Reducing FOIA
Litigation Through
Targeted ADR Strategies

Mark H. Grunewald
James P. Morefield Professor of Law
Washington and Lee University School of Law
Final Report: April 28, 2014
This report was prepared for the consideration of the Administrative Conference of the United States. The views
expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

TABLE OF CONTENTS

Executive Summary ..........................................................................................................................................................................1
I. Study Methodology and Scope ...............................................................................................................................................2

II. FOIA Overview and Disputes .................................................................................................................................................5
A.

Brief Overview of FOIA Process ..................................................................................................................................5

B.

FOIA Disputes .......................................................................................................................................................................6

A.

Initial Processing ................................................................................................................................................................8

C.

Agency Processing Costs..............................................................................................................................................16

III. Agency Processing of FOIA Requests ...............................................................................................................................8
B.

Appeals Processing.........................................................................................................................................................13

D.

Overall Effect of the Appeals Process ....................................................................................................................18

IV. FOIA Litigation ..........................................................................................................................................................................20
A.

1.

2.

Caseload Data ...............................................................................................................................................................21

FOIA Case Dispositions............................................................................................................................................23

3.

Attorney Fee and Cost Awards ............................................................................................................................31

5.

Exemptions Asserted in Litigation ....................................................................................................................35

4.

B.

District Courts ...................................................................................................................................................................21

Agency Litigation Costs ...........................................................................................................................................33

Courts of Appeal ...............................................................................................................................................................37

V. The Interviews ...........................................................................................................................................................................38
A.

Requesters Types: Motivation ..................................................................................................................................38

C.

Agency Engagement .......................................................................................................................................................40

B.

D.
E.

Requester Types: Resources and Sophistication ............................................................................................40
Intractable and “Tractable” Issues .........................................................................................................................41
Dispute Resolution "Typologies".............................................................................................................................42

VI. Existing FOIA Alternative Dispute Resolution Structure ....................................................................................45
A.

Department of Justice: Office of Information Policy......................................................................................45

C.

Other Agencies: Content-Specific Dispute Resolution .................................................................................53

A.

International ......................................................................................................................................................................55

B.

NARA: Office of Government Information Services .......................................................................................46

VII. Comparative FOIA Dispute Resolution .......................................................................................................................55
i

1.
B.

2.

Canada ..............................................................................................................................................................................55
Mexico ..............................................................................................................................................................................56

State FOIA Alternative Dispute Resolution Approaches .............................................................................60

VIII. Conclusions and Recommendations ...........................................................................................................................62
A.
B.

1.
2.

Conclusions.........................................................................................................................................................................62

Targeting FOIA ADR by Dispute Characteristics ........................................................................................62
Targeting FOIA ADR by Mechanism Characteristics ................................................................................64

Recommendations ..........................................................................................................................................................67

Appendix A: Freedom of Information Act Sections Referenced in Report......................................................A-1

Appendix B: List of Individual Interviewees & Group Session Attendees....................................................A-10

Appendix C: Agency-Level FOIA Processing Data .....................................................................................................A-12
1. Initial Requests: Use of FOIA Exemptions by Twelve Agencies Receiving Highest Number of
Requests ....................................................................................................................................................................................A-12
2.

Fee Waivers ...................................................................................................................................................................A-14

4.

Appeal Dispositions...................................................................................................................................................A-16

3.

Expedited Processing: Disposition & Timing...............................................................................................A-15

Appendix D: Excerpts of RTI Appeal Rating Summaries for USA, Canada, and Mexico ........................A-19

ii

LIST OF TABLES
Table 1: Initial Requests Received by 12 Agencies Receiving the Highest Number of Requests ............................... 9
Table 2: Initial Grants and Denials Processed by 12 Agencies Receiving Highest Number of Requests .............. 10
Table 3: Average Processing Times for 12 Agencies Receiving Highest Number of Requests ................................ 11
Table 4: Twelve Agencies Receiving Highest Numbers of Appeals ................................................................................... 14
Table 5: Disposition of Appeals by the 12 Agencies Receiving the Highest Number of Appeals ............................ 15
Table 6: Processing Costs and Fees Collected by 14 Agencies Receiving the Highest Number of
Requests and/or Appeals ................................................................................................................................................................ 17
Table 7: Government-Wide FOIA Appeals Dispositions (FY 2010 - FY 2012)............................................................... 19
Table 8: FOIA Cases Filed and Terminated, U.S. District Courts (FY 2000 – 2013) ..................................................... 21
Table 9: Time Intervals Filing to Termination of FOIA Case in District Courts (FY 2007-2013) ............................ 22
Table 10: District Courts Ranked by Annual Number of FOIA Filings (Top Five Districts
FY 2007–13)......................................................................................................................................................................................... 23
Table 11: Dispositions in Terminated Cases ............................................................................................................................. 25
Table 12: Filing to Termination Interval Means and Medians in Months ....................................................................... 28
Table 13: Fourteen Agencies Most Frequently Sued under FOIA Based Upon Filings (FY 2009 – FY 2013)...... 30
Table 14: Attorney Fee and Cost Awards in FOIA Litigation Based on TRAC/PACER Data
(Fiscal Years 2010 – 2013) ............................................................................................................................................................. 32
Table 15: Attorney Fee and Cost Awards in FOIA Litigation Based on DOJ Annual Reports (Calendar Years
2008 – 2012)........................................................................................................................................................................................ 32
Table 16: Litigation Costs of Agencies with Highest Volume of FOIA Requests (FY 2010 – 2012) ........................ 34
Table 17: Exemptions Asserted in Litigation Based on Justice Department Annual Reports (Calendar Years
2008 – 2012)........................................................................................................................................................................................ 36
Table 18: Exemptions Asserted in Litigation Based on TRAC/PACER closed cases
(Fiscal Years 2010 – 2013) ............................................................................................................................................................. 36
Table 19: Courts of Appeals Decisions in FOIA Appeals Terminated (FY 2000 – 2013)............................................ 37
Table 20: OGIS Caseload (FY 2010 – 2013) ............................................................................................................................... 49

Appendix C:
Table C- 1: Initial Requests - Agency Use of Exemptions 1 & 2 ...................................................................................... A-12
Table C- 2: Initial Requests - Agency Use of Exemptions 3 & 4 ...................................................................................... A-12
Table C- 3: Initial Requests - Agency Use of Exemptions 5 & 6 ...................................................................................... A-13
Table C- 4: Initial Requests - Agency Use of Exemptions 7(C) & 7(E) .......................................................................... A-13
Table C- 5: Fee Waiver Decisions and Days to Adjudicate................................................................................................ A-14
Table C- 6: Expedited Requests Grants, Denials, and Days to Adjudicate ................................................................... A-15
Table C- 7: Appeals - Agency Use of Exemptions 1 & 2 ..................................................................................................... A-16
Table C- 8: Appeals Agency Use of Exemptions 3 & 4 ........................................................................................................ A-16
Table C- 9: Appeals Agency Use of Exemptions 5 & 6 ........................................................................................................ A-17
Table C- 10: Appeals Agency Use of Exemptions 7(C) & 7(E) ......................................................................................... A-17
Table C- 11: Non-Exemption-Based Appeal Dispositions................................................................................................. A-18

iii

EXECUTIVE SUMMARY
The Freedom of Information Act1 provides a two-level agency process for decisions
on requests for access to agency records: (1) an initial determination that is ordinarily
made by the component of the agency with primary responsibility for the subject matter of
the request and (2) an appeal to an authority under the head of the agency in the case of an
adverse initial determination. 2 A requester’s formal recourse following an adverse
determination on appeal (or the agency’s failure to meet the statutory time limits for
making a determination) is a suit in federal district court to challenge the agency action or
inaction. 3 Attaining the highest level of compliance at the agency level, without the need for
resort to litigation, has long been recognized as a critical FOIA policy objective. A series of
amendments to the Act over the years has provided for more detailed monitoring of agency
compliance and has established agency mechanisms to promote compliance. 4 Despite these
efforts, several hundred agency FOIA determinations adverse to requesters are challenged
annually in federal court, and it is widely assumed that a substantial number of other noncompliant agency FOIA determinations are not taken to court by requesters, primarily for
reasons of cost and delay that inhere in federal court litigation. This study examines the
issues and other case characteristics that most commonly lead to compliance disputes and
evaluates dispute resolution strategies that are most likely to resolve such FOIA disputes in
an efficient and effective manner short of litigation.

The current study is divided into eight parts. Part I indicates the scope and
methodology of the study. Part II briefly acknowledges some of the basic sources of
variation in FOIA disputes and recognizes there exists a systemic complexity in FOIA
implementation that counsels in favor of a multi-dimensional approach to assessing the
dispute resolution process. Part III examines the current and historic levels of FOIA
requests and agency processing to those requests. Part IV surveys the current and historic
levels of litigation of FOIA claims and the formal and "informal" resolution of those claims
in litigation. Part V seeks to move beyond the limits of available hard data toward practical
considerations that inevitably become a part of evaluating the prospects for the better and
greater use of alternative methods to resolve FOIA disputes. This section is substantially
informed by the insight gained from a series of interviews or group sessions, conducted by
the author, with a wide range of FOIA experts—both within and outside government—with
experience in FOIA policy and litigation or dispute resolution. Part VI examines existing
sources of FOIA alternative dispute processes external to agency process. Part VII provides
a brief comparative analysis of the use of alternative FOIA dispute resolution systems in the
1 5 U.S.C. § 552.

