“Court dockets in this district overflow with Freedom of Information Act (FOIA) matters.  Many of those cases seek reams of records, requiring massive efforts from defendant agencies. . . . This is the system Congress hath wrought. And which this Court must dutifully implement.”

American Center for Law and Justice v. DHS, Dkt. No. 21-1364 (D.D.C. Nov. 10, 2021)(McFadden, J.).

In American Center for Law and Justice v. Department of Homeland Security, — F. Supp. 3d —, 2021 WL 5231939 (D.D.C. Nov. 10, 2021), a seemingly run-of-the-mill Freedom of Information Act (“FOIA”) case, D.C. District Judge Trevor McFadden offered a provocative assessment of FOIA.  “Mismatched incentives,” he observed, encourage nonprofit FOIA requesters to make excessively broad requests and bring excessive litigation.  And given the advent of email, he continued, the short time period agencies have to provide records is hopelessly out of date.  Judge McFadden’s critique may be echoed by other judges, the Department of Justice, or members of Congress.

American Center for Law & Justice v. DHS:  Judge McFadden’s Diagnosis of What Ails FOIA

The FOIA Request

Christian Advocates Serving Evangelism, Inc., a nonprofit religious corporation, is “dedicated to the ideal that religious freedom and freedom of speech are inalienable, God-given rights.”  ACLJ website.  The American Center for Law and Justice (ACLJ), a “d/b/a” (i.e., “doing business as”) of Christian Advocates, maintains a docket of state and federal litigation “to ensure that those rights are protected.” Id.  

On April 7, 2021, ACLJ submitted a FOIA request to the Department of Homeland Security (DHS) and three components agencies: Customs & Border Patrol (“CBP”), Immigration and Customs Enforcement (“ICE”), and U.S. Citizenship & Immigration Services (“USCIS”). The request sought “any and all records” regarding eight subjects. The subjects related to President Biden’s border policies, a resultant surge of undocumented aliens , and the surge’s implications for terrorism and the COVID epidemic.  Slip op. at *1-*2. The agencies were to include any records “sent from, prepared by, sent to, received by, reviewed by, or in any way communicated to or by, [DHS] Secretary Alejandro Mayorkas, his aides, staff, representative or agents, or acting predecessor, or any CBP, ICE, or USCIS official.”  Slip op. at *2.  The request covered communications from November 4, 2020, election day, until the date of response.  Id. In response, CBP and USCIS noted the voluminous nature of the request, and CBP explicitly offered ACLJ an opportunity to narrow its request. American Center for Law and Justice v. DHS, Dkt. No. 21-1364, Complaint, ¶¶16, 20 (D.D.C.)(filed May 18, 2021).  Instead, ACLJ initiated litigation. Thereafter, the Department and its components objected to the request as failing to “reasonably describe[]” the records sought.  Slip op. at *1.[1]

Judge McFadden’s Lament

Judge McFadden noted that Congress had enacted FOIA to “assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests.” In his view, FOIA has “ably served” the public interest in checking government corruption and “hold[ing] the governors accountable to the governed.”[2]  But, he observed, such benefits do not come without cost, and those costs had significantly increased since FOIA’s enactment.  Slip op. at *3.

He noted that for much of FOIA’s fifty years “agency communications were in paper form,” and many discussions took place in a form, meeting and phone calls, that did not produce records.  “With email came an explosion of agency records.”  Id.  Many issues discussed in meetings and phone calls are now discussed by email. Such email exchanges generate records that can be searched, dramatically boosting the number or records potentially responsive to a FOIA and, by extension, the time needed to find all responsive records. Id. (citing Melanie Ann Pustay, Memorandums to Messages: The Evolution of FOIA in the Age of the Internet, 126 YALE L.J.F. 252 (2016)).  Yet Congress has not revised the 30-day deadline for agency responses to such request to reflect those realities.  Id. at *4.

