Freedom of Information Act: Litigation Costs For Justice and Agencies Could Not Be Fully Determined
Published: 2016-09-08T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: FOIA requires federal agencies to provide the public with access to government information and each year, agencies release information. Nevertheless, many FOIA requests are denied or not responded to in a timely manner. The act allows requesters to litigate if the agency does not respond to a request within the statutory time frames. Over the last decade, Justice reported 3,350 FOIA lawsuits filed against agencies, with a 57 percent increase in lawsuits filed since 2006 (see figure).
GAO was asked to determine FOIA litigation-related costs incurred by federal agencies for lawsuits in which the plaintiffs substantially prevailed. To do so, GAO reviewed Justice's data on FOIA-related lawsuits with a decision rendered from 2009 through 2014, and identified 112 lawsuits across 28 federal agencies where the plaintiff substantially prevailed. GAO reviewed cost data from Justice and the selected agencies, and interviewed agency officials to discuss the availability and reliability of these data.
section_title: What GAO Found
paragraphs: Of the 1,672 Freedom of Information Act (FOIA) lawsuits with a decision rendered between 2009 and 2014, GAO identified 112 lawsuits where the plaintiff substantially prevailed. Litigation-related costs for these 112 lawsuits could not be fully determined. Costs associated with such lawsuits are comprised of (1) the Department of Justice's (Justice) costs for defending the lawsuits on behalf of agencies, (2) the agencies' respective costs for the lawsuits, and (3) any attorneys' fees and costs as assessed by a court or based on settlement agreements awarded to the plaintiffs' attorneys.
Of the 112 lawsuits, Justice provided information on its costs for defending 8 lawsuits totaling about $97,000. Justice officials stated that the department does not specifically track costs for lawsuits in which the plaintiffs substantially prevailed and that its attorneys are not required to track such costs for individual lawsuits. Regarding individual agencies, 17 of the 28 in GAO's study had a system or process in place that enabled them to provide cost information on 57 of the 112 selected lawsuits. According to this information, the agencies incurred approximately $1.3 million in FOIA litigation-related costs for these lawsuits during fiscal years 2009 through 2014. The remaining agencies did not have a mechanism in place to track FOIA litigation-related costs where the plaintiffs prevailed. These agencies said costs were not tracked because Justice's guidance does not require agencies to collect and report costs related to specific lawsuits, or if the plaintiff prevailed as a result of a lawsuit.
As required by FOIA, Justice has reported annually on the results of all lawsuits, including any awards of attorneys' fees and costs to the plaintiffs. However, for 11 of the 112 selected lawsuits, Justice reported an amount of attorneys' fees and costs awarded that differed from the amounts reported by the defending agencies. According to Justice, the differences in the award of attorney's fees and costs were due to the appeals process and settlement agreements between the respective agencies and the plaintiffs.
Although requiring Justice and agencies to report actual cost information could lead to better transparency regarding federal operations, costs would be associated with such reporting. Considering these costs, as well as potential benefits, could help Congress in determining whether such a requirement would be cost-effective for enhancing oversight of FOIA litigation-related operations.
section_title: What GAO Recommends
paragraphs: If Congress determines that transparency in the reporting of FOIA litigation costs outweighs increased costs for systems and processes to be developed, then it could consider requiring Justice to provide a cost estimate for collecting and reporting information on costs incurred when defending lawsuits in which the plaintiffs prevailed. In commenting on a draft of this report, Justice stated that it appreciated GAO's recognition of the need to balance the cost and benefit of additional reporting to achieve good FOIA administration.

section_title: Letter
paragraphs: The Freedom of Information Act (FOIA) requires federal agencies to  provide the public with access to government information on the basis of  the principles of openness and accountability in government.  Accordingly, federal agencies release information to requesters that  contribute to the understanding of government actions, including the  disclosure of waste, fraud, and abuse.
Nevertheless, even as agencies respond to hundreds of thousands of  FOIA requests each year, many requests (or portions thereof) may be  denied or not responded to in a timely manner. For this reason, the act  allows requesters to challenge an agency’s final decision in federal court  through a lawsuit if the agency does not respond to a request for  information within the statutory time frames or if the requesters believe  they are entitled to information that is being withheld by the agency.
In addition, the act states that the court may assess against the  government reasonable attorneys’ fees and other litigation costs incurred  in a FOIA lawsuit if the requester has obtained relief through either a  judicial order, or an enforceable written agreement or consent decree; or  a voluntary or unilateral change in position by the agency, if the plaintiff’s  claim is not insubstantial. The Department of Justice (Justice) reported  that, in fiscal year 2015, federal agencies received 713,168 FOIA  requests. The department further reported that 483 FOIA-related lawsuits  were filed against federal agencies during calendar year 2015.
This report responds to your request that we conduct an audit of the  amount of money spent by the federal government as a result of FOIA  lawsuits. Our specific objective was to determine the FOIA litigation- related costs incurred by federal agencies for lawsuits in which the  plaintiff substantially prevailed.