2 5 U.S.C. § 552(a)(6)(A).

3 5 U.S.C. § 552 (a)(4)(B).

4 The Act was passed in 1966 and became effective in 1967. It underwent significant amendment in

1974, 1986, 1996, and 2007.

1

states and in other countries. Part VIII contains the study's conclusions and
recommendations.

The study finds wide variation in the form and substance of FOIA disputes between
requesters and agencies, and in the motivation, resources, and sophistication of requesters,
and in the missions and the level of interest in agency records. The seemingly most specific
ways of targeting alternative dispute resolution, for example, focusing on particular issues,
categories of requesters, or certain agencies, in a system with the complexity of FOIA, tends
to pose irreconcilable choices in accomplishing the broad goals of the Act. Whether one
looks at the FOIA process in the agencies or in the courts, no simple set of targets emerges
as most compelling. Even if one became convinced that some issues, requesters, or agencies
seem more compelling targets as a matter of FOIA policy, those targets would not
necessarily be the ones that lend themselves best to the use of post-agency process
alternative to the courts. The search for targets in terms of case characteristics, while
informative in some respects, does not serve well to identify disputes that are particularly
amenable to informal dispute resolution and thus deserving, based on those characteristics,
of a pre-determinable share of the limited dispute resolution resources available.

Rather, the study concludes that the most important targeting should be directed
toward the dispute resolution mechanism itself. That is, the availability of a mechanism
external to the agencies that is open to all issues, all requesters, and all agencies, and that
has appropriate FOIA dispute resolution authority, expertise, and resources is paramount.
Choices involving such matters as case prioritization and dispute resolution techniques
should be made by the dispute resolution body. In 2007, Congress broke with the FOIA
dispute resolution structure that had been in place for forty years, creating a dispute
resolution body external to the agencies that is available as a non-exclusive alternative to
litigation--the Office of Government Information Services (OGIS). The study makes a series
of recommendations to foster the development and dispute resolution centrality of OGIS-the targeting choice made in the first instance by Congress.
I. STUDY METHODOLOGY AND SCOPE

The objective of the study is to establish a research basis for recommendations that
would serve the purposes of making government more efficient, while also promoting
accessibility and openness of government information, with benefits to both FOIA
requesters and federal agencies, while forestalling litigation. The study consists of analysis
of FOIA case processing in the agencies at both the initial and appeals level and in the
courts. The analysis is both quantitative and qualitative. Examining both the agency
caseload and its processing and the court caseload and its processing, because of limits in
the nature of the available data and certain unique characteristics of FOIA disputes,
2

constrains the insight that can be drawn in terms of the use of alternative methods for
dispute resolution. Many of the shortcomings of that data are offset by a series of
interviews with FOIA experts inside and outside the government with experience in FOIA
case processing in the agencies and with FOIA litigation or policy generally. The author
interviewed 32 individuals and participated in group discussion sessions with 22 other
individuals in these categories. They are identified in Appendix B of the study. The study
also examines the existing FOIA alternative dispute resolution structure and provides some
comparison with such structures in other countries and in the states.
The scope of the study is necessarily limited in practical ways to only some of the
plethora of policy and practice issues related to FOIA that could, in one form or another, be
said to bear on FOIA dispute resolution. In other words, the study is not a general
examination of the ways in which FOIA compliance could be improved.

First, the study title uses the term "ADR." "Alternative Dispute Resolution"
mechanisms are most commonly thought of as alternatives to judicial proceedings. That is
the primary sense in which the term is used here. It is not possible, however, to identify
prospectively the FOIA claims that will lead inevitably to litigation unless resolved through
an alternative mechanism. Yet it is also difficult to examine the potential value of greater
use of ADR mechanisms without having a frame of reference for considering the scale of the
undertaking with sensitivity to manageability. Therefore, this study proceeds from the
assumption that only some FOIA disputes are likely to benefit sufficiently from the
availability of a dispute resolution mechanism external to the agencies to justify making the
inherently limited ADR resources available to them. The benefit may be the actual
avoidance of litigation in a particular dispute, or it may be the provision of assistance that
enables the requester and the agency to arrive at a resolution that is consistent with the
policies of the Act without regard to the likelihood of litigation. An important question,
however, is whether the characteristics of those cases can be identified with sufficient
particularity to deem them appropriate "targets" for allocating ADR resources.
Second, the study centers on FOIA disputes that arise under current law and
practice. It is important to understand that numerous proposed reforms of FOIA law or
practice have the potential to reduce or eliminate certain disputes within the scope of the
study. For example, proposals for greater "proactive" records releases by agencies,
narrowing the scope of particular exemptions, formally applying a "harm" standard for
what would otherwise be discretionary denials of access, and a broad web-based portal for
making and tracking individual requests are all significant proposals. 5 The merits of these
5 A recent example of an extensive series of proposals of this general nature is found in “Best

Practices for Agency Freedom of Information Regulations,” published in December 2013 by the
Center for Effective Government. GAVIN BAKER, CTR. FOR EFFECTIVE GOV’T, BEST PRACTICES FOR AGENCY
3

proposals, however, can be assessed independently of the value of using alternative dispute
resolution mechanisms for disputes that develop under current law and practice. The study
does not speculate on the likelihood of any of these proposals being adopted or the possible
impact on dispute resolution if one or more of the proposals were to be adopted.

Third, the study is of necessity a study within the context of a "system" of FOIA law
and practice that has developed over a period of more than four decades. The behavior of
participants in the system--requesters, agencies and courts--is sensitive, in certain obvious
ways, either to formal changes in the system or to events external to the system. For
example, a judicial broadening or narrowing of the interpretation of the scope of an
exemption could have several systemic consequences, such as increasing or reducing the
number of requests for records for which the exemption may be relevant, changing agency
reliance on that exemption or another, or making the resolution of disputes under that
exemption easier or more difficult. 6 Similarly, a high profile news event involving the
federal government that attracts public attention may lead to significant increases in
requests to particular agencies and may create heightened agency sensitivities toward
those requests. 7 These systemic consequences almost always have impact on available
dispute resolution mechanisms and resources. Because the factors that can trigger
systemic reaction and the extent of that reaction are largely unforeseeable, it is not possible
to account for their effect in this study, but the study does seek to account for the ways in
which changes in dispute resolution mechanisms themselves could have systemic effect.
Finally, the author of this study conducted a study of FOIA dispute resolution for the
Administrative Conference in 1987.8 The Conference did not adopt any recommendations
based on the earlier study, but did issue a "Statement on the resolution of FOIA disputes,"
which encouraged agencies to make greater use of informal dispute resolution mechanisms
in FOIA cases, referring particularly to a type of informal assistance then provided by the
Department of Justice on a limited basis. 9 The Openness Promotes Effectiveness in our

FREEDOM OF INFORMATION REGULATIONS, http://www.foreffectivegov.org/files/info/foia-bestpractices-guide.pdf.
6 See infra note 25 and accompanying text (discussing effect of Milner v. Dep’t of the Navy, 131 S. Ct.
1259 (2011)).
7 The recent controversy surrounding the work of the National Security Agency is a good example.
FOIA requests to the agency increased over 1000%, comparing the period from 6/6/13 through
9/4/13 with the period 6/6/12 through 9/4/12. See Zack Sampson, NSA Inundated by FOIA
Requests After Snowden Leaks, Oct. 7, 2013,
https://www.muckrock.com/news/archives/2013/oct/07/nsa-inundated-foia-requests-aftersnowden-leaks.
8 The article adaptation of the study appears as: Mark H. Grunewald, Freedom of Information Act
Dispute Resolution, 40 ADMIN. L. REV. 1 (1988) [hereinafter “1987 ACUS Study”].
9 Statement on Resolution of Freedom of Information Act Disputes, 52 Fed. Reg. 23,636 (June 24,
1987).
4

National (OPEN) Government Act of 200710 sought to formalize agency assistance to
requesters through the creation in each agency of a Chief FOIA Officer and FOIA Public
Liaisons, 11 and established the Office of Government Information Services12 (OGIS) in the
National Archives and Records Administration to perform a range of functions aimed at
improving FOIA compliance and providing assistance to requesters. Those two
developments are the only formal government-wide FOIA dispute resolutions changes
since 1987. While the landscape for FOIA alternative dispute resolution is now different in
these two respects, the nature of FOIA disputes and many of the challenges in resolving
them, as described in the 1987 study, remain largely applicable today. The 1987 study,
thus, is helpful in some ways as a comparative reference.
II. FOIA OVERVIEW AND DISPUTES
A. Brief Overview of FOIA Process

The Act makes available to any person, upon request, any reasonably described
agency record that is not exempt (or excluded) from disclosure under the terms of the
Act. 13 The nine exemptions to the Act are for records that contain certain:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Information properly classified for national security or foreign relations reasons.
Information related solely to agency internal personnel rule and practices.
Information that is expressly exempted from disclosure by statute.
Information that is a trade secret or is commercially or financially confidential.
Information that reveals privileged agency deliberative process.
Information that would constitute an unwarranted invasion of personal privacy.
Information from certain records compiled for law enforcement purposes.
Information related to the regulation of financial institution.
Information consisting of geological and geophysical data.