And, he complained, “[a]s outstanding requests pile up at agencies, so do FOIA cases on court dockets.” Id.  The 991 active FOIA cases on the D.C. District Court’s docket, represented nearly a quarter of the District’s entire civil docket.  Id.

Then Judge McFadden turned his attention to nonprofit FOIA plaintiffs, who, in his view, bore responsibility for much of the backlog.  He noted that “anyone opposed to an agency’s mission or policies can use FOIA requests to ‘dig up dirt on the policy and the people behind it.’” Id. (quoting David E. Pozen, Freedom of Information Beyond the Freedom of Information Act, 165 U. PA. L. REV. 1097, 1127 (2017)).  And “[n]onprofit organizations dedicated to certain causes” are often at the vanguard of such efforts, frequently initiating “a continuous succession of FOIA lawsuits.”  Id.  Nonprofits, he noted, “accounted for 56% of all FOIA lawsuits filed nationwide in 2018, compared to just 14.2% in 2001.”  Id. (citing figures from FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump, The FOIA Project (Oct. 18, 2018)). And nonprofits are a disproportionate source of repeat litigation.  He listed six “frequent flyers” in the D.C. District: American Oversight (with 74 active FOIA cases), Judicial Watch, Citizens for Responsibility and Ethics in Washington (“CREW”), the Center for Biological Diversity, the Democracy Forward Foundation, and ACLJ.  Id.

Conceding that “nonprofits have plenty of reason to file FOIA requests and to pursue those requests through litigation,” Judge McFadden observed that FOIA adds additional inducements to make broad FOIA requests and follow up with litigation. Id. First, FOIA “limits what an agency can charge noncommercial requesters to cover the costs of any search and response.” Id. at *5 (citing 5 U.S.C. § 552(a)(4)(A)(ii)(II)).  Indeed, he noted, nonprofit organizations will usually qualify for a waiver of all fees.  Second, FOIA requesters may receive attorney’s fees if they “substantially prevail[ ]” in the ensuing litigation.  Id. (citing 5 U.S.C. § 552(a)(4)(E)). 

In Judge McFadden’s view, “[b]oth provisions . . . encourage broadly worded requests.” Id.  “With no fees forcing a nonprofit to internalize the cost of its request, it would have little reason not to request a broader universe of documents.” Id. Moreover, “the odds of an insufficient agency response—and by extension the odds of prevailing in later litigation—increase as the request expands in scope.” Id.  And because agencies are “deprived of fees for their FOIA services,” they have “little reason to prioritize FOIA requests over their other statutory duties.”  Id.

Did the ACLJ’s FOIA Request “Reasonably Desribe[]” the Documents Sought?

Judge McFadden noted that ACLJ had sought “any and all” records regarding eight subjects.  While “capacious,” such language is “neither inherently unreasonable nor uncommon.”  Id.  But specifying any and all records “referencing or regarding in any way” those eight topics was problematic.  The request for documents referencing the topics was permissible, such documents could be identified “with a simple keyword search across agency databases.”  Id.  But with the addition of the word “regarding,” ACLJ’s request sweeps in “any communication ‘even remotely related’ to the eight categories being requested.”[3]  Id. at *6. 

In addition, ACLJ had requested records that were “sent from, prepared by, sent to, received by, reviewed by, or in any way communicated to or by” the DHS Secretary and his “aides, staff, representative or agents, or acting predecessor, or any other CBP, ICE, or USCIS official.”  Id.  Given that formulation, “ACLJ’s request also would require more than a ‘reasonable amount of effort’ to locate responsive documents.” Id.  The term, the Secretary’s “representative or agents,” encompasses each of the Department’s 240,000 employees; “[t]hey all carry out policy directives as pronounced by him.”  Id.  And the request also applies to communications by “any other CBP, ICE, or USCIS official.”  Id. “Every employee at these three sprawling agencies would therefore be implicated by ACLJ’s request, including those that have nothing to do with the border.” Id. 