To address the objective, we obtained and reviewed Justice’s Litigation  and Compliance Reports, covering the time period from January 2009  through December 2014, to identify FOIA lawsuits where decisions were  rendered. Our review led to the identification of 1,672 lawsuits for that  time period. Of this total number of lawsuits, we identified those lawsuits  in which information indicated that the courts or a stipulation had awarded  attorneys’ fees and costs to the plaintiffs. (For this study, we established  that if a plaintiff was awarded attorneys’ fees and costs, then the plaintiff  had substantially prevailed in the lawsuit).This resulted in our  identification of 112 lawsuits across 28 federal agencies where the courts  had awarded attorneys’ fees and costs.
We then developed and administered a data collection instrument to  obtain information on the 28 agencies’ respective litigation costs for the  identified lawsuits and the attorneys’ fees and costs paid to the plaintiffs.  We gathered information on the process used by each agency to collect  and report information on the lawsuits to determine the reliability of the  data provided in the responses. We administered the data collection  instrument in February 2016 and received responses from all 28  agencies.
We used the information that agencies provided in their responses to the  data collection instrument to help determine the costs incurred for the  lawsuits. Specifically, for each of 17 agencies that reported having an  established process for collecting and reporting lawsuit information (and  that we found to be reliable), we calculated litigation costs by multiplying  the agency’s reported time spent on each lawsuit by the reported hourly  salary rates for these staff, and then added in any additional overhead  costs reported by the agency.
We also compared the amounts of attorneys’ fees and costs reported by  agencies to the amounts of attorneys’ fees and costs assessed by courts,  as reported by Justice, in order to identify any discrepancies between  these amounts. We supplemented our analysis of the information with  interviews of relevant FOIA officials in the 28 agencies involved with the  selected lawsuits.
Further, to determine the costs incurred by Justice for litigating the 112  selected lawsuits, we obtained available information on the department’s  process for tracking any time spent by staff on lawsuits and reviewed  information obtained from the department’s various case management  systems. In addition, we interviewed relevant Justice officials, including  attorneys and information technology specialists, to better understand  how the department utilizes its case management systems to manage  and track lawsuit information.
We conducted this performance audit from September 2015 through  September 2016 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives. A more detailed  discussion of our objective, scope, and methodology is provided in  appendix I.
subsections: section_title: Background
paragraphs: FOIA establishes a legal right of access to government information on the  basis of the principles of openness and accountability in government.  Before its enactment in 1966, an individual seeking access to federal  records faced the burden of establishing a “need to know” before being  granted the right to examine a federal record. FOIA established a “right to  know” standard, under which an organization or person could receive  access to information held by a federal agency without demonstrating a  need or reason. The “right to know” standard shifted the burden of proof  from the individual to a government agency and required the agency to  provide proper justification when denying a request for access to a  record.
Any person, defined broadly to include attorneys filing on behalf of an  individual, corporations, and organizations, can file a FOIA request. For  example, an attorney can request labor-related work compensation files  on behalf of his or her client, and a commercial requester, such as a data  broker that files a request on behalf of another person, may request a  copy of a government contract. In response, an agency is required to  provide the relevant record(s) in any readily producible form or format  specified by the requester unless the record falls within a permitted  exemption. Nine specific exemptions can be applied to withhold, for  example, classified, confidential commercial, privileged, privacy, and  several types of law enforcement information. (See appendix II for an  explanation of the nine exemptions.)
Since its enactment 50 years ago, FOIA has been amended to increase  openness and access to government information. As the overseer of  agencies’ FOIA implementation, in October and November 2008, Justice  issued guidance to assist federal agencies in implementing the FOIA  amendments of the 2007 OPEN Government Act. In September 2013,  Justice incorporated in the procedural requirements chapter of the  Department of Justice Guide to the Freedom of Information Act  procedures for agencies to follow when responding to FOIA requests.  Specifically, the guidance discusses how requests are to be processed— from the point of determining whether an entity in receipt of a request is  subject to FOIA, to responding to the review of an agency’s decision  regarding a request on an administrative appeal.
Agencies are generally required to make a determination on a FOIA  request within 20 working days of receiving a request. A request may be  received in writing or by electronic means. Once received, the request  goes through multiple phases, which include assigning a tracking number,  searching for responsive records, processing records, and releasing  records.
FOIA allows a requester to challenge an agency’s final decision on a  request through an administrative appeal or a lawsuit. Specifically, a  requester has the right to file an administrative appeal if he or she  disagrees with the agency’s decision on their request. Agencies generally  have 20 working days to respond to requesters regarding administrative  appeals. A requester should generally exhaust their administrative  remedies, such as filing an administrative appeal, before a lawsuit can be  filed. If a request is denied on appeal, the requester then has 6 years to  file a lawsuit pertaining to the request. Further, if a requester  substantially prevails in a FOIA lawsuit, the court may assess against the  government reasonable attorneys’ fees and litigation costs.