Normally, a request is required by the Act to be determined by the agency within 20
working days. After receiving a determination or if the applicable time limit has not been
met, a requester normally can appeal the determination or lack of action to a higher
authority within the agency, which itself has 20 working days to determine the appeal.
Agencies are required to disclose the non-exempt segregable portions of an otherwise
exempt record. Agencies may charge certain fees for search, review, and duplication of
requested records, but are required to waive those charges for requesters in certain
categories. Agencies are also required to consider requests for expedited processing of

10 Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L. No. 110-175,
121 Stat. 25245 (codified at 5 U.S.C. § 552).
11 5 U.S.C. §§ 552(j)-(l).
12 Id. § 552(h).
13 Relevant provisions of the Act are presented in Appendix A of the study.

5

requests under certain circumstances. If an agency makes a final denial of a request for
access to an agency record for any reason, or if the agency fails to make a determination on
the request within an applicable time limit, the requester may bring an action in federal
district court to review de novo the agency determination or failure to act. The court may
award attorney fees and costs to a plaintiff who prevails in the judicial proceeding.
B. FOIA Disputes

Requester use and agency implementation of FOIA, under the supervision of the
courts, has followed a remarkably consistent pattern for over four decades, but one often
viewed at odds with some of the basic provisions of the Act and certain aspirations of open
government policy. 14 The use and implementation pattern, while consistent, is at the same
time complex. The formality of the pattern is a requester seeking records from an agency
under a statutory scheme that, on the one hand, has quite detailed procedural elements
and, on the other hand, has substantive elements that are much less detailed and that may
invite some exercise of discretion. But a significant and further level of complexity derives
primarily from elements in the pattern that are not formally recognized in the terms of the
Act. For example, a core concept in the Act is “requester." 15 And for the most part, it is a
fundamental principle of the Act that all requesters have equal access rights. But requesters
vary widely in their motivations, resources, and sophistication, to mention only a few areas
of possible difference. These differences in turn affect the details of their usage of the Act
and their likely usage of its dispute resolution mechanisms.
Similarly, the term, "agency," 16 relies upon a slight variant of the definition of
"agency" in the Administrative Procedure Act, 17 the larger statutory scheme of which FOIA
is a part. The generality of most APA provisions, largely procedural in nature, is relatively
easily adaptable to the wide range of substantive functions federal agencies perform, and
where necessary, can be refined by agencies through regulations to fit the procedural
needs of particular statutory missions. FOIA, on the other hand, contains both detailed

14 For a recent example, see Margaret B. Kwoka, Deferring to Secrecy, 54 BOSTON COLLEGE L. REV. 185

(2013). An even more recent study by the Center for Effective Government (CEG) scores the
performance of the 15 agencies receiving the largest number of FOIA requests. The rates of
disclosure, fullness of information provided, timeliness of responses, and the extent of adoption of
best practices (see supra note 5) in FOIA regulations are assigned grades based on a CEG formula.
Four agencies received overall grades in the B to C range, four received Ds, and seven received Fs.
Gavin Baker & Sean Moulton, Making the Grade: Access to Information Scorecard 2014 Shows Key
Agencies Still Struggling to Effectively Implement the Freedom of Information Act 4-7, CENTER FOR
EFFECTIVE GOVERNMENT, http://www.foreffectivegov.org/files/info/access-to-informationscorecard-2014.pdf.
15 The statutory term is technically “any person.” 5 U.S.C. § 552(a)(3)(A).
16 5 U.S.C. § 552(f).
17 5 U.S.C. § 551 et seq.
6

procedural provisions and sets substantive standards through its nine exemptions18 that
are unvarying across agencies and agency missions. This could be viewed as either a
strength or weakness of the statute, but is noted here for the effect it has on the complexity
of the overall use and implementation pattern that has developed under the Act. All
agencies are covered by the same substantive access provisions with the exception of
unique Exemption 3 statutes, 19 but agency missions and external interest in agency affairs
vary widely. The pattern of requester and agency experience under the Act and, in turn its
dispute resolution mechanisms, are affected by this variance. This variance consists not
only in quantitative measures such as volume of requests, but also qualitative ones that can
ebb and flow as the focus of public policy and public attention changes over time.
Likewise, any effort at gaining true empirical understanding of the overall system
inevitably encounters the highly variable uses of the core terms “request” for “a record” or
a "full or partial" disclosure or denial of a record. A record can be one page or 1,000 pages.
A request for records, similarly, can be for more than one and possibly thousands of
records. A full disclosure could be for all 500 pages of a single record or a set of records, or
a partial disclosure could be of one paragraph in a five-page record. This characteristic
confounds most attempts to understand caseload and case processing more deeply. It also
can produce a skewed view of what is going on in the dispute resolution process. The
redaction of one “key” paragraph in a 100-page record may trigger a lawsuit, just as likely
as the withholding of 49 pages in a 50-page record. Neither the level of requester interest
nor the extent of agency effort in dealing with the matter can be measured by volume
alone, though clearly a request for tens of thousands of multi-page records has a practical
quantitative consequence.
Finally, for all but the last four years under the Act, the only statutorily provided
dispute resolution mechanism external to the agency process was an action in federal
district court. In 2009, the resource provided by the creation of OGIS became operational.
Nonetheless, to this point, it is the judicial role that has been and remains dominant in
interpreting and refining the Act's broad statutory language and providing important
independent oversight and enforcement of the Act. In the use and implementation pattern
that has developed under the Act, the judicial role also has taken on unique characteristics
that are superimposed on the statutory scheme. For example, under the statute, judicial
review of agency FOIA determinations is to be "de novo." 20 For a variety of reasons,
however, there is a degree of judicial deference to agency FOIA decision-making that is
18 5 U.S.C. § 552(b)(1)-(9).
19 5 U.S.C. § 552(b)(3).

There are scores of Exemption 3 statutes, for example, 42 U.S.C. §§ 2000e5(b) and 2000e-8(e) (Information pertaining to charges of unlawful employment practices;
information obtained by the EEOC in investigating charges of unlawful employment practices) and
50 U.S.C. § 403g (Intelligence sources and method).
20 5 U.S.C. § 552(a)(4)(b).
7

difficult to reconcile with the notion of de novo review. 21 Or equally "extra-statutory," the
mere filing of a FOIA lawsuit often has a significant impact on agency processing of a
request, despite the fact the judicial proceeding only infrequently leads to a substantive
FOIA decision.

In short, the use, implementation, and enforcement pattern that has developed from
the requester-agency-court interactions is a far more complex one than the terms of the
statute suggest. Within that complexity, the challenge is to reach an understanding of ADR
needs and mechanisms so as best to align them to advance FOIA compliance and minimize
FOIA litigation.
III. AGENCY PROCESSING OF FOIA REQUESTS
A. Initial Processing

The analysis of almost any FOIA policy, certainly including dispute resolution policy,
must begin with the scale of FOIA usage. In the 2012 fiscal year, 99 covered federal
agencies reported receiving 651,254 FOIA requests. The number of requests reported for
fiscal years 2011 and 2010 were 644,165 and 597,415, respectively. 22 While many of these
were routine requests for common categories of agency records and could be handled
routinely within agencies, the gross volume figures are significant in at least two respects.
First, they serve as somewhat of a proxy for the level of agency resource that must be
devoted to FOIA case processing in whatever form. Second, and more importantly, the
caseload, unsurprisingly, is not distributed evenly across agencies. As Table 1, below,
illustrates, roughly 85% of the total caseload is concentrated in twelve departments and
agencies, four of which operate primarily in areas of defense, foreign relations, or national
security. Operations of the eight others encompass a relatively wide range of governmental
21 See Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 WM. & MARY L. REV.

679, 732-41 (2002). See also David Zaring, Reasonable Agencies, 96 VA. L. REV. 2317, 2358 (2010).
In
earlier years, the number of reporting agencies was significantly lower, for example 72 and 73 in FY
2009 and FY 2008, respectively. For agency data, therefore, the study relies primarily on the three
most recently reported and most complete years, FY 2010-2012.
22 The number of agencies reporting in FY 2010 was 97 and in FY 2011 and FY 2012 was 99.

After the draft version of this report was completed and was posted on the ACUS website in
February 2014, the Department of Justice, Office of Information Policy, released in March 2014 the
FY 2013 reported data. It shows an increase from 651,254 FOIA requests in FY 2012 to 704,394 in
FY 2013 or an 8.16% increase. While all the new FY 2013 data are not simply proportional (in
relation to this increase) to the FY 2010 though FY 2012 data used in the report, an initial review of
the FY 2013 data reflects no notable inconsistencies with the conclusion from agency data
contained in this report.
8

functions. Initial FOIA request processing for these twelve agencies is presented to provide
some representative detail of that stage in the dispute resolution process.

While routine cases have a significant effect on the gross volume of requests for
most agencies, the workload relief that routine cases may provide can easily be offset by a
small number of requests (counted as only “one” in the volume statistic) that seek a large
number of agency records. And even this caveat does not capture the workload impact of a
request that not only seeks a large number of records, but also seeks them in a critical area
of the agency’s work. Nonetheless, overall and undifferentiated request volume is at least
the starting point for measuring caseload potential in any FOIA alternative dispute
resolution mechanism.

