The Freedom of Information Act - Exposing Government Malfeasance and (In)action

Sunshine is said to be the best of disinfectants.
Supreme Court Justice Louis Brandeis, Other People’s Money

Combatting government corruption, exposing official malfeasance, and reversing unlawful federal actions will frequently require obtaining records from the government itself. Fortunately, decades ago Congress acknowledged that an informed citizenry, armed with such records, can serve as an important check on the federal government’s power. This is why Congress passed the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA") in 1966.

The FOIA is a powerful tool for environmental advocacy and government accountability. It authorizes citizens to obtain records from federal agencies, oftentimes free of charge, and creates an affirmative presumption that such records shall be disclosed to the requesting party.

Nonetheless, obtaining records under the FOIA can be difficult, time-consuming, and frustrating. Records may not be found or may be released with significant redactions. The government may wish to charge the requesting party an unreasonably high fee to search for and duplicate the requested records. And if the government decides not to fully comply with a request, then the citizen seeking records must resort to the administrative appeal process.

The final step in resolving disputes under the FOIA is suing the government in federal district court. While one may proceed without a lawyer in such an action, federal practice and procedure is very different than local or state court rules, and dealing with the United States Department of Justice requires knowledgeable and experienced legal representation.

Our team possesses substantial experience assisting citizens, advocacy groups, and national non-profit environmental organizations with the FOIA process, from formulating tailored requests for records to winning judgments against the government for unlawfully withholding records from the public. We have prevailed in difficult "pattern or practice" claims against federal agencies and brought strategic FOIA litigation designed to inform stakeholders and decision-makers of the government’s action or inaction. And he often does so without charging his clients an hourly rate, as the FOIA authorizes successful plaintiffs to obtain an award of fees and costs from the government.

A representative sampling of our work includes:

Buffalo Field Campaign v. National Park Service, 9:19-cv-165-DWM (D. Mont. 2019) (case challenging National Park Service’s invocation of exemption 5 to agency records; court ruled in plaintiff’s favor following cross-motions for summary judgment, resulting in unredacted records produced to plaintiff).

Buffalo Field Campaign v. Department of the Interior, 9:19-cv-166-DLC (D. Mont. 2019) (Interior failed to timely respond to FOIA request or provide responsive records; case resolved after record production with government agreeing to waive contested exemptions).

High Sierra Hiker’s Association v. National Park Service, 3:16-cv-2609 (N.D. Cal. 2016) (alleging Park Service failed to timely respond to FOIA request, conduct a reasonably adequate search for records, or produce all non-exempt records concerning management plan at Sequoia and Kings Canyon National Parks; case resolved by settlement agreement after litigation and record production).

Humane Society of the United States v. United States Environmental Protection Agency, 1:14-cv-00840-RC (D.D.C. 2014) (claiming EPA improperly applied FOIA exemption (b)(5) to specific records and failed to produce all non-exempt records concerning the Animal Feeding Operation Consent Agreement and Final Order; case resolved by settlement agreement after litigation and record production).

Buffalo Field Campaign v. United States Department of Agriculture, Animal and Plant Health Inspection Service, 9:12-cv-00035-DWM (D. Mont. 2012) (alleging pattern and practice claim based on insufficient responses to multiple FOIA requests and repeatedly missed statutory deadlines, case resolved by settlement agreement obligating federal agency to retrain FOIA staff).

Center on Race, Poverty, and the Environment v. United States Environmental Protection Agency, C. 12-5074 LB (N.D. Cal. 2012) (alleging EPA unlawfully withheld thousands of records concerning the Title VI Complaint in Angelita C. V. California Department of Pesticide Regulation and Padres Hacia Una Vida Mejor v. California Department of Toxic Substances Control; after years of litigation and significant record production by the government, case resolved by settlement agreement). Read a summary by the Center for Public Integrity.