The Court refused to read the request in the narrower fashion suggested by ACLJ, limiting it to communications by the Secretary’s “aides” and “staff,” namely, an identifiable group of DHS employees closest to the Secretary.  Id. at *6.  Judge McFadden explained that a reviewing court, like the agency, had to “read the request as drafted, not as ACLJ ‘might wish it was drafted.’”  Id.

The Court also faulted ACLJ for defining “record” as “any information that qualifies under [FOIA] and includes, but is not limited to, the original or any full, complete, and unedited copy” of 19 types of written communication.  Though “[s]uch descriptions are not uncommon in a FOIA request,” it was problematic given the breadth of ACLJ’s request.  Id. at *7.

ACLJ noted that its request was temporally limited. The Court did not find the point convincing: “Although [the] temporal limitation is important, it does not change ACLJ’s use of broad language to identify the records sought nor the applicability of that language to all DHS employees.”  Id. 

ACLJ also argued that the Government could not seek dismissal of a FOIA request “without first coordinating with the plaintiff to narrow the request.”  Id. at *8. In reply, Judge McFadden explained that while a Government request to narrow the scope of a FOIA might be “permissible,” or “preferable,” FOIA does not require such an action.  Id.

Newman v. Federal Bureau of Prisons: Judge McFadden Expands His Critique to “Adequacy of Search” Cases

More recently, Judge McFadden has repeated his concern about “mismatched incentives” in the context of a challenge to the adequacy of an agency’s search for documents responsive to a FOIA request.  Newman v. Federal Bureau of Prisons, 2022 WL 1521797 (D.D.C. May 13, 2022).  Dr. John Newman, the FOIA requester and plaintiff, is a professor whose scholarly work largely focuses on the Kennedy Administration and Cold War America.  Id. at *1.  He is not an organizational plaintiff. There is nothing to suggest that he is a repeat FOIA litigant. And he is represented by a lawyer who appears to be a solo practitioner.  Newman made a FOIA request to the Federal Bureau of Prisons and the United States Parole Commission, seeking information about former inmate Manuel Antonio Carlos Veciana Blanche (“Vecinana”).  Id. Newman had become interested in Veciana, a Cuban exile, as part of his scholarly work. In the 1970’s, Veciana was convicted on two felony drug charges and imprisoned.  He was ultimately released in 1981 and his supervision ended in 1984.  Id.

Judge McFadden had little patience for Newman’s claims that the agencies’ searches were inadequate.  In his view the agencies’ affidavits showed a thorough effort to uncover responsive records. Id. at *2. IHe found Newman’s attempt to cast doubt on the completeness or adequacy of that effort insufficient. Id. at *2-*5.

Judge McFadden could have ended the opinion there, but added a biting coda reprising his observations in American Center for Law & Justice v. DHS.  Id. at *5.  He observed: “This case is yet another example of the ‘mismatched incentives’ that FOIA creates.” Id.  Nonprofit FOIA requestees like Newman “do not internalize the costs of a wild goose chase like this one.”  This case has “tasked multiple attorneys at three agencies . . .  and several FOIA specialists in the search for decades-old inmate records that by regulation should have been transferred or destroyed years ago. Unsurprisingly, they were. But the cost of this predictably fruitless search is borne by the agencies, and ultimately, American taxpayers.”  Id.

Observations

Assessing Judge McFadden’s Critique

The trend Judge McFadden identifies suggests that nonprofits find overly-broad requests helpful.  Nevertheless, it is not clear why that should be (unless, as Judge McFadden at times appears to suggest, nonprofit requesters are solely interested in tying up agency resources rather than actually obtaining information).  Broad-gauged requests are more likely to produce delayed responses, which might well defeat the purpose of obtaining records.  American Oversight, The Increase in FOIA Lawsuits Isn’t The Problem, etc. (March 17, 2020)(“Long delays are a death knell for transparency.”). Moreover, voluminous document productions require nonprofits to sift through massive numbers of documents, time not subsidized by the Government.  And it seems a stretch to conclude that nonprofits make their requests extremely broad as a strategic ploy to improve their chances securing a deficient agency’s response that will accord them an opportunity to challenge the agency’s response in court, and seek attorney’s fees. 

