Report: Federal Government Doesn’t Track the Cost of Losing FOIA Lawsuits

At least a dozen government agencies have no idea how much money they spend defending wrongful Freedom of Information Act decisions in court, a watchdog concluded.

The Government Accountability Office identified 112 FOIA lawsuits from 2009–2014 where a federal judge took requesters’ side. In more than half those cases, no one attempted to calculate the price of losing a court battle, according to the oversight report released Thursday.

Eleven of the 28 agencies GAO queried couldn’t enumerate a price tag for FOIA determinations that a judge overturned. Worse, the Justice Department, tasked with both overseeing FOIA compliance and defending the government in court, tracked even less of the money’s outflow. Attorneys totaled litigation costs for only eight of the 112 cases they argued and lost. In 11 other cases, the attorneys’ fees that Justice reported owing to plaintiffs differed from the amount agencies reported, the GAO audit found.

Why does this figure matter? It could put an exact price tag on government secrecy. If the feds simply released more records, costly litigation could be avoided, transparency advocates say. In other words, if we’re spending on FOIA, shouldn’t the dollars go to processing, rather than litigating bad cases?

How a FOIA request becomes a lawsuit. / Government Accountability Office
How a request becomes a lawsuit. / Government Accountability Office

When FOIA was signed by President Lyndon B. Johnson in 1966, it allowed any requester to sue (normally, within six years of a denial) to obtain “improperly withheld” records. After Watergate, Congress strengthened the law in 1974, entitling requesters to recoup attorneys’ fees if they prevailed substantially. Since 2006, the federal government has been sued for FOIA violations 3,350 times. Lawsuits have increased from midway through Bush’s second term to the latter end of Obama’s by 57 percent. Last year, close to nine FOIA lawsuits were filed every week.

Despite the increasing caseload, Justice Department attorneys don’t track their expenses for FOIA lawsuits. Neither of the United States Attorney’s Office’s two case management systems — LIONS and USA-5 — log hours spent on individual cases. Over in the Civil Division, lawyers can input time spent in CASES, a separate management system, but they are not required to do so. So when GAO asked, the Department could only tabulate the cost of eight cases: $97,000. No one knows how much the other 104 lawsuits sucked out of the Justice Department.

In response to the audit, Justice claimed this exact figure was too insignificant to merit measurement. The agency stressed that it already collects and proactively releases plenty of other stats on FOIA administration, including an annual listing of all litigation and the quarterly number of requests received, processed and backlogged by agency. In comparison, totaling the funds for this one subset of lawsuits might not be worth the Justice Department’s time, wrote Michael H. Allen, deputy assistant attorney general for policy, management and planning.

“The requests that GAO identified where the plaintiff substantially prevailed in litigation amounts to a fraction of a fraction of a percent of overall FOIA activity. This context should, of course, be part of any consideration when weighing the cost of additional reporting for this discrete data point,” Allen wrote in an August 8 response letter.

FOIA requesters, on the other hand, point to a different weighing game. Of the $144 million spent on FOIA lawsuits during this period, they want to know exactly how much went to unwinnable lawsuits in order to change FOIA’s financial calculus. If FOIA officers see they are bleeding money in court, they reason, the losses could deter future withholding. An administrator with a slim budget could save money, sunshine activists say, by simply releasing records up front, rather than after protracted legal fights.

At least, that’s the theory. Until there’s a full accounting, Justice’s choice to defend an agency determination won’t be based on the finances.

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