Preemptive FOIA Suits Chill Transparency Across the U.S.

Freedom of Information Acts (FOIAs) have been strong anticorruption tools in the United States for decades. Though the federal government and the 50 state governments each have their own version of FOIA, the basics are similar across the board: these statutes require the publication of certain government documents and allow any citizen to request the disclosure of unreleased records, and the government must provide that information, subject to certain important exemptions (for example, exceptions related to national security, personal privacy, and internal government deliberations). If the government agency does not answer a FOIA request within a certain period of time, set by the statute, the requester can file a FOIA lawsuit to force the agency to respond.

At the federal level, FOIA requests were one of the tools used to uncover former Health and Human Services Secretary Tom Price’s use of private charter planes for government travel, leading both to his resignation and to increased scrutiny on travel by other Cabinet members. The federal FOIA also played a key role during the Clinton Administration in uncovering corruption at the Department of Agriculture. Though the state-level FOIA laws get less attention, they have also played an important role in exposing corruption and related misconduct. In Virginia, for example, requests under the state FOIA helped build the corruption case against former Governor Bob McDonnell. Similarly, Michigan’s FOIA statute helped reveal information that led to charges against Detroit’s mayor for misconduct and obstruction of justice.

However, a new threat has recently emerged to the effectiveness of these laws, particularly at the state level. State and local governments have begun responding to state FOIA requests by suing the requester to ask the court for a so-called “declaratory judgment” that the agency is not obligated to release the information requested. These preemptive FOIA suits put one of the most powerful anticorruption tools in the United States at risk.

To understand why these preemptive suits pose such a problem, it’s important to understand what typically happens if a citizen files a FOIA request for information that the government does not want to turn over and believes it is legally entitled to withhold. If a government agency refuses to turn over the information requested on the grounds that the material requested falls within one of FOIA’s statutory exemptions, and the requesting party believes that the government is wrong to deny the request, the requester can sue to have a court review the denial. Crucially, if the court rules in the requester’s favor, the state can be liable for the requester’s legal bills. This fee-shifting provision makes FOIA lawsuits accessible to the public despite generally high costs of litigation.

However, when state governments or agencies preemptively sue the requester after the requester has filed a FOIA request but before the requester has sued, they flip the script and chill the transparency power of FOIA suits, for two reasons.

  • First, for requesters who are ordinary citizens who do not routinely file FOIA requests, there is a huge psychological shock to being served a lawsuit. Even though the suit is technically for a declaratory judgment – the government agencies are not seeking damages from the requesters – most people are understandably afraid of the complications and costs of litigation, so may not hire a lawyer to contest the state’s suit.
  • Second, and perhaps more importantly, preemptive suits allow the government to do an end-run around FOIA’s fee-shifting rule. As noted above, under typical FOIAs, if a requester sues the government for wrongfully denying a FOIA request, and the requester wins, the government usually has to pay the requester’s legal fees. This means that people are more likely to front the costs of litigation they are likely to win. When the state sues preemptively, however, the FOIA fee-shifting rule doesn’t apply (because the suit is not technically brought under the FOIA), meaning that the requester has to pay their own fees regardless of the outcome. States can therefore put big financial burdens on FOIA requesters, deterring them from litigating even in cases where the information requests clearly should be granted.

While these sorts of preemptive suits are not completely new, they seem to have increased since 2014. Defenders of such suits have argued that it is helpful to have courts bring clarity to what governments have to divulge, especially when divulging the information request may conflict with another important value, such as personal privacy. However, courts can make those determinations during the course of normal FOIA lawsuits brought by citizens, without the chilling effect or financial burden of preemptive suits. While forcing the government to wait and see if a case is brought does entail some additional cost and uncertainty, that cost is inherent to protecting transparency and is better carried by the state than by requesters.

So what can be done to keep FOIA accessible not just for powerful nonprofits, but also for citizens seeking transparency? Michigan provides a potential model for the rest of the country.

Michigan State Representative Klint Kesto (R-D39) has sponsored a bill to make it illegal for state agencies to preemptively sue FOIA requesters. (The bill was proposed in response to a county bringing a lawsuit—ultimately unsuccessfully—against a local paper that had filed a FOIA request for personnel files during a sheriff election.) The bill passed the Michigan House by a vote of 102 to 5 in 2016 and is currently pending in the Michigan Senate. It is backed by the Michigan Press Association and had broad bipartisan support in the Michigan House—though the Michigan Association of Counties opposes it. The bill’s fate in the Senate remains unclear, and its slow progress there might indicate resistance, but on the whole, this legislation is an encouraging example of a bipartisan legislative solution to this emerging threat to government transparency. (An alternative approach would be to allow the government to file preemptive suits in response to FOIA requests, but to require the government to pay the requester’s legal fees if the government loses its suit, as would be the case if the requester had sued first. However, this solution also fails to ameliorate the psychological effect of a lawsuit, and denies requesters the ability to decide if they want to go to court or not.)

Given the usual cynicism about legislatures, it may seem surprising to focus on legislative solutions, but in this case the state legislatures are probably the best hope for transparency activists to beat back any assault on state FOIAs. State governors could in theory issue executive guidance that would limit the use of preemptive FOIA suits, but governors are likely to resist any limiting of the executive branch’s options—especially since FOIA suits can save states money, and resisting FOIA requests can enable their administrations to prevent politically damaging stories. Transparency activists might also be tempted to turn to the courts to develop precedent that would limit these types of preemptive suits, but this is a high-risk strategy: While transparency activists have won some of these cases, they have lost others (for examples, see here and here). In some of these rulings, the court has just ruled that preemptive suits are allowed, but in Kentucky, one court prohibited sexual harassment or sexual assault allegations from being released under FOIA. While this ruling is being appealed, activists risk building up substantial anti-transparency case law if they pursue a court-centric strategy.

Since the Michigan bill passed the state house, at least two more FOIA requesters have had preemptive suits filed against them in Michigan (see here and here). Transparency activists should focus on lobbying state legislatures, in Michigan and elsewhere, to pass laws restricting preemptive suits against parties requesting information under state FOIAs in order to protect transparency. In the meantime, activists should be aware of the risk of a preemptive lawsuit when they file FOIAs, and be prepared for the possibility the state could sue you.

This entry was posted in Commentary and tagged , , , by Susannah Marshall. Bookmark the permalink.

About Susannah Marshall

Susannah Marshall is a student at Harvard Law School specializing in international law and diplomacy. In law school, she has worked for the American Bar Association Rule of Law Initiative in Yerevan, Armenia, and for the American NGO Protect Democracy. Before law school, she worked in the United States Senate on matters related to energy, the environment, and international trade and labor issues. Susannah is from Minneapolis, Minnesota and speaks Spanish and Mandarin Chinese.

4 thoughts on “Preemptive FOIA Suits Chill Transparency Across the U.S.

  1. Pingback: Preemptive FOIA Suits Chill Transparency Across the U.S. | Matthews' Blog

  2. Apologies if this question stems from a lack of knowledge about the process, but given the declaratory nature of the action, would non-appearance in court by the requester be a risk worth taking?

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