke, 358 F. Supp. 1318, 1319 (D.D.C. 1973) (agency asserted different basis under Exemption 1), aff'd, 510 F.2d 654 (D.C. Cir. 1974); see also Bubar v. Department of Justice, 3 GDS ¶ 83,227 at 83,955 (D.D.C. 1981) (Open America stay granted by first court; second court, finding no change in circumstances, applied res judicata). In this connection, it has been held that if the agency makes a preliminary showing that res judicata is applicable to the requested documents, the burden of showing "subsequent material changes in law or fact" must be borne by the requester. Church of Scientology v. IRS, 569 F. Supp. at 1168-69.

Collateral Estoppel

Under collateral estoppel -- also termed "issue preclusion" -- a party who has had "a full and fair opportunity to litigate an issue and lost in prior litigation may be foreclosed from relitigating that issue in subsequent cases, even where the opposing party is different." Cliff v. IRS, 496 F. Supp. 568, 576 (S.D.N.Y. 1980). Thus, a FOIA requester is barred from relitigating access to a document when a court has previously approved the nondisclosure in litigation against another agency. See, e.g., Church of Scientology v. Department of the Army, 611 F.2d 738, 750-51 (9th Cir. 1980). Additionally, a requester is barred from maintaining a second action for different versions of the same information. See National Treasury Employees Union v. IRS, slip op. at 7 & n.7 (request for subsequent year's version of the same document). As with res judicata, collateral estoppel is inapplicable if there has been a material change in the law or facts. See, e.g., Minnis v. Department of Agriculture, 737 F.2d 784, 786 n.1 (9th Cir. 1984) (Supreme Court's clarification of meaning of "similar files" permits Exemption 6 issue to be relitigated by agency on subsequent year's version of same document), cert. denied, 105 S. Ct. 2112 (1985).

An emerging issue in this area of the law is whether the government should be able to invoke the doctrine against requesters who sue for access to records which have already been found to be exempt from disclosure in a suit brought by an unrelated party. Based on the principle of stare decisis, courts often give weight to the determinations made by other courts when the same documents are at issue, see, e.g. Ray v. Department of Justice, 558 F. Supp. 226, 227 (D.D.C. 1982) ("the Court need not consider the question anew"), aff'd, 720 F.2d 216 (D.C. Cir. 1983), but this still requires the agency to rejustify and reargue its position. Because FOIA plaintiffs are often considered as private "attorneys-general" when they pursue public claims to government information, it follows that they should be bound by prior determinations -- even in cases involving other parties -- on the same issue. Indeed, one of the foremost legal treatises on federal courts has espoused the use of collateral estoppel in this general context. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4458 (1981); see also Common Cause v. IRS, 1 GDS ¶ 79,188 at 79,351 (D.D.C. 1979), aff'd on other grounds, 646 F.2d 656 (D.C. Cir. 1981). Application of the mandatory doctrine of collateral estoppel to nonparties -- rather than the uncertain utilization of the discretionary doctrine of stare decisis -- would conserve judicial resources, promote the finality of decisionmaking and increase consistency in the development of FOIA law.


In sum, when FOIA requesters bring repetitive lawsuits concerning the same documents or issues against the same or even other federal agencies, the courts have not hesitated to invoke the preclusion doctrines of res judicata and collateral estoppel to dismiss the second proceedings. Moreover, when different requesters attempt to relitigate an agency's determination under the FOIA, sound policy reasons suggest strongly that the principle of nonparty collateral estoppel should bar such actions.

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Updated August 13, 2014