What do investigative journalists, academics, and hedge fund investors all have in common? They all are increasingly turning to the Freedom of Information Act (FOIA) to obtain information squirreled away in records held by federal executive branch agencies. Public, but not generally accessed, records can give competitors information advantages in their market niches, whether that market is book publishing or investment in industry sectors closely regulated by the federal government. Below we briefly describe FOIA’s scope and what services GLP can provide to you.
FOIA requires federal executive agencies, subject to limited exemptions and exceptions, to turn over copies of agency records that a researcher has requested under the law. FOIA does not cover congressional or federal judicial records, unless those happen to come into the possession of the executive branch. They also do not cover presidential records, which the Presidential Records Act governs. But for records covered by FOIA, unless an agency can properly claim a legal ground for withholding the requested record, the agencies must produce a copy of the record and do so within 20 business days. Agency failure to comply gives the requester a right to sue in federal court to compel the agency to produce the record. If records contain some information that is properly withheld and some information that is required to be disclosed, FOIA generally requires the agency to redact only that portion that is justified under one of the exemptions. The rest gets released.
Agencies, however, often are backlogged with requests and regularly violate the legally mandated timetable. Often a lawsuit can inexpensively be filed to prompt the agency to comply with its legal obligations.
Other times federal agencies display their bad bureaucratic habit of making overbroad claims of governmental secrecy. In those cases, a lawsuit is necessary to push back and hold the agencies to account in front of a federal judge with authority to inspect the contested agency records in judicial chambers.
Of course, there are occasionally good reasons for withholding certain records: nuclear launch codes are properly withheld on national security grounds; attorney client privileged material appropriately safeguards confidential legal opinions and unwarranted invasions of third persons’ personal privacy generally should be avoided. It, however, often remains that government loves secrecy for secrecy’s sake, or to hide official malfeasance, inefficiency, or neglect of duty.
At GLP we have developed a specialty in fighting government secrecy. Our attorneys have litigated in federal courts across the country for many kinds of records. Our lawyers successfully sued the Central Intelligence Agency for the final volume of its secret internal history of the failed 1961 Bay of Pigs operation. One of our lawyers beat the Federal Bureau of Investigation’s efforts to hide decades old materials concerning President Lyndon Johnson’s abuses of power. And our team has assisted journalists with contemporary research, including requests for records concerning federal criminal investigations of corrupt local government employees. Our lawyers equally assist businesses attempting to understand the competitive landscape confronted by heavily regulated industries by obtaining market information that is public, even if not easily otherwise accessed.
Nothing in life is free, including legal services, but Congress does throw FOIA requesters and their legal teams a bone. Because the public derives a benefit from disclosure of certain types of records, in some circumstances, triumphant FOIA requesters can receive an attorney fee award. Depending on the nature of records that our clients seek and their particular industry, GLP might be able to offer clients low-fixed fee or mixed-fee options for paying for their legal counsel, based on the likely recovery of a partial fee award.
Tuan Samahon is a Professor of Law at Villanova University Charles Widger School of Law. He teaches and writes in the areas of federal courts and constitutional law. His articles have been published in the Stanford Law Review, Ohio State Law Journal, Hastings Law Journal, William & Mary Bill of Rights Journal, University of Chicago Legal Forum, Denver Law Review, and Villanova Law Review, among others.