Figure 1 provides a simplified depiction of the federal government’s FOIA  administrative appeal and litigation process.
subsections: section_title: Justice Oversees Federal Agencies’ Implementation of FOIA Requirements and Defends Agencies When Lawsuits Arise
paragraphs: FOIA assigns Justice the responsibility to develop guidance for federal  agencies on the implementation of the law and to oversee the agencies’  compliance with FOIA requirements. Justice also provides training to  agencies on all aspects of FOIA and prepares annual summary reports  on agencies’ FOIA processing and litigation activities. These activities are  carried out by the department’s Office of Information Policy, as follows:
Develops guidance. The office develops guidance and best practices  documents to assist federal agencies in complying with FOIA  requirements. For example, it has developed guidance for ensuring  timely determinations on requests; expediting the processing of  requests; and reducing backlogs. It also has developed guidance to  inform agencies on what information should be contained in their  Annual FOIA Reports, to include information on agencies’ overall  processing and litigation costs. In addition to the guidance, the office  has documented best practices for improving transparency.
Oversees agency compliance. To oversee FOIA operations, the  office collects information from agencies, including through Annual  FOIA Reports and Chief FOIA Officer Reports. These reports include  information such as the number of FOIA requests received and  processed in a fiscal year, the disposition of requests processed, and  total costs associated with processing and litigating requests.
Provides training. The office conducts training sessions on a variety  of FOIA-related topics. For example, it conducts an annual training  class that provides a basic overview of the act. It also offers a seminar  for attorneys that handle FOIA litigation, which includes lectures and  instruction on, for example, a successful litigation strategy. Hands-on  courses focused on the procedural requirements involved in  processing a request from start to finish also are offered.
Prepares annual reports. As required by FOIA, the office prepares  an annual report—Justice’s Litigation and Compliance Report. This  report, which is submitted to Congress, describes the department’s  efforts during the year to encourage compliance with the act. It also  provides a listing of all FOIA lawsuits filed or decided in that year,  along with information on the exemptions involved in each case, the  disposition of each case, and any court-assessed costs, fees, and  penalties.
In addition to the aforementioned responsibilities, Justice is responsible  for representing federal agencies if they are sued for an action or inaction  under FOIA. The department’s attorneys and support staff are assigned  to work on each lawsuit. (The agency subject to the lawsuit also plays a  supporting role.) Justice’s Civil Division and the 93 United States  Attorneys’ Offices handle the defense of the majority of the lawsuits on  behalf of other federal agencies. According to the department, the United  States Attorneys’ Offices handle about 70 percent of the lawsuits, while  the Civil Division handles most of the remaining lawsuits brought against  agencies. A small percentage of FOIA lawsuits are handled by other  components of Justice, such as the Tax Division. However, if a lawsuit  involves multiple agency defendants, a United States Attorneys’ Office  may be primarily responsible for the lawsuit.
Once a case is assigned to a specific division within Justice, the attorneys  use various case management systems to track the lifecycle of the  lawsuit (e.g., from receipt of complaint to final disposition). Specifically,  Justice identified three case management systems that are used by the  United States Attorneys’ Offices and the Civil Division:
The United States Attorneys’ Offices primarily use two systems to  track lawsuits—the Legal Information Office Network System (LIONS)  and the United States Attorneys’ Resource Summary Reporting  System (USA-5). LIONS allows individual Attorneys’ Offices to  maintain, track, and report information on pending employee  workloads and lawsuit assignments. This system contains data fields  for limited, pre-specified case-specific information, such as the  amounts of relief requested, estimated, or granted. FOIA lawsuits are  specifically identified through a “cause of action” field in LIONS.  However, according to Justice officials in the Executive Office for  United States Attorneys, FOIA lawsuits can also be included under  other categories in this system, such as categories for lawsuits related  to the Privacy Act or miscellaneous claims against the government.
The United States Attorneys’ Offices also use USA-5 to track lawsuits.  Within this system, attorneys do not track the amount of time spent on  individual lawsuits, but instead, the amount of time spent on particular  program categories. FOIA litigation lawsuits are generally included in  the “Program Litigation” category, which is a category that includes  programs others than FOIA, such as administrative matters, veterans’  re-employment rights, and the Privacy Act.
Justice’s Civil Division uses its automated case management system  (CASES) to track lawsuit-related information. According to the  department, this system is primarily used for assigning lawsuits to a  particular section within the Civil Division; routing case-related mail;  identifying the attorneys handling a particular case; and generating  statistical, management, and budget information, such as the amount  of time spent by an attorney on a particular lawsuit. The system may  also include information on the amount of attorneys’ fees and costs  paid in a lawsuit, if applicable.
section_title: Justice Reports Annually on FOIA Litigation Lawsuits
paragraphs: As previously mentioned, Justice annually publishes a litigation and  compliance report that is required by FOIA. This report provides  information on all of the FOIA lawsuits filed in federal district court each  year, as derived directly from the federal courts’ docketing systems  through the Public Access to Court Electronic Records (PACER)  system. Justice’s litigation and compliance reports indicated that 3,350  FOIA lawsuits were filed across the federal government between 2006  and 2015, as shown in table 1.
