FOIA Litigation Is Rising, and the Cost Is Unclear

Lawsuits from unsatisfied Freedom of Information Act requesters rose 57 percent over the past decade, and yet the Justice Department has not thoroughly tracked the resulting costs, according to a new audit.

Since 2006, Justice has reported 3,350 FOIA lawsuits filed against agencies, the Government Accountability Office said in a report released Thursday. A number of the suits were from plaintiffs challenging an agency denial or delay in releasing requested documents and, when successful, demanding that the government pay their attorneys’ fees.

“The costs associated with FOIA lawsuits where the plaintiff prevailed cannot be fully determined because not all federal agencies, including Justice, track their costs at the individual lawsuit level,” GAO said in a report addressed to Sens. Chuck Grassley, R-Iowa, and Patrick Leahy, chairman and ranking member of the Senate Judiciary Committee. “Moreover, the data regarding attorneys’ fees and costs reported by Justice do not capture changes in award as a result of appeals or settlement agreements.”

The year-long audit of cases involving Justice itself or Justice going to court on behalf of one of 28 agencies found that of 1,672 FOIA lawsuits with a decision rendered between 2009 and 2014, the plaintiff substantially prevailed in 112, but litigation costs “could not be fully determined.” Of those 112 lawsuits, Justice provided information on its costs for defending eight lawsuits totaling about $97,000.

“Justice officials stated that the department does not specifically track costs for lawsuits in which the plaintiffs substantially prevailed and that its attorneys are not required to track such costs for individual lawsuits.”

GAO auditors used their own methodology to determine costs on 57 of the 112 selected suits, which it estimated as costing the government $1.3 million. And for 11 of the lawsuits, Justice “reported an amount of attorneys' fees and costs awarded that differed from the amounts reported by the defending agencies,” GAO wrote, a discrepancy Justice attributed to agency settlement agreements during the appeals process.

The watchdog recommended that Congress consider requiring Justice to provide a cost estimate for collecting and reporting information on expenses incurred when defending lawsuits in which the plaintiffs prevailed. “There would be costs associated with doing so,” GAO wrote. “Considering these costs relative to the potential benefits could help in determining whether establishing such a requirement would be an effective means of enhancing FOIA litigation-related operations.”

Justice welcomed the suggestion for improving its annual report on litigation but noted in a letter that “of the nearly 5 million FOIA requests that have been processed since 2009, only a fraction of a percent have involved litigation.” The cases GAO mentioned where the plaintiff prevailed, Justice added, amounted to a “fraction of a fraction of a percent of overall FOIA activity.”