Table 1: Initial Requests Received by 12 Agencies Receiving the Highest Number of Requests

Agencies - Agencies in alphabetical order 23
FY 2010

Department of Agriculture (Agriculture)

20,368

National Archives and Records Administration (Archives)

15,781

Department of Defense (Defense)

73,573

Equal Employment Opportunity Commission (EEOC)

Department of Health and Human Services (Health & Human Services)

16,652
63,839

Number FOIA
Requests Received
FY 2011

FY 2012

18,129

13,345

23,065
74,117
18,424
67,431

22,175
66,078
18,726
68,467

Department of Homeland Security (Homeland Security)

130,098

175,656

190,589

Department of Labor (Labor)

17,398

18,012

18,560

Department of Justice (Justice)

63,682

Social Security Administration (Social Security)

32,997

Department of State (State)

30,206

Department of Treasury (Treasury)

16,911

Department of Veterans Affairs (Veterans Affairs)

29,127

63,103
32,456
14,298
16,776
27,655

69,456
31,329
18,521
16,610
24,423

Total requests to these agencies

510,632

549,122

557,243

Total requests to all reporting agencies

597,415

644,165

651,254

Total requests to all other agencies

86,783

Percent of Total Represented by 12 Agencies

95,043

85%
85%
Derived from: foia.gov

94,011
86%

The grant-denial volume is the natural next step for measuring caseload potential
for any dispute resolution mechanism. Requests granted in full have no subsequent
23 Throughout the report, agency names in tables are listed in alphabetical order, using the short-

form names as indicated in parentheses in Table 1.
9

dispute resolution potential.24 Requests denied in full or in part, either by application of an
exemption or for a non-exemption based reason such as “no record found responsive to the
request," may remain in dispute.

In fiscal years 2010, 2011, and 2012, agencies processed at the initial determination
level 600,849; 631,424; and 665,924 requests, respectively. Of these, 227,227; 236,474;
and 234,049 were granted in full in in those years, respectively. The remaining requests in
each year were denied in full or in part either on the basis of an exemption or for a nonexemption-based reason. The requests denied in full or in part numbered 373,662;
394,950; and 431,875 in fiscal 2010, 2011, and 2012, respectively. This large number of
requests denied in full or in part becomes the first measurable level of requests that have a
potential need for dispute resolution. Table 2, below, reflects the grant and denial
distribution for the twelve agencies receiving the highest number of requests, as shown in
Table 1.
Table 2: Initial Grants and Denials Processed by 12 Agencies Receiving Highest Number of
Requests
Agencies
Agriculture
Archives

Full Grants

FY 2010

FY 2011

FY 2012

FY 2010

FY 2011

FY 2012

456

395

1,173

15,117

16,787

12,573

714

15,435

17,501

18,004

15,415

17,748

17,168

Defense

29,491

30,923

25,672

Health & Human Services

35,063

43,173

42,637

Justice

26,376

28,719

30,623

EEOC

Homeland Security
Labor

Partial or Full Denials based on
exemptions or other reasons

908

16,721
4,358

796

15,203
3,737

1,949

45,299
34,797

26,601

130,428

184,182

2,869

13,267

14,392

16,355

36,988

30,498

29,218

Treasury

6,515

6,042

5,911

12,049

373,622

4,090

27,006

40,979

121,930

31,099

8,710

44,725

4,518

21,715

Social Security
State

5,191

2,313

Veterans Affairs

11,808

10,821

10,241

Total All Reporting
Agencies

227,227

236,474

234,049

1913

35,273

1,947

37,908

2,366

9,676

22,742

13,030

17,049

17,070

14,544

10,641

394,950

Derived from: foia.gov

10,294

431,875

24 Of course, unless an agency follows a practice of publicly posting at least some disclosed records,

every full grant could become the subject of another request, but not one with significant dispute
potential.
10

These numbers do not include for the three-noted fiscal years those requests for
which the agency failed to provide an initial determination within the statutory 20
business-day time limit. Requests that fall into that category in a fiscal year are not
required to be reported in that particular form. Nonetheless, because many agencies report
an average processing time greater than 20 days for simple requests and most agencies
report a processing time greater than 20 days for complex requests, the number of
requests that become subject to dispute because of the expiration of the 20-day time limit
would likely add significantly to the already large number of requests which are denied in
whole or part in any fiscal year. Table 3 reflects reported processing times for the same
agencies shown in Tables 1 and 2.
Table 3: Average Processing Times for 12 Agencies Receiving Highest Number of Requests
Agencies
Agriculture
Archives
Defense
EEOC
Health & Human Services
Homeland Security
Justice
Labor

Social Security
State

Treasury
Veterans Affairs

Average Days
Simple Requests

Average Days
Complex Requests

FY 2010

FY 2011

FY 2012

FY 2010

FY 2011

FY 2012

39
26

37
25

72
19

88
113

78
107

99
100

26
17
24
11
33
12
18

144
18
0

19
11
19
16
35
38
22

155
11
1

33
58
11
18
35
48
19
88
17
11

50
471
127
0
140
27
50

284
14
14

57
382
111
0
112
215
56

342
27
16

Derived from: foia.gov

76
917
115
0
80
55
57

560
26
28

The annual total of full and partial denials and delayed determinations would thus, by
sheer volume, present a serious manageability challenge to any external dispute resolution
mechanism that was open to those cases.

The distribution of exemptions relied upon in exemption-based denials likewise is
not even across agencies, though use patterns do, in some predictable ways, follow agency
missions as shown in Appendix C, Table C-1. For fiscal years 2010-12, the exemptions most
commonly relied upon by the 12 agencies receiving the highest number of requests are
detailed. Unsurprisingly, Exemption 1 denials are most common in defense, foreign
relations and domestic and national security agencies. Presumably, because of the

11

Supreme Court decision in Milner v. Department of the Navy 25, Exemption 2 denials
dropped dramatically across all agencies from FY 2010 to FY 2012, and most dramatically
in the Department of Homeland Security by 99% from 53,828 claims to 480, and in some
agencies to zero. Exemption 3 denials, like Exemption 1 denials, occur primarily in defense,
foreign relations and security agencies, corresponding to the distribution of Exemption 3
statutes. Exemption 4 denials, among all major exemptions number the fewest; and among
the twelve agencies receiving the most FOIA requests, Exemption 4 is a significant portion
of denials only in the Department of Labor. Exemptions 5, 6, and 7 are, by far the most
frequently used exemptions. Exemption 7, the most frequently used, is naturally used
predominantly in agencies that have significant law enforcement responsibilities.
Exemptions 5 and 6 denials combined are fewer than Exemption 7 denials in total, but
Exemptions 5 and 6, have relatively broad application across all agencies.

Two of the most prominent non-exemption-related issues subject to dispute in the
FOIA process are requests for fee waivers and requests for expedited processing. The
agency determination on either issue can have significant impact on the further
development of a case. The denial of a fee waiver request, whether proper or improper,
may lead a requester with limited resources to drop the request entirely. A denial of
expedited processing, again whether proper or improper, may extend the likely processing
time for a request to a point that the value of the information later disclosed to the
requester is significantly reduced or eliminated.

Fee waiver grants and denials as well as average days to adjudicate the request for
12 agencies receiving the highest number of records requests are reflected in Appendix C,
Table C-2. Although there is wide variation in the fee waiver grant rates for the agencies in
FY 2010-2012, the overall grant rates were 60.9%, 63.7%, and 54.2%, respectively. The
difference in grant rates among agencies likely reflects in part the proportion of fee waiver
requests made in cases in which the requester, whether an individual or an entity, seeks
records about itself. 26 The processing times for fee waiver determination vary widely. This
time, in many cases, imposes an additional layer of delay in the overall processing of a
request and consumes additional agency resources in the determination process.
The distribution of grants, denials, and average time to adjudicate expedited
processing requests is reflected in Appendix C, Table C-3. The statutory standards for
expedited processing are generally more stringent than for fee waiver requests, and a
decision to grant any expedited request has, at least theoretically, a negative impact on the
processing times for other requesters. Fee waivers primarily shift the cost of certain

25 131 S. Ct. 1259 (2011)(rejecting application of Exemption 2 in so-called “High 2” cases, involving

a claim that disclosure of certain internal agency records would risk circumvention of the law).

26 The standards for fee waivers are set out in the statutory excerpts in Appendix A at A 1-2. 5 U.S.C.

552(4)(A)(i-viii).

12

aspects of processing from the requester to the agency. For the twelve agencies, the
percentage of expedited processing requests granted was 21.1%, 24.3%, and 17.2% in
fiscal years 2010, 2011, and 2012, respectively. Among the agencies, grant rates varied
widely, but also again likely reflect in part the proportion of first-party requesters. 27
B. Appeals Processing

While request processing at the initial agency level addresses a heavy caseload and
reflects some of the FOIA variation and complexity at that level, interestingly the vast
majority of requests are not disputed following the initial determination or the expiration
of the time limit at the initial request stage. As noted earlier, in fiscal 2010, 2011, and 2012,
respectively, 373,662; 394,950; and 431,875 requests government-wide were denied in
whole or part. While the year of denial would not necessarily be the year in which an
appeal was or could have been filed, there is very significant overlap, and it is reasonable to
use the number of appeals in a given fiscal year as a close approximation of the proportion
of denials appealed in that year. For the fiscal 2010, 2011, and 2012, the number of appeals
filed government-wide was 10,948; 10,705; and 11,899, respectively. There is no agency
reporting requirement for the number of appeals based exclusively on the expiration of the
time limit for the initial determination on the request. Table 4 reflects the number of
appeals received by the twelve agencies receiving the highest number of appeals. The list of
agencies differs, in part, from the list of agencies receiving the highest number of initial
requests. Archives and Social Security drop off, and the CIA and EPA appear.