The litigation and compliance reports also identify the FOIA lawsuits for  which a decision was rendered by federal courts each year. According to  the department, the report data are compiled through a summary of court  decisions issued by the Office of Information Policy on a weekly basis and  a survey of PACER data. The reports provide a description of the  disposition in each FOIA case, any claimed exemptions, and any costs,  fees, or penalties assessed by the courts.
section_title: Agencies’ Costs Associated with FOIA Lawsuits Where the Plaintiffs Prevailed Could Not Be Fully Determined
paragraphs: For the 112 selected FOIA lawsuits where the plaintiffs had prevailed,  litigation-related costs could not be fully determined. Litigation-related  costs associated with such lawsuits are comprised of (1) Justice’s costs  for defending the lawsuits on behalf of agencies, (2) the agencies’  respective costs for the lawsuits, and (3) any attorneys’ fees and costs as  assessed by a court or based on settlement agreements awarded to  plaintiffs. However, Justice does not collect and track all of the costs that  its attorneys and staff incur for individual lawsuits in which the plaintiffs  prevailed. Moreover, agencies involved in the selected lawsuits did not  have mechanisms in place to track FOIA litigation costs where the plaintiff  prevailed, thus hindering their reporting of these costs for 55 of the  selected lawsuits. Justice’s and the agencies’ FOIA officials stated that  they had not taken steps to track their expenses for individual lawsuits  where the plaintiffs prevailed because there is no statutory requirement  for them to do so. Further, while Justice’s annual Litigation and  Compliance reports contained information on attorneys’ fees and costs  assessed by the courts as required by FOIA, the information was not  comprehensive because it did not reflect attorneys’ fees and costs  awarded to plaintiffs in settlement agreements or changes in award  amounts due to the appeals process.
subsections: section_title: Justice Does Not Collect Litigation Cost Data for Individual Lawsuits
paragraphs: While Justice defends FOIA lawsuits on behalf of the federal government,  it does not track all costs that the department incurs in defending  individual lawsuits in which the plaintiffs prevailed. As noted previously,  Justice relies on its three case management systems to manage the  lawsuits. However, officials in the United States Attorneys’ Offices stated  that their case management systems—LIONS and USA-5—do not track  any expenses related to FOIA lawsuits. According to the officials, these  systems were not designed to track costs that the department incurs in  defending individual lawsuits. Furthermore, these systems are not used  by the department to specifically track FOIA lawsuits in which the plaintiffs  prevailed.
Officials in the Civil Division stated that their case management system,  CASES, includes data fields that can be used to track time spent on each  FOIA lawsuit and the award of any attorneys’ fees and costs paid to the  plaintiffs. However, according to the officials, the department does not  require its staff to enter such data into these fields.
Accordingly, of the 112 selected lawsuits, Justice provided cost  information, totaling about $97,000 for 8 lawsuits in which the plaintiffs  substantially prevailed. Officials in the Office of Information Policy, the  United States Attorneys Offices, and the Civil Division told us that the  department did not provide cost information for the other 104 lawsuits  because it could not easily or accurately calculate hours and the value of  the time spent by the department’s attorney or other staff that worked on  the lawsuits. They stated that the department did not have tracking  capabilities that would allow staff to easily produce the information without  significant resources. For example, they explained that providing  information on all 112 lawsuits would be a time-consuming task that  would require staff to gather piecemeal data from each of the 93 United  States Attorneys’ Offices throughout the country.
Further, the officials acknowledged that their systems do not contain  comprehensive cost information on individual FOIA lawsuits that would  enable them to easily or accurately calculate the total time spent by their  attorneys and other staff on the lawsuits. They stated that there is no  statutory requirement for them to have such information.
In the absence of a requirement for Justice to collect and track  comprehensive information on its expenses incurred for individual FOIA  lawsuits where the plaintiffs prevailed, the ability to reliably ascertain the  department’s costs associated with such lawsuits would be difficult.
section_title: Actual Costs Incurred for FOIA Lawsuits Are Not Tracked by All Agencies
paragraphs: Federal agencies have received guidance from Justice that asks them to  provide their total litigation-related costs to the department as part of the  annual FOIA reporting process. The guidance states that the agencies’  total litigation-related costs are to include the salaries of personnel  involved in the litigation, litigation overhead expenses, and any other  FOIA litigation-related costs. In addition, it states that an agency’s annual  FOIA budget may be used as a resource for determining and reporting  the FOIA litigation expenses.
In response to the guidance, the agencies involved with the selected  lawsuits had provided litigation-related cost information to Justice as part  of their annual reporting on FOIA. For fiscal years 2009 through 2014,  these agencies collectively reported costs totaling $144 million for all of  the FOIA lawsuits that they defended. However, with respect to cost  data at the individual lawsuit level, 17 of the 28 agencies provided cost  information in response to our data collection instrument for 57 of the 112  lawsuits where the plaintiff substantially prevailed. According to this  information, the agencies incurred approximately $1.3 million in FOIA  litigation-related costs for these lawsuits during fiscal years 2009 through  2014. For example, the Department of Energy reported $76,440 in  litigation-related costs for its 2 lawsuits, while the Social Security  Administration reported $7,284 in litigation-related costs for its 3 lawsuits.  (Appendix III provides descriptive examples of the 112 selected lawsuits  and appendix IV identifies any costs reported by the 28 agencies for  these lawsuits.)