More likely, the breadth of requests reflect one or both of two attitudes.  Some requesters may possess a distrust of the Government and a skepticism that the Government will willingly reveal records that may prove embarrassing or that the Government otherwise wishes to keep confidential.[4] Others may harbor a skepticism about the competence of Government records custodians.  And indeed, one aspect of FOIA doctrine may encourage the latter attitude.  Generally, a FOIA search is not judged by the documents produced, but by the reasonableness of the Government’s search plan.[5]  Thus, when the Government fails to find a document that the requester knows to exist, the search may be found adequate nevertheless.[6]  This result may lead to the suspicion that something is amiss with agencies’ searches.[7]

That said, the number of FOIA cases involving assertions that the Government has conducted an inadequate search are particularly high.[8]  In my review of either summaries of FOIA decisions or the decisions themselves over the last 10 years, the number of cases involving claims of an inadequate search is startling.  And there are certainly cases in which the courts find the Government’s search inadequate.

It may be that there will be a reevaluation of the standards for FOIA requests.  Judge Naomi Rao, of the D.C. Circuit, has already suggested a radical revision of the standard that would essentially preclude broad-gauged requests.  See, Bernard W. Bell, “Boiling the Ocean”? Cause of Action Institute v. Department of Justice (June 21. 2021). But even if the Circuit does not adopt such an approach, the D.C. Circuit and the District Court might apply the extant standards more rigorously to require a bit more specificity by requesters.

Might agencies devote greater resources to responding to FOIA requests with funds dedicated solely to funding FOIA operations, or if they could charge fees dedicated to funding their specialists tasked with responding to FOIA requests?  Perhaps.  But agencies might devote no more resources to FOIA responses than they do now, simply because they view the whole effort as contributing little to the agency’s substantive mission, whether it be engaging in regulation, adjudicating, making grants, engaging in enforcement efforts, providing services, or something else.  Thus, agencies might use the fees to reduce the losses amassed on their FOIA operations and devote the funds freed up to more “mission critical” endeavors.

And yes, nonprofits do bring much litigation. But is it unwarranted? To determine that, we need to know nonprofits’ track record in such cases — was their position was vindicated?  As someone who has spent some time following FOIA cases over the last 10 years, litigation by nonprofit organizations seems no less justified than litigation brought by other requesters (and is generally far more well-grounded than that of litigation brought by individuals).[9]

It is not clear why the attorney’s fee provision should provide a greater incentive for nonprofits to litigate than other disappointed FOIA requesters.  All requesters may recover their attorney’s fees if their position is vindicated.  Granted, nonprofits can perhaps more easily retain lawyers and foot the initial cost of legal fees than other requesters because nonprofits are more frequently make multiple FOIA requests.  And it is unlikely that there are a large group of solo practitioners or small practices that maintain a FOIA litigation practice, available to represent non-organizational litigants.

Judge McFadden is understandably concerned about FOIA litigation, given his position as one of the federal judges tasked with addressing the onslaught of FOIA lawsuits.  But FOIA cases in district courts may not accurately mirror the composition of FOIA requests.  Indeed, Judge McFadden’s own theory seems to suggest that might be so; he posits that nonprofits are far more likely to litigate than the average FOIA requester. 

A study by Max Galka tells an entirely different story regarding the percentage of FOIA claims made by various categories of requesters.  Who Uses FOIA and Why? His study categorized requesters as business entities, individuals, law firms, nonprofits, universities, and media entities.  He found that business entities submit 39% of requests. Individuals submit 20.1% of requests.  Law firms make 16.7% of requests. And combining nonprofit organization and university requesters, as Judge McFadden seems to do, only 12% of requests come from “nonprofits.”  Media entities account for another 7.6% of requests.