27 The standards for expedited processing are also set out in the statutory excerpts in Appendix A at

A 5-6. 5 U.S.C. 552(4)(E)(i-vi).

13

Table 4: Twelve Agencies Receiving Highest Numbers of Appeals

Agencies

FY 2010

Agriculture

197

Central Intelligence Agency (CIA)

224

Defense
EEOC

Health & Human Services
Justice

State

215

215

598
316

370
311

2,740

1,917

2,345

353

338

414

372

Veterans Affairs

315

210

204

174

Treasury

212

225

1,148

3,351

Labor

FY 2012

1,066

194

Homeland Security

FY 2011

1,107
313

Environmental Protection Agency (EPA)

Number FOIA
Appeals Received

231

3,258
342
347
345

3,569
212
313
225

Total appeals to these Agencies

9,460

9,179

9,647

Total appeals to All Reporting Agencies

10,948

10,705

11,899

Total appeals to all other Agencies

1,488

Percent Twelve Agencies of Total

86%

1,526

86%
Derived from: foia.gov

2,252
81%

There is no simple way to determine the reason for the low number of appeals from
the quite large number of denials that are appealable. Over the three-year period
addressed above, the rate of appeal was just under 3%. The explanations could range from,
among other possible considerations, a high level of satisfaction with initial determinations
to a high level of confusion or concern as to the proper form, timing or content of an appeal
to a loss of interest after receiving an official, but negative, response from a government
agency. The actual reasons are not unimportant, but developing a reliable account would
require a well-designed empirical study addressed to an appropriate sample of the
hundreds of thousands of requesters who choose each year not to appeal an initial denial.
An undertaking of that nature is beyond the scope of this study.
Appeal rates are not, however, consistent across all agencies. Table 5 reflects appeal
rates among the 12 agencies receiving the highest number of appeals.

14

Table 5: Disposition of Appeals by the 12 Agencies Receiving the Highest Number of Appeals
Agencies

Full and Partial Denials

FY 2010

FY 2011

FY 2012

CIA
Defense

2,546
45,299

2,751
44,725

3,230
40,979

Health & Human Services

34,797

27,006

26,601

Agriculture
EEOC
EPA

1,949

15,435

5,626

5,191

17,501

4,972

Number and Rate of Appeals

FY 2010

FY 2011

FY 2012

224 = 8.8%
1107 = 2.4%

212 = 7.7%
1066 = 2.4%

315 = 9.8%
1148 = 2.8%

194 = .6%

316 = 1.2%

311 = 1.2%

4,518

197 = 10.1%

18,004

313 = 2.0%

4,540

206 = 3.7%

225 = 4.3%
598 = 3.4%
215 = 4.3%

210 = 4.6%
370 = 2.1%
215 = 4.7%

Homeland Security

121,930

130,428

184,182

2740 = 2.2%

1917 = 1.5%

2345 = 1.3%

Labor

13,267

14,392

16,355

353 =2.7%

338 = 2.3%

414 = 2.5%

Justice

State

36,988
9,676

Treasury

12,049

All Reporting Agencies

373,622

Veterans Affairs

17,049

35,273
22,742
10,641
17,070

394,950

37,908

3351 = 9.1%

13,030

174 = 1.8%

14,544

231 = 1.4%

10,294
431,875

372 = 3.1%

3258 = 9.2%
342 = 1.5%
347 = 3.3%
345 = 2.0%

3569 = 9.4%
212 = 1.6%

313 = 3.0%
225 = 1.5%

10,948 = 2.9% 10,705 = 2.7% 11,899 = 2.6%
Derived from: foia.gov

Appeal rates among these twelve agencies range from lows of 1.4%, 1.2 %, and 1.2% in
fiscal 2010, 2011, and 2012, respectively, to highs of 10.1%, 9.2%, 9.4%, respectively in
those years. While all the rates vary year to year among agencies, the CIA and the
Department of Justice relatively consistently have the highest rates, centering around 9%.

For the twelve agencies receiving the highest number of appeals, the most
commonly relied upon exemptions are detailed in Appendix C, Table C-4. The disposition of
appeals by these twelve agencies on the basis of one or more exemptions reflect roughly
the same distribution in the use of exemptions that are reflected in initial processing, as
shown in Appendix C, Table C-1. The relationship of agency mission to particular
exemptions would be expected to show that sort of proportionality, but there is also rough
proportionality across all exemptions. Agencies, of course, make decisions on some appeals
to release records or portions of records that were deemed exempt in initial processing,
but with respect to those withheld in full or in part on the basis of exemptions, the
distribution pattern remains essentially the same. Or to put it slightly differently, in the
case of the more narrow set of agencies shown here, the use of the appeals process does
not produce significantly different rates of use for particular exemptions. Nonetheless,
agency use of a particular exemption either initially or on appeal may change as a result of
change in agency policy or in law. This can been seen most dramatically in decline in use of
Exemption 2 across several agencies after the Milner decision, or in the case of a particular
15

agency, the reduction in the use of several exemptions by the Department of Homeland
Security from their FY 2010 levels.

Agencies also use certain non-exemption-based grounds for disposition of appeals.
For the twelve agencies shown in Appendix C, Table C-4, three of the most common28 nonexemption-based appeals dispositions are reflected in Appendix C, Table C-5. These, as well
as the less common ones, also become part of appeals dispositions that have potential need
for further dispute resolution if they remain in dispute.
Among the less common non-exemption-based appeals dispositions are those made
in appeals that seek only review of an initial determination to deny expedited processing
status. In the three fiscal years, 2010-12, a total of only 185 such appeals were taken, and
165 of these were to the twelve agencies in Appendix C, Table C-5. The 165 appeals were
from well over 8000 initial expedited-processing requests denied by these agencies. While
agency failure to meet the 20-day time limit is often the subject of appeal, the more critical
the processing time, the less attractive is further time expended through an appeal. For
cases that requesters perceive as warranting expedited processing, the appeals process is
thus virtually disregarded.
C. Agency Processing Costs

The financial cost of pursuing (for the requester) and processing (for the agency) a
FOIA request at the agency level, which could include both the initial and appellate stages,
is difficult to gauge. One could say that for the requester, the expenditure for both an initial
request and an appeal, in the simplest form of a letter or an electronic communication to
the agency stating the nature of the initial request and or the reason for an appeal, is
minimal. But that does not begin to account for the varying nature of requests, both as to
scope and subject matter, nor does it capture the scale of the time and effort committed by
the agency to the request, usually related to the degree of the sophistication of the
requester. And even a seemingly simple request by an unsophisticated requester with a
novel interest in an aspect of government can trigger an agency's devoting a substantial
level of resource to processing the request. The balance is generally perceived as tilting
toward far greater cost to the agency than the requester, though for a requester with
limited resources, a substantial commitment of time and effort by the agency to a request
can be costly to the agency and (particularly if fees are to be charged) to the requester. The
actual collection of search, review and duplication fees, and the grant or denial of fee
waivers can also affect to some degree the relative consumption of resources.
28 Other non-exemption-based appeals dispositions include such matter as, “request withdrawn,”

“not an agency record” and “request in litigation.”

16

The Act requires agencies to report processing costs and fees collected. This
provides a piece of the picture of FOIA dispute resolution at the agency level. Table 6 shows
the reported processing costs for fourteen agencies, both the twelve used for initial
processing data, and the two agencies added in appeals processing data, as well as the total
for all reporting agencies.
Table 6: Processing Costs and Fees Collected by 14 Agencies Receiving the Highest Number
of Requests and/or Appeals

Agencies

Processing Costs
in dollars

FY 2010

FY 2011

FY 2012

FY 2010

FY 2011

FY 2012

3,078,553

206

607

203

Agriculture

13,447,891

12,920,286

11,153,997

CIA

10,000,000

10,500,000

10,700,000

EEOC

2,075,812

2,541,509

2,541,509

Archives
Defense

2,973,280

87,742,648

3,162,915

89,602,701

Collected Amount
in dollars

92,484

2,054

87,358

520

44,987

1,852

72,894,645

407,739

585,461

490,415

44,033

48,094

60,514

Environmental Protection Agency

20,529,057

17,352,298

17,602,417

464,209

329,811

385,722

Homeland Security

36,678,628

33,361,701

36,748,129

393,027

369,371

435,891

290,434

289,284

260,681

19,471

11,557

Health & Human Services
Justice
Labor

Social Security

36,243,521
52,358,200

12,593,730

6,123,535

45,748,344
55,303,213
13,074,204

3,982,633

47,219,436
57,896,289
12,598,645

1,684,081

11,404,027

209,510

12,993,612

15,653,418

16,467,583

Veterans Affairs

12,214,528

16,332,658

18,293,547

Total 14 Agencies

Total All Reporting Agencies

10,487,966

10,328,842

201,492

4,368,669

State

Treasury

796,587 1,152,405 1,016,530

316,462,408 329,864,722 322,967,446
394,222,134 412,647,829 405,464,199

9,711

17,439

123,862
314,028
314,028
102,100

82,594

268,833
268,833
48,015

4,613,006 3,736,400 3,376,627

5,935,854 6,193,011 4,788,879
Derived from: foia.gov

Processing costs vary widely among agencies and are not closely correlated with the
number of requests an agency processes. This is not unexpected, not only because of
agency to agency variation in the systems used for processing requests, but also and
perhaps more importantly, because the complexity of a "request" can vary, often affected
by the particular mission of an agency. Additionally, the prescribed method for calculating
processing costs is not highly precise. Department of Justice instructions for reporting
processing cost read:

17

Provide the sum of all costs expended by the agency for processing FOIA
requests at the initial request and administrative appeal levels. Include
salaries of FOIA personnel, overhead, and any other FOIA-related expenses. 29

This instruction leaves considerable discretion in the agencies for associating costs
with FOIA processing. For a function that can spread across an agency in so many different
ways, there is probably no more practicable definition of FOIA costs. What one should
make of this level of cost is a difficult question. One could take the total processing costs in
a given fiscal year and divide it by the number of requests processed in that fiscal year and
arrive at some approximation of the cost per request processed. Government-wide, for FY
2012, the cost figure would be $405,464,199 divided by 665,924 cases processed, or $609
per case. Because in that same fiscal year, $4,788,879 was collected in fees, that could be
said to have reduced processing costs by that amount to $400,675,320 or $602 per case.
Even that exercise, however, is problematic because, among other reasons, the processing
costs include appeals processing as well, and only a small portion of cases contribute to
appeals processing costs. Ultimately, without knowing more about the underlying cases,
these numbers provide no real insight into how these costs might bear on agency
amenability to alternative dispute resolution processes.
D. Overall Effect of the Appeals Process

Cost aside, the fact remains that relatively few denials of any type are appealed.
Nonetheless, a small but not insignificant number of appeals do lead to complete reversals
in the appellate process, leaving even fewer denials with further dispute potential. The
number of appeals received by an agency in a particular fiscal year would not normally be
the same as the number of appeals disposed of by the agency in that fiscal year. Some cases
for which there is a current-year appeals disposition came from a prior fiscal year and
some cases appealed within a particular fiscal year may not reach appellate disposition
until a subsequent fiscal year. Nonetheless, the numbers of appeals dispositions reported
on a fiscal-year basis correspond closely to proportions of appeals received and are large
enough to permit drawing some conclusions about the effect of the appeals opportunity
when a requester chooses to use that process.

29 DEPARTMENT OF JUSTICE HANDBOOK FOR AGENCY ANNUAL FREEDOM OF INFORMATION ACT REPORTS P. 55,

Oct. 29, 2013, http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf.
18

Table 7: Government-Wide FOIA Appeals Dispositions (FY 2010 - FY 2012)
Year

FY 2010
FY 2011
FY 2012
Total

Affirmed
in Full
4,350
4,640
5,268
14,258

Affirmed
in Part
4,317
1,740
1,892
7,949

Reversed
in Full
1,936
1,516
1,809
5,261

Other 30

Total

8,978

36,446

3,370
2,788
2,820

Derived from: foia.gov

13,973
10,684
11,789

As Table 7 reflects, in fiscal year 2010, 13,973 appeals were disposed of government
wide, as reflected in Table 8 In fiscal year 2011, the number was 10,684, and in fiscal year
2012, 11,789. Of those, 1936 or 14% in fiscal 2010, 1516 or 14% in fiscal 2011, and 1809
or 15% in fiscal 2012 were complete reversals of the initial agency decision. Of the roughly
85% that were not completely reversed in the three-fiscal-year period, 14,258 or 46%
were affirmed in full, 7,949 or 25% were affirmed only in part, and 8,978 or 29% were
disposed of on procedural grounds. These cases total 31,185 over the three fiscal years for
an average of 10,395 requests per year that had a potential need for post-appeal dispute
resolution, i.e., the request, at least in part, remained unfulfilled. This compares to 14,494
such cases in a three-year period examined in the 1987 ACUS study, or an average of 4,831
per year at that time. 31 This difference is roughly proportional to the difference in the
number of exemption-based denials in the two three-year periods.

While it would be sheer speculation to suggest in what portion of these cases the
requester has an interest in pursuing the request further, the crudest measure would be to
identify the number of cases in which a requester who has received an appeals
determination chooses to file suit under the Act. Of course this number would miss all
requesters who remain interested in pursuing their requests but, for a variety of possible
reasons, are deterred from suing. Even setting aside that group of requesters, which is
likely to be quite large, there is no wholly accurate way for determining whether filed FOIA
suits have been filed by requesters who have received an appeal determination. Some
requesters file suit after the expiration of the 20-day time limit on initial requests without a
determination having been issued and some file suit after expiration of the 20-day time
limit on an appealed request without an appeal determination having been issued. Court
dockets in many cases, whether through the content of the complaint or otherwise, do not
30 The category "Other" includes cases in which the agency "neither affirms nor reverses (either

entirely or partially) the initial request determination, but rather closes the appeal for other
reasons (e.g., the request was in litigation, the appeal was a duplicate appeal, the appeal was
premature, etc.)." DEPARTMENT OF JUSTICE HANDBOOK FOR AGENCY ANNUAL FREEDOM OF INFORMATION ACT
REPORTS: http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf at 14.
31 1987 ACUS Study at 9.
19

reveal consistently whether the suit proceeds on the basis of "constructive exhaustion"
because of the expiration of a time limit or whether the suit follows an appeals
determination. While in most cases that reach the point of a merits decision, even if only a
decision on a motion for summary judgment, the fact of an appeals determination would be
noted in the order and opinion, but those cases are relatively few. Nonetheless, the scale of
cases that have been pursued fully through the agency appeals process and leave the
requester with a request unfulfilled, at least in part, are the most highly processed set of
cases from the total of all requests received. To better understand the possible significance
of that pool of cases for dispute resolution purposes, it is necessary to turn to the use of the
formal judicial remedy.
IV. FOIA LITIGATION
The annual number of lawsuits under FOIA is low relative to the number of FOIA
requests filed annually, and low even relative to the number of requests that remain in
potential dispute after appeals determinations in agencies. Using the most recent threeyear average annual number of post-appeal requests remaining in that category, as
calculated above, the comparison is 10,395 cases to 371 suits. Thus, treating as one pool
for comparison only those cases that have received an agency determination on appeal that
is at least in part adverse to the requester, the proportion of cases filed to prospective cases
is 1 in 28. 32 Among other possible shortcomings, this calculation excludes constructive
denial cases eligible for suit because of the expiration of either the initial or appellate 20day time limit. An important question, nonetheless, is why cases that have been contested
to appeal by requesters and have generally received a meaningful degree of processing on
the merits in agencies as initial requests and appeals, though not fully granted, lead to so
few suits.
In some respects, the question is similar to that of why there is such a sharp drop off
between initial determinations that have denied records to requesters and the number of
administrative appeals taken from those denials. Undoubtedly, there is a behavioral
dimension to the question that can only be answered by empirical inquiry addressed to a
properly constructed sample of individual FOIA users, which as noted earlier, is beyond the
scope of this study. But unlike the low rate of usage of the relatively low-cost appeals
process, there are significant barriers to undertaking a suit in federal district court. Those
are important to consider, but first it is helpful to get a broader picture of FOIA suits
generally. That picture is formed in this study with data from three sources: The
Administrative Office of the U.S. Courts (AOUSC), the Inter-university Consortium for
32 Using essentially the same methodology for then-most-recent three-year period, the 1987 ACUS

study identified a ratio of 1 in 10. Id. at 9.

20

Political and Social Research (ICPSR)/National Archive of Criminal Justice Database
(NACJD) depository “Civil Terminations Sections of the Federal Court Cases: Integrated
Data Base series, 2007-2011,” and the Transactional Records Access Clearinghouse (TRAC)
foiaproject.org.
A. District Courts

1. Caseload Data

A starting point is the number of FOIA cases filed in federal district court each year.
The Administrative Office of the United States Courts tracks Freedom of Information cases
under one of the “nature of suit” codes 33 it uses in tracking the overall federal civil docket.
AOUSC publishes statistical data like that shown in Table 9, below, for all civil cases and for
some subcategories of those cases. FOIA cases, however, are not broken out in any
published form. AOUSC provided the author with the FOIA-specific data from which Tables
8, 9, and 10 were constructed. Table 8 shows the number of FOIA cases filed and the
number of FOIA cases terminated annually from FY 2000 through FY 2013 in all federal
district courts.
Table 8: FOIA Cases Filed and Terminated, U.S. District Courts (FY 2000 – 2013)
Fiscal
Year
2000
2001
2002
2003
2004
2005
2006

341
325

Total
Terminations
339
348

FISCAL
YEAR
2007
2008

315

300

2011

Total Filings
271
283
404

312

277
262
410
315

2009
2010
2012

335
280

Total
Terminations
302
298

388

318

Total Filings
314
298
344

288
292
365

2013
382
364
Source: Administrative Office of the U.S. Courts

While the average number of cases filed per year over this 14-year period is 328, the
number has varied considerably from a low of 271 in 2002 to a high of 404 in 2005. The
1987 ACUS study found that for the six-year period 1980 through 1985, the number of case
filings averaged slightly over 500 per year. Government-wide data collection on request
and appeal volume and disposition in that period was less exacting and less readily
accessible than similar data is today. Thus, any close statistical comparison of agency-level
case data in that period with current agency-level data would be dubious. Nevertheless, an
average filing volume of 334 cases per year for the most recent six-year period--a period of
undoubtedly higher agency level initial and appeal denial volume--the decline in filing
33 The code for FOIA cases is 895.