As part of their responses to our data collection instrument, each of these  17 agencies told us they had a system or process in place for tracking  FOIA litigation-related cost information. The agencies described various  systems or processes that they used. For example, the Internal Revenue  Service stated that it tracked FOIA litigation cost data in a database that it  used to collect information related to all of its lawsuits. Similarly, the  Federal Election Commission provided cost data and noted that staff  members in its Office of General Counsel were required to file monthly  time reports in an electronic case management system that showed the  lawsuits on which they had worked. Further, the Nuclear Regulatory  Commission stated that its staff reported the hours worked on lawsuits  and had time codes for the lawsuit in our review.
Other agencies also reported that they were able to provide cost data by  going back to specific lawsuit case files or time and attendance systems  to determine the information. For example, Social Security Administration  officials stated that agency’s attorneys input their time spent on individual  lawsuits into a docket management information system. Additionally, the  General Services Administration said it based its data on a review of case  notes and e-mails from the attorneys that worked on specific cases.
However, for the remaining 55 selected lawsuits where the plaintiff  substantially prevailed, litigation-related costs were not provided by the  responsible agencies. Officials representing these agencies generally  stated that they did not have mechanisms in place to track FOIA litigation- related costs where the plaintiffs prevailed. Moreover, they pointed to the  fact that Justice’s guidance does not require them to collect and report  this information.
For example, an Associate Deputy General Counsel at the Department of  Defense noted that the department’s attorneys did not track their work on  any particular FOIA cases and that there were no other offices within the  department that tracked the hours worked by their staff on individual  cases. Similarly, FOIA officials at the Departments of Transportation,  Treasury, Homeland Security, Agriculture, State, Justice, Health and  Human Services, Education, and Commerce; the Environmental  Protection Agency; the Office of Personnel Management; the Office of  Management and Budget; the Central Intelligence Agency; the Consumer  Financial Protection Bureau; and the Federal Housing Finance Agency  stated in their responses that they could not provide information on  specific FOIA lawsuits because the data were not being tracked or  because staff that had worked on the lawsuits were no longer employed  at these agencies and, thus, were not available to reconstruct the data.
Requiring agencies to collect information on actual costs incurred in  defending FOIA lawsuits, including those in which the plaintiffs prevailed,  could enhance transparency in federal government operations. However,  such a requirement would likely necessitate costly modifications to  agencies’ information systems and business processes.
section_title: Justice’s Annual Compliance Reports Include Required Information, but Lack Complete Information on Appeals and Settlement Agreements
paragraphs: FOIA requires Justice to report on attorneys’ costs and fees assessed by  the courts and associated with lawsuits for which decisions have been  rendered by the end of a calendar year. Specifically, Justice is to annually  report to Congress a listing of the number of FOIA cases handled by each  agency; the exemption(s) involved in each case; the disposition of each  case; and the cost, fees, and penalties assessed and awarded to plaintiffs  by the courts.
To meet this requirement, Justice has posted annually on its website  using information derived from the federal courts’ docketing system—the  Public Access to Court Electronic Records— its Litigation and  Compliance reports. Specifically, the Litigation and Compliance reports  include information for lawsuits with decisions rendered by the end of the  calendar year, the disposition of each lawsuit, the exemptions involved,  and fees awarded by the courts, if any. These reports also include any  decisions made by the appellate courts and, to the extent available on  PACER, any stipulations of dismissals filed by the parties due to  settlement.
For fiscal years 2009 through 2014, the department reported that the  courts had awarded $587,438 in attorneys’ fees and costs to the  attorneys representing the plaintiffs in 10 of the 112 selected lawsuits.  However, for these 10 lawsuits, Justice’s reported cost information  differed from the cost information provided by agencies for 8 lawsuits.  Specifically, the agencies reported that they had paid higher award  amounts than what were reported by Justice. Conversely, for 1 lawsuit,  the amount of attorneys’ fees and costs that the agency reported paying  was less than what was reported by Justice. For the other lawsuit, the  appeal process was ongoing and no attorneys’ fees and costs had been  paid as of June 2016. The differences in Justice’s and the agencies’  reporting on these lawsuits, which amounted to $58,576 (more than what  agencies said had been paid), are shown in table 2.
According to the department, the differences in the awards of attorneys’  fees and costs are due to the appeals process and the settlement  agreements between the respective agencies and the plaintiffs. For  example, during the appeals process, courts may change their rulings  and either increase or decrease the awards of attorneys’ fees and costs.  Further, when a plaintiff and an agency enter into a settlement  agreement, the court documents may not reflect the agreed upon  amounts to be awarded. According to officials in Justice’s Office of  Information Policy, the inclusion of costs resulting from settlement  agreements and appeals is not required to be included in the  department’s reports to Congress.
