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

Letter

Background

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.

Justice Oversees Federal Agencies’ Implementation of FOIA Requirements and Defends Agencies When Lawsuits Arise

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.

Justice Reports Annually on FOIA Litigation Lawsuits

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.

Agencies’ Costs Associated with FOIA Lawsuits Where the Plaintiffs Prevailed Could Not Be Fully Determined

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.

Justice Does Not Collect Litigation Cost Data for Individual Lawsuits

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.

Actual Costs Incurred for FOIA Lawsuits Are Not Tracked by All Agencies

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.

Justice’s Annual Compliance Reports Include Required Information, but Lack Complete Information on Appeals and Settlement Agreements

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.

Conclusions

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.

Matters for Congressional Consideration

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.

Agency Comments and Our Evaluation

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.

Appendix I: Objective, Scope, and Methodology

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.

Appendix II: Freedom of Information Act Exemptions

The Freedom of Information Act (FOIA) prescribes nine specific categories of information that are exempt from disclosure, which are described below.

Appendix III: Examples of FOIA Litigation Lawsuits

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.

Appendix IV: Costs Reported for Selected FOIA Litigation Lawsuits

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.

Appendix V: Comments from the Department of Justice

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.