21

volume is notable. The potential for a significantly higher number of FOIA suits has simply
not materialized.34

The pace of FOIA litigation is also a part of the post-agency dispute resolution
picture. The median processing time intervals for cases terminated in the years 2007
through 2013 period are reflected in Table 9 below.

Table 9: Time Intervals Filing to Termination of FOIA Case in District Courts (FY 2007-2013)
Fiscal
Year

Total Cases
Number
of Cases

2007

302

2010

2008
2009
2011
2012
2013

No Court Action

Median
Time
Interval
(months)

Number
of Cases

8.3

89

9.4

76

292

10.0

82

364

9.2

298
288
318
365

9.6
9.3

10.5

83
106
89

116

Court Action

Median
Time
Interval
(months)

7.0
7.3
7.8
8.3
7.7
6.4
6.1

Before Pretrial
Median
Number of
Time
Cases
Interval in
(months)
209

9.7

185

10.0

220

10.0

192
188
192
236

9.0
9.9
9.3

11.5

During or After Pretrial
Median
Number
Time
of Cases
Interval in
(months)
16

13.2

25

13.1

16
16
18
38
28

11.7
11.5
14.1
12.6
12.3

Source: Administrative Office of the U.S. Courts 35

Over the seven-year period, 2007-2013, median time from filing to termination has
ranged from a low of 8.3 months to a high of 10.5 months, an interval range roughly
comparable to that found in the 1987 ACUS study. 36 Over the years 2007-2013, using a
calculating period ending March 31, rather than September 30, the median processing
times for all civil cases in federal districts courts were 7.4 9.7, 8.2, 8.2, 7.9, 6.8, and 8.4
months, respectively. 37Thus, in this most general characteristic, FOIA suits do not vary
widely from all civil suits. In other respects, discussed later, they do. But most observers,
34 Over the 14-year period covered by Table 8, there are a total of 4,592 filings and a total of 4,478

terminations, producing a small gross backlog in the period of 114 cases or only 2%. Thus, while
there is clearly considerable variance in filings over time, some of which may arguably be related to
volume of requests, there are no dramatic trends. In the three most recent years, however, total
filing volume has been roughly 10% above the longer-term average.
35 E-mail from Wendell Skidgel, Senior Attorney Advisor, Public Access and Records Management
Division, Administrative Office of the United States Courts, to author (December 16, 2013) (on file
with author).
36 See 1987 ACUS Study.
37 "Statistical Table Archive," Administrative Office of the U.S. Courts,
http://www.uscourts.gov/Statistics/StatisticalTablesForTheFederalJudiciary/StatisticalTables_Arc
hive.aspx
22

and certainly many requesters, nonetheless view a judicial processing time of 8 to 10
months, after what may have been a similarly lengthy period during agency processing, to
be contrary to the goals of FOIA. There is little point in rehearsing here the extensive
commentary on the FOIA delay and the harms to the policy objectives of the Act that flow
from it. It is sufficient at this point to note that the need to resort to the judicial remedy and
the time consumed in the judicial process exacerbate the consequences of delay in agency
FOIA process.
Another notable general characteristic of FOIA filings in federal district court is the
high proportion of cases filed in the United States District Court for the District of
Columbia. This proportion is explained, in substantial part, by the venue provision of FOIA
that permits any action to be brought in the District Court for the District of Columbia
(DDC). Thus as Congress presumably intended, this court has become not only the federal
district court with the heaviest FOIA caseload, but also is thereby perceived as the most
expert FOIA court and the one whose decision are informally considered the most
authoritative.
Table 10: District Courts Ranked by Annual Number of FOIA Filings (Top Five Districts FY
2007–13)

FY 2007
DDC (142)
SDNY (16)
ED Cal (10)
SD Fla (9)
ND Ill (8)

All Districts
(335)
42.4% DDC

FY 2008
DDC (121)
ND Cal (15)
SDNY (10
CD Cal (8)
SD Cal (8)

All Districts
(280)
43.2% DDC

FY 2009
DDC (116)
SDNY (25)
ND Cal (8)
MD Fla (9)
WD Wash (8)
All Districts
(314)
36.9% DDC

FY 2010
DDC (124)
SDNY (22)
ND Cal (19)
ND Ill (10)
SD Fla (8)

All Districts
(298)
41.6% DDC

FY 2011
DDC (148)
ND Cal(28)
SDNY (20)
WD Wash (15)
ED Va (9)

FY 2012
DDC (150)
SDNY (26)
ND Cal (14)
WD Wash (10)
ND Ill (8)

FY 2013
DDC (176)
ND Cal (19)
CD Cal (15)
SDNY (13)
ED Va (11)

All Districts
All Districts
All Districts
(388)
(344)
(382)
38.1% DDC
43.6% DDC
46.0% DDC
Source: Administrative Office of U.S. Courts

As Table 10 reflects, of a total of 2,341 FOIA filings from 2007 through 2013, 977, or 41.7%
were filed in the District Court for the District of Columbia. In any of the represented years,
while the next four highest districts varied, none was close to the DDC. The next highest
percentage occurred in the Southern District of New York in 2008 at 8% of total filings, and
at the fifth level the most prominent district was never more than 6% of the DDC’s average
FOIA caseload during this time period.
2. FOIA Case Dispositions

Examining the FOIA judicial caseload more substantively is a major practical
challenge. While, as noted above, the Administrative Office of the United States Courts
(AOUSC) tracks FOIA cases with a separate code in its tracking of the overall federal civil
docket, many of the more substantive parts of the tracking are not routinely made public
23

routinely. Data as to case “disposition” and “judgment for” were not provided to the author
because those are not “required” elements of data entry and are not “validated.” 38 That
data is, however, archived through an arrangement between the Federal Judicial Center
and ICPSR. ICPSR serves as a repository for the full body of court statistical data from 1979
to 2011, which is now held subject to a “restricted access” protocol administered by the
National Archive of Criminal Justice. 39 The author sought and received approval for access
to the data for the fiscal years 2007 through 2011, the five most recent years for which that
data is available. From the coding in this data, the author derived the information set out in
Table 11 below.

38 See supra note 35.

39 Inter-university Consortium for Political and Social Research.
http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies?archive=ICPSR&sortBy=7
(listing available coded and restricted studies, five of which the author obtained and using the
statistical program, Stata, derived the data shown in Table 11.) There have been studies generally
confirming the statistical reliability of most of the FJC/ICPSR databases. See Gillian K. Hadfield,
Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and
Organizational Litigants in the Disposition of Federal Civil Cases, 57 Stan. L. Rev. 1275, 1281-85
(2005).

24

Table 11: Dispositions in Terminated Cases
YEAR

2007 Terminations /
302 Cases
DDC

All Other Districts
Total District Courts

2008 Terminations /
295 Cases
DDC
All Other Districts
Total District Courts

2009 Terminations /
288 Cases
DDC
All Other Districts
Total District Courts
2010 Terminations /
292 Cases
DDC
All Other Districts
Total District Courts

2011 Terminations /
318 Cases
DDC
All Other Districts
Total District Courts

Disposition

Dismissal Judgment Other
73

Judgment

For
Defendant

For
Plaintiff

For
Both

Plaintiff

RepresUnknown ented

Pro
Se

38
111

54

49
103

57

32

4

5

143

109
86
195

32
107

116

53

15

46

4

6

128

113
69
182

71

42
113

113
83
196

50
26
76

10
6
16

44
23
67

6
3
9

4
2
6

119
87
206

116
89
205

57
26
83

124
88

36
29

3
12

36
29

4
0

4
2

119
97

104
106

59
22

143
82

42
27

18
6

43
27

2
3

7
0

151
84

122
96

81
18

70
186

212

225

35
88

65

69

31
88

33
65

6
21

24
70

15

65

24

70

3
7

0
4

4

5

0
5

3
9

6

82
225

84
212

216

210

7
235
218
Derived from: FJC/ICPSR

75

81

99

The utility of this summary is, however, quite limited. The “disposition” entry is
extremely broad, covering a range of “dismissals” (for example, want of prosecution, lack of
jurisdiction, voluntary dismissal, and settled) and separates those from a wide range of
“judgments” (on default, on consent, on motion before trial and jury verdict). Apart from
those, the category of “others” includes such dispositions as “transfers to other districts,”
“statistical closings,” and apparently “unknowns.” Only in 2007, however, were “others” a
substantial portion of the recorded dispositions. If the two broad categories “dismissal” and
“judgment” are used, disregarding “others,” for FOIA cases terminated in the district of D.C.,
“dismissals” occurred 71.8%40 of FOIA in the years 2007 through 2011, and judgments
40 For 2007-2011, DDC dismissal percentages were 57.5, 68.6, 69.3, 77.5 and 77.3, respectively.