Since Justice is not required to track and report on appeals, which can  impact the total amount awarded to a plaintiff, the actual costs associated  with the awards of attorneys’ fees and costs may not be known. Requiring  Justice to include in its Litigation and Compliance reports the awards of  attorneys’ fees and costs resulting from appeals and settlement  agreements could keep Congress and the public more informed of the  results and costs associated with FOIA lawsuits. However, it should be  noted that such a requirement could be costly to Justice. Thus, a  consideration of both the costs and benefits of such a requirement would  assist Congress in determining whether a requirement to include  information on appeals and settlement agreements would lead to an  efficient use of government resources.
section_title: Conclusions
paragraphs: Each year, federal agencies are subject to hundreds of lawsuits from  FOIA requesters whose requests were denied or not responded to in a  timely manner. Agencies subject to the lawsuits and Justice incur costs to  defend against these lawsuits and may, in lawsuits where the plaintiff  prevailed, be ordered to pay the plaintiff’s attorneys’ fees and costs.  However, the costs associated with FOIA lawsuits where the plaintiff  prevailed cannot be fully determined because not all federal agencies,  including Justice, track their costs at the individual lawsuit level.  Moreover, the data regarding attorneys’ fees and costs reported by  Justice do not capture changes in award as a result of appeals or  settlement agreements. Although requiring Justice and agencies to report  actual cost information on lawsuits, and tracking the appeals process and  settlement agreements between agencies and plaintiffs could lead to  better transparency and openness in federal operations, there would be  costs associated with doing so. Considering these costs relative to the  potential benefits could help in determining whether establishing such a  requirement would be an effective means of enhancing FOIA litigation- related operations.
section_title: Matters for Congressional Consideration
paragraphs: To provide greater transparency in the reporting of FOIA litigation costs,  Congress could consider requiring Justice to provide a cost estimate for  collecting and reporting information on costs incurred when defending  lawsuits in which the plaintiffs prevailed.
Further, Congress could consider amending the act to require Justice to  reflect in its Litigation and Compliance reports, changes in the award of  attorneys’ fees and costs resulting from the appeals process and  settlement agreements between agencies and plaintiffs, if deemed to be  cost-effective.
section_title: Agency Comments and Our Evaluation
paragraphs: We received written comments on a draft of this report from Justice. In its  comments (reprinted in appendix V), Justice stated that, in the face of  ever-increasing numbers of FOIA requests, the department appreciated  our recognition of the need to balance the cost of additional reporting  against the benefit it could provide to achieve the goal of good FOIA  administration. Further, the department noted a number of steps that it  had taken to provide new information on agency FOIA administration,  both at the administrative stage, which comprises the majority of FOIA  activity, and for requests that reach litigation. In addition, Justice provided  technical comments, which we incorporated, as appropriate.
Beyond Justice, we sought comments on the draft report from the 27  other agencies included in our study. Of these, 20 agencies told us they  had no comments on the draft report. The 7 remaining agencies—the  Departments of Commerce, Interior, and Transportation; the Nuclear  Regulatory Commission, the Social Security Administration, the Federal  Election Commission, and the U.S. Railroad Retirement Board—provided  technical comments. We also incorporated these comments, as  appropriate.
We will send copies of this report to other interested congressional  committees, the Attorney General, the Secretaries of Agriculture,  Commerce, Defense, Education, Energy, Health and Human Services,  Homeland Security, Housing and Urban Development, the Interior, Labor,  State, Transportation, the Treasury, and Veterans Affairs; the  administrators of the Environmental Protection Agency, General Services  Administration; the commissioners of the Nuclear Regulatory Commission  and the Social Security Administration; the directors of the Office of  Personnel Management, Office of Management and Budget, Federal  Housing Finance Agency, and the Consumer Financial Protection  Bureau; and the Chairman of the Railroad Retirement Board. In addition,  this report will be available at no charge on the GAO website at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-6304 or melvin@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last  page of this report. GAO staff who made key contributions to this report  are listed in appendix VI.
section_title: Appendix I: Objective, Scope, and Methodology
paragraphs: Our objective was to determine the Freedom of Information Act (FOIA)  litigation-related costs incurred by federal agencies for lawsuits in which  the plaintiff substantially prevailed.
To address the objective, we obtained and reviewed the Department of  Justice’s (Justice) Litigation and Compliance Reports, covering the time  period from January 2009 through December 2014, to identify FOIA  lawsuits where decisions were rendered. Our review led to the  identification of 1,672 lawsuits for that time period. Of this total number of  lawsuits, we identified those lawsuits in which information indicated that  the courts or a stipulation had awarded attorneys’ fees and costs to the  plaintiffs. (For this study, we established that if a plaintiff was awarded  attorneys’ fees and costs, then the plaintiff had substantially prevailed in  the lawsuit). We did not include lawsuits where the plaintiffs may have  substantially prevailed in the lawsuits but were not awarded attorneys’  fees and costs. This resulted in our selection of 112 lawsuits across 28  federal agencies where the courts had awarded attorneys’ fees and costs.