But if Galka’s statistics and the ones cited by Judge McFadden are both correct, why the discrepancy between their results?  Does this combination of results provide evidence that nonprofit requesters are excessively litigious?  Perhaps FOIA requests from other groups can be, and thus are, more precise. Or perhaps the government less frequently invokes FOIA exemptions in response to such requesters.  More research is required to answer these questions.

Note also, however, even the “national” statistics regarding the number of FOIA suits filed by nonprofits might be driven by the figures in the District for the District of Columbia.  Given the disproportionate share of FOIA litigation commenced in that District, and given that nonprofits file a disproportionate share of litigation there, “national” figures would likely be heavily skewed by the composition of FOIA cases in the District of Columbia.  So there may be a smaller percentage of nonprofit FOIA cases in other judicial districts, where, for instance, first-party requests for information, such as for immigration records or records related to the requester’s criminal conviction, might more likely be filed.[10]

In addition, while ACLJ rushed to Court immediately after the deadline for the agencies’ response had expired, from the cases I have reviewed and recounted over the past 10 years, such an approach is fairly unusual.  Generally, requesters wait for longer and make greater efforts to seek the status of the response to their requests before proceeding to Court. Indeed, requester’s patience increased between 2015 and 2019, with requesters waiting an additional thirty days before commencing litigation. The Increase in FOIA Lawusits Isn’t the Problem, supra. In 2019, on average, plaintiffs waited 177 days without a response before filing suit. The FOIA Project, FOIA Suits Rise Because Agencies Don’t Respond Even As Requesters Wait Longer To File Suit (Dec. 15, 2019).

A Brief Comment on the Merits

As to the specifics of the ACLJ’s request, the Court’s view that the request was excessively broad seems entirely reasonable.  But something has failed here.  At least two of the agencies receiving the ACLJ’s requests, either explicitly or implicitly, offered ACLJ an opportunity to discuss narrowing its request, yet ACLJ declined to take the opportunity.  ACLJ might have offered the narrower interpretation of its request that it ultimately offered in the District Court litigation.  ACLJ might well have decided that the agency’s interpretation of the request was broader than it intended.  Indeed, ACLJ seemed to believe that the agency had a duty to negotiate with it over the scope of the agency request.  However, such a negotiation presumably occurs when the agency advises a requester of the demanding nature of the request and offers an opportunity to discuss how the request should be narrowed.

As to Newman, the standards governing the determination of the adequacy of the agency’s search seem more than sufficient to protect agencies’ interest in limiting searches to those of reasonable scope, and not pouring excessive resources into “pursuing untamed ornathoids without cause.”[11]

Conclusions

Judge McFadden’s critique of FOIA practice and litigation is interesting, and provocative. Expect the community of nonprofit requesters to dispute the critique, or at least the judgment that FOIA excessively incentivizes broad FOIA requests and litigation. In any event, we have surely not heard the last of Judge McFadden’s critique, either from Judge McFadden himself, his judicial colleagues on the D.C. District and D.C. Circuit benches, or others.

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[1] The quoted reference is from 5 U.S.C. § 552(a)(3)(A)(“each agency, upon any request for records which (i) reasonably describes such records . . ., shall make the records promptly available to any person).

[2] Slip op. at *3 (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 362–65 (1976), and NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).

[3] See, Shapiro v. CIA, 170 F. Supp. 3d 147, 155 (D.D.C. 2016)(“[t]here is a difference in kind between requests for documents that ‘mention’ or ‘reference’ a specified person or topic and those seeking records ‘pertaining to,’ ‘relating to,’ or ‘concerning’ the same.”); Cable News Network v. FBI, 271 F. Supp. 3d 108, 112 (D.D.C. 2017) (dismissing as overbroad a request for records that “relate in any way to” certain subject areas); Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002)(finding request for documents “that refer or relate in any way to” subject matter did not reasonably describe records sought).