For the 28 agencies, we developed and administered a data collection  instrument to obtain information on the agencies’ respective litigation  costs for the identified lawsuits and the attorneys’ fees and costs paid to  the plaintiffs. We requested the following for each lawsuit: (1) the number  of hours spent by each employee (e.g., attorney, administrative assistant,  and FOIA staff) that worked on the lawsuit; (2) the annual salary for each  employee that worked on the lawsuit; (3) an explanation as to whether the  lawsuit was or was not exclusively related to FOIA; (4) the amount of  litigation overhead and any other FOIA litigation-related expenses  associated with the lawsuit; and (5) the total amount of judgment paid,  including date paid, if applicable. We administered the data collection  instrument in February 2016 and received responses from all 28  agencies.
To test the accuracy and completeness of data provided to us by  agencies we performed the following procedures: compared cost data  against available court records; interviewed FOIA staff and legal counsels  in the Departments of Agriculture, Defense, Housing and Urban  Development, and State, and the Environmental Protection Agency and  the Office of Management and Budget to determine what cost data are  collected and reported; and determined agencies’ processes in reporting  estimated hours spent on litigating FOIA-related lawsuits. Based on the  results of our testing, we believe the data were reliable enough for the  purposes used in this report. For agencies that had an established  process for collecting and reporting lawsuit information, we calculated the  total cost for the agency by multiplying time spent by staff on a case with  the employee’s hourly salary rate and added any applicable overhead  costs reported by the agency.
To determine the costs incurred by Justice on these lawsuits, we first  determined how Justice tracks lawsuit information and attorney time  spent on each lawsuit. We then requested and received documentation  on case management systems used across Justice’s divisions and  reviewed this documentation to determine if these systems had  capabilities to track the amounts of time attorneys and other staff spent  working on FOIA litigation lawsuits. We reviewed system documentation  for the following Justice case management systems: United States  Attorneys’ Resource Summary Reporting System (USA-5), Legal  Information Office Network System (LIONS), Civil Division’s Case  Management System (CASES), and Tax Division’s Case Management  System (TaxDoc). We then requested information from these systems on  the amounts of time recorded by Justice staff for the 112 lawsuits  included in our study. We supplemented this information by interviewing  Justice officials in the Office of Information Policy, the Executive Office for  United States Attorneys, and the Civil Division.
To determine the details of selected lawsuits, we reviewed case  information and court documentation for each of the 112 lawsuits  obtained from www.foiaproject.org, CourtLink, and Public Access to Court  Electronic Records (PACER) and selected a variety of types of lawsuits to  illustrate in our report.
To determine attorney fees and costs for the 112 lawsuits, we reviewed  Justice’s annual litigation and compliance reports, where information on  attorney fees and costs awarded by the court to the plaintiff is reported.  We then compared these amounts to the totals reported by agencies on  what they paid to plaintiffs to identify any differences. In lawsuits where  there was a difference, we asked Justice and the agencies for information  on why the differences could have occurred.
We conducted this performance audit from September 2015 through  September 2016 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.
section_title: Appendix II: Freedom of Information Act Exemptions
paragraphs: The Freedom of Information Act (FOIA) prescribes nine specific  categories of information that are exempt from disclosure, which are  described below.
section_title: Appendix III: Examples of FOIA Litigation Lawsuits
paragraphs: Of the 112 lawsuits selected where the plaintiff substantially prevailed, a  lawsuit was filed either because (1) the agency failed to respond within  the statutory time frame (58 lawsuits); (2) the agency failed to provide all  of the documentation in the FOIA request (46 lawsuits); or (3) for other  reasons, such as denial of a fee waiver or appealing a dismissal of a  claim (8 lawsuits). The following examples illustrate the reasons lawsuits  were filed and the corresponding decisions rendered that resulted in  payments of attorneys’ fees and court costs to the plaintiffs.
Failure to Respond Within the Statutory Time Frame  In May 2011, a requestor sought records from the Federal Election  Commission related to correspondence pertaining to agency business  between three commissioners and any outside entities. The Federal  Election Commission acknowledged receipt of the request by e-mail  the next day and granted the requestor a fee waiver. Two months  after the initial request was submitted, the Federal Election  Commission informed the requestor that it had received the first set of  potentially responsive documents from its searches, was still  performing more searches, and was reviewing thousands of  potentially relevant documents. The requestor claimed the agency  had said it could release the first batch of responsive documents  within 2 weeks and filed suit when the agency failed to do so. The  Federal Election Commission responded with the first set of records  about 3 weeks later and completed its response 10 days after that by  releasing two more batches of records. At that time, the agency  provided an explanation of its exemption claims and told the requestor  that it could file an appeal. The court ultimately found that the agency  acted unreasonably in withholding documents in response to the FOIA  request and ordered it to pay the requester $153,759 in attorneys’  fees.
In March 2013, a requestor asked the Office of Management and  Budget to provide documents relating to communications to or from  Congressional staff which contained information on federal  expenditures. After 4 months with no response, the requestor filed a  lawsuit. The Office of Management and Budget and the requester  entered into a settlement agreement resulting in the lawsuit being  dismissed and the agency paying $4,182 in attorneys’ fees and costs.
In March 2012, a requestor sought documentation related to a warrant  search. The Federal Bureau of Investigation produced more than  1,000 pages of responsive records and withheld approximately 600  under the Privacy Act and various FOIA exemptions. The requester  filed a lawsuit after not receiving a response to the administrative  appeal. The court ordered the Federal Bureau of Investigation to  release the information that was withheld and to pay $7,500 in  attorneys’ fees and costs arising from the lawsuit.
In March 2014, a requester asked the Office of Personnel  Management to provide documents relating to understanding the  basis of the agency’s annuity computations. After 5 months with no  response, the requestor filed a lawsuit. The Office of Personnel  Management and the requester entered into a settlement agreement  resulting in the lawsuit being dismissed and the agency paying $1,250  in attorneys’ fees and costs.
Agency Failed to Provide All Documentation  In March of 2013 the requester filed a lawsuit in connection with a  request for records concerning how the Department of Labor audits  permanent labor certification applications made by employers  pursuant to the Immigration and Nationality Act. The lawsuit was filed  after a year of correspondence concerning fees and the scope of the  request. Over the course of several months after the suit was filed, the  department provided 347 documents in full or in part to the requester  but attempted to withhold other sensitive records and information  regarding how the audits are conducted. In November 2013, the court  ruled against the department’s FOIA exemption assertions and  ordered an additional search. As a result, the original 347 documents  were all released in full in addition to approximately 1,045 additional  documents. In October of 2014, the Department of Labor and the  requester entered into a settlement where it agreed to pay the  requester $51,000 to cover attorneys’ fees, expenses, and costs in  exchange for the plaintiff withdrawing any remaining claims.
In July 2013, a requestor sought documentation related to the  renovation of Consumer Financial Protection Bureau headquarters.  The Consumer Financial Protection Bureau told the requester it had  located 257 pages of documents and was withholding 254 pages of  documents under exemptions 5 and 6. The requester filed an  administrative appeal. After 3 months, the bureau upheld its decision  to withhold the 254 pages and agreed to the request for a further  search. The bureau located 93 additional pages and withheld 81  pages under exemptions 5 and 6. The requester then filed a lawsuit.  The bureau and the requester entered into a mutual decision resulting  in the lawsuit being dismissed and Consumer Financial Protection  Bureau paying $800 in attorneys’ fees and costs.
In December 2011, a requestor sought documentation concerning the  Department of Homeland Security’s social media monitoring  initiatives. The department did not provide documentation or a  determination regarding the request, so the requestor filed an  administrative appeal. After the initial request, the requester filed a  lawsuit after not receiving a response to the administrative appeal or  any documentation. The Department of Homeland Security released  286 pages in full, 173 with redactions, and withheld 286 pages. The  court ruled for the jointly for the requester and the department. The  court also ordered the department to pay $30,000 in attorneys’ fees  and costs.
In 2012, a plaintiff filed a FOIA lawsuit seeking non-tax return  information related to his deceased father from the Social Security  Administration. Since Privacy Act rights end with death and no other  federal regulation prohibited the records disclosure, the agency  provided the records sought. The requestor then requested damages  and litigation fees under FOIA, which was dismissed. The requestor  appealed the judgment, but the dismissal was affirmed. The agency  did not contest the request for litigation costs of $350 in filing fees and  awarded them accordingly.
In January 2014, a request was made to the U.S. Fish and Wildlife  Service for a 2009 memorandum concerning the legal status of the  thick-billed parrot, the wood bison, the margay, and the northern swift  fox under the Endangered Species Act. The agency withheld the  memorandum under exemption 5 claiming it was protected by the  attorney-client privilege. The requestor appealed the agency’s  decision and then filed a lawsuit. The parties settled with the agency  paying $8,000 to the cover the requestor’s attorneys’ fees and costs.
section_title: Appendix IV: Costs Reported for Selected FOIA Litigation Lawsuits
paragraphs: We identified 112 lawsuits across 28 federal agencies where the courts  had awarded attorneys’ fees and costs from 2009 to 2014. The following  table shows the agencies with lawsuits, the total number of lawsuits at  each agency, the number of lawsuits for which agencies provided costs,  the reported costs for those lawsuits, and the amount of attorneys’ fees  and costs agencies reportedly paid to plaintiffs for the total number of  lawsuits defended.
section_title: Appendix V: Comments from the Department of Justice
section_title: Appendix VI: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact names above, Anjalique Lawrence (Assistant  Director), Eric Trout (Analyst in Charge), Andrew Banister, Chris  Businsky, Rebecca Eyler, Kendrick Johnson, David Plocher, Rosalind  Romain, Jonathan M. Wall, and Charles Youman made key contributions  to this report.