[4] The Department of Interior’s Awareness Review Process, in which political appointees reviewed responses to FOIA requests prior to release of documents to requesters, is the type of program that fuels such suspicions. Office of Inspector General, Department of the Interior, Lack of Tracking and Unclear Guidance Identified in the U.S. Department of the Interior’s Awareness Review Process for Freedom of Information Act Requests (Feb. 25, 2022).

[5] As a general rule, courts require agencies to conduct a search that is “reasonably calculated to uncover all relevant documents.”  Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see generally, Office of Information Policy, Department of Justice Guide to the Freedom of Information Act, Procedural Requirements at 42 (“DOJ Guide”)(posted Aug. 20, 2021).  Indeed, “‘the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'”  Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); DOJ Guide, supra, at 43.  The D.C. Circuit has stressed that “adequacy – not perfection – is the standard that FOIA sets,” DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015).

[6] Courts generally find that an agency’s inability to locate every single responsive record does not undermine an otherwise reasonable search, DOJ Guide, supra, at 53; see e.g., Lahr v. NTSB, 569 F.3d 964, 988 (9th Cir. 2009); Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).  In Iturralde, the D.C. Circuit explained: “it is long settled that the failure of an agency to turn up one specific document in its search does not alone render a search inadequate . . . . After all, particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them.”

[7] Two additional examples provide an illustration of FOIA requesters’ justified suspicion of Government incompetence. In Sykes v. Department of the Navy, 896 F.3d 1227 (11th Cir. 2018), the Navy prodcued different sets of document in response to identical search requests by the same requester.  In Rubman v. U.S. Citizenship & Immigration Services, 800 F.3d 381 (7th Cir. 2015), the agency responded to a FOIA request by providing statistics in lieu of providing records, and the statistics proved inaccurate.

[8] Reviewing the summaries of the 62 FOIA decisions this year, through May 18, reported on the FOIA Advisor website, 16 have involved adequacy of search challenges.

[9] Might the increased percentage of nonprofit requests reflect a reduction, or at least stunted growth, in FOIA requests by media entities?  Much of the news media has suffered economic distress, making engaging in extensive litigation less affordable.  Moreover, delays in obtaining information may be particularly problematic for journalists working within constraining time deadlines.   See Q&A with a frequent FOIA requester (Reporters Committee for Freedom of the Press (reprinted from The News Media & The Law 26 (2006)). 

But it turns out that reporters have driven a recent growth in FOIA litigation. The FOIA Project, News Reporters Drive Growth in Media FOIA Litigation (Jan. 9, 2017)(reporting that in the prior four years “the number of FOIA cases brought by reporters and news organization has substantially increased,” “exactly the opposite of what many commentators have suggested is now occurring”).  

[10] Indeed, much of the backlog at DHS is probably due to requests for records by immigration attorneys who need to use FOIA to obtain their clients immigration files in order to effectively advocate for their client’s interests. See, Nightingale v. U.S. Citizenship & Immigration Services, 507 F. Supp. 3d 1193 (N.D. Cal. 2020)(addressing the pattern and practice of untimely response to immigration lawyers’ FOIA requests for their clients’ A-files); Alexander Shur, FOIA Victory Bolsters Calls For Real Immigration Reform, BORDERLESS MAGAZINE (June 1, 2021)(“[w]ithout their A-Files, noncitizens and naturalized citizens are less equipped or simply unable to confirm their legal status, apply for immigration benefits, defend against potential removal, adjust their status and more”). Recently, the Attorney General announced plans to make records of an individual’s immigration court proceedings subject to proactive disclosure. Office of the Attorney General, Freedom of Information Act Guidelines, §C, ¶1 (March 15, 2022)(“the Justice Department’s Executive Office for Immigration Review has long required individuals to file FOIA requests to obtain official copies of their own records of immigration court proceedings. We are now changing that policy”).

[11] “I could be pursuing an untamed ornithoid without cause.” – Lt. Cmdr. Data (describing a wild goose chase), Star Trek: The Next Generation, Data’s Day.  Sourcing for the quote is provided here.