25

occurred in 29.2%41 of FOIA cases terminated in that period. Again excluding the “other”
category, the division in dispositions across all other district courts did not vary much from
those in the district of D.C. In all other districts combined, dismissals occurred in the
68.5%42 of terminated FOIA cases, and judgments occurred 31.5%43. When all district
courts are combined, dismissals occurred in 69.9% of cases terminated, and judgments
occurred 30.1%, with the proportions between dismissals and judgments being identical in
the last two years of the five-year period. If the first year of the five-year period, which
contains what appears to be an aberrationally large number of “others” is excluded, the
overall proportion is 68.7% dismissals and 31.3% judgments.
The modest utility of the summary is that it loosely confirms the widely understood
fact that most FOIA suits are terminated prior to any formal judgment. Nonetheless,
because many of the most substantive of these dismissals (e.g., settlements between the
requester/plaintiff and the agency for full or partial records disclosure) do not produce
court records reflecting deep levels of detail as to the resolution of the dispute, they
provide little meaningful insight. Court records are even more opaque when the resolution
of the dispute is a voluntary dismissal for which there is no substantive detail.

There is similarly limited utility in the distribution of cases by “judgment for,” but
the data itself is more problematic. There is a very high number of “unknown” in each year.
This is in part explained by the fact that for the cases in which there is no “judgment”
coded, there would be no “judgment for.” But even limiting the base to those cases in
which there is a count in the judgment column, the total number of judgments for
“defendant,” “plaintiff,” and “both” does not equal the number of cases in any year or in any
court grouping of the number of cases in which “judgment” is coded. Given that the
differences there are, however, relatively small, the “judgment for” category may well be
roughly accurate. Using only the cases in which a “judgment for” is shown, the percentages
of cases, for all district courts in which judgment was for the defendant were 84.4%, 84.3%,
81.7%, 86.7% and 85.4%, for the years 2007 through 2011, respectively. The percentages
of cases in which judgment was for the plaintiffs were 9.1%, 4.8%, 11.0%, 5.3%, and 6.1%
for the same years, respectively. The percentages in which judgment was for “both” were
6.5%, 10.8%, 7.3%, 8.0%, and 8.5%, also for the same years, respectively.
Again, this confirms a widely understood fact, namely, defendant agencies prevail
either fully or in part in most FOIA cases in which a court enters a judgment. This fact,
however, has more significance for alternative approaches to dispute resolution than other
FOIA litigation characteristics. Whatever the reasons for the high agency success rate in
41 For 2007-2011, DDC dismissal percentages were 42.5, 31.4, 30.7, 22.5 and 22.7, respectively.

42 For 2007-2011, “Other” judgment percentages were 43.7, 66.7, 76.1, 75.2 and 75.2, respectively.
43 For 2007-2011, “Other” dismissal percentages were 56.3, 33.3, 23.9, 24.8 and 24.8, respectively.

26

FOIA litigation, in those cases that agencies choose to contest to the point of judgment, the
high success rate may disincline agencies from engaging in an alternative dispute
resolution process.

At the heart of most commentary on the judicial affirmance rates for agency FOIA
decisions is the seeming departure by the courts from the review standard set in the Act,
namely de novo review. This form of review in principle essentially instructs the court to
treat the issue(s) presented on review without deference to the agency decision. Whatever
the intent of Congress in choosing this review standard for FOIA cases, it is well
documented, as noted above, that FOIA review is generally quite deferential. 44 It is
certainly possible that more intensive judicial review of agency FOIA decisions would have
the effect of heightening compliance at the agency level, thus arguably reducing the need
for post-agency dispute resolution process. This study, however, is centered on dispute
resolution techniques that could serve as alternatives to the judicial process, and thus any
measure aimed at increasing the intensity of judicial review is beyond its scope.

The overall FOIA judicial case disposition picture is also affected, in ways that are
difficult to assess, by the high proportion of FOIA plaintiffs who proceed “pro se” as
opposed to being represented by counsel. Table 11 reflects that pro se plaintiffs accounted
for 35.4%, 38.3%, 28.8%, 27.8%, and 31.2% of the FOIA caseload, respectively, in the years
2007 through 2011. The combined number of pro se cases over the five-year period is 483
of 1495 cases, or 32.3%. The fact that nearly a third of FOIA cases were brought pro se
would seem to have some significance in considering the use of alternative dispute
resolution processes. Passing the question of whether the merits in pro se cases are higher
or lower than in the cases of represented plaintiffs, an instinctive reaction might be that,
almost by definition, an alternative to court would be attractive for the unrepresented
plaintiff. But this instinct may have to be tempered by consideration of the nature of the
alternative process. The more formal it is or the more adversarial it is, the lesser the
advantage for the pro se participant. Nevertheless, the presence of this plaintiff
characteristic in a significant proportion of FOIA cases must be accounted for in
considering alternative processes.
One further derivative of the FJC/ICPSR data is reflected in Table 12 below. This
table contains mean and median processing times for cases closed in the 2007 through
2011 period broken out by the times in the District Court for D.C., then for all other district
courts and finally the times for D.C. and all other districts combined.

44 See supra, notes 14 and 21 and accompanying text.

27

Table 12: Filing to Termination Interval Means and Medians in Months
Court

FY 2007

FY 2008

Year
FY 2009

DDC

Mean
18.7

Median
12.2

Mean
12.7

Median
9.9

Mean
17.8

Median
12.8

ALL

13.5

9.5

11.3

8.4

14.4

9.8

All Other
District
Courts

10.1

8.1

11.0

8.8

12.1

8.4

FY 2010

Mean
16.6
12.8

Median
12.8
8.4

FY 2011

Mean
15.1
11.4

Median
10.2

14.5
10.2
12.8
Derived from: FJC/ICPSR

7.8
9.4

Two characteristics may be noted. First, mean processing time exceeds median processing
time by roughly three to four months over the five-year period represented here. That
difference suggests that outlier cases are more prominent above than below the median.
Second, both mean and median processing time in the District Court for the District of
Columbia is longer than that for the “all other” districts group, sometime exceeding it
substantially. As noted earlier, however, for most FOIA requesters neither of these
characteristics is likely to be important. Rather, it is the total amount of time that can be
consumed in the sequential administrative and judicial processes that is the concern.

The Transactional Records Access Clearinghouse (TRAC) is a research center at
Syracuse University, “established in 1989 in order to obtain detailed information from
various federal agencies under the FOIA.” 45 TRAC operates “The FOIA Project,” the goal of
which is “to provide the public with timely and complete information about . . . FOIA . . .
now includes detailed information on every case that challenges government withholding
in federal court.”46 Each day the FOIA Project searches the federal court’s Public Access to
Court Electronic Records (PACER) website for cases under the Freedom of Information Act
and downloads and makes available on its website the docket entries and corresponding
documents, including some additional documents supplied to The FOIA Project by
parties. 47 TRAC’s FOIA database provides, in a user-friendly and non-fee form, the
documents available through PACER and adds to that some content of its own. The FOIA
Project is thus a resource that provides convenient access to a level of FOIA lawsuit data
that is not available through AOUSC or FJC/ICPSR.

For the purpose of this study, the author undertook, along with a law student
research assistant, to review the TRAC/PACER FOIA lawsuit data for cases closed in fiscal
years 2010 through 2013, the four most recent full fiscal years. The TRAC entries for 1,402
45 See The FOIA Project, About TRAC, http://foiaproject.org/about/about-trac.
46 See The FOIA Project, About the FOIA Project, http://foiaproject.org/about.

47 See The FOIA Project, About FOIA Lawsuit Data, http://foiaproject.org/about/data.

28

closed cases were reviewed. 48 While this review added some elements to the AOUSC and
ICPSR data presented earlier, the picture in terms of suit characteristics that may bear on
alternative dispute resolution approaches remains relatively opaque. In most cases,
pleadings, of course, present the claims and responses of the parties in considerable detail.
The problem, however, lies in finding meaningful ways to code the detail beyond further
formal substantive and procedural categorizations. Just as the factual presentation of a
FOIA case in a published court opinion is a highly distilled account of the case details, the
pleadings and other case records that become part of the docket are an entirely undistilled
account of the case—except in one respect. What is missing, of course, are the underlying
motives, concerns, and strategies that caused an escalation of the dispute from the agency
to court and then what actually drove resolution in the large number of cases that are
terminated in some agreed form.

This is not a critique of the TRAC/PACER database, which provides a wealth of FOIA
detailed case information in a highly accessible form. For example, reliably compiling the
identity of FOIA plaintiffs and defendants can be surprising cumbersome. The
TRAC/PACER FOIA database is helpful for this purpose. Just as certain agencies receive
high numbers of requests and appeals from initial denials, certain agencies are sued under
FOIA at notably high rates. A list of the most frequently sued agencies from FY 2009
through FY 2013, derived from the TRAC FOIA Project is shown in Table 13, below.

48 The TRAC FOIA Project seeks to remove from its database cases that are miscoded in the PACER

system.

29

Table 13: Fourteen Agencies Most Frequently Sued under FOIA Based Upon Filings (FY 2009
– FY 2013)
Number of FOIA Cases Filed Against Agency

Agencies

FY
2009

FY
2010

FY
2011

FY
2012

FY
2013

CIA

20

10

16

15

11

Department of the Interior (Interior)
Department of Transportation
(Transportation)

19

16

11

14

Agriculture

5

Defense

43
10

Environmental Protection Agency

6

8

37
2
8

11
39
1
9

9

41
6

10
37
26
8

7

13

46

48

Health & Human Services

23

19

23

19

Justice

53

82

109

108

5

9

8

11

20

24

Homeland Security

35

Labor

7

Social Security

4

36
6

50
10

3

State

17

22

19

20

Veterans Affairs

5

5

9

7

Treasury

37

Total Filings for 14 Agencies

284

Total Filings

314

32
288
298

19
335

323

18
81
9

23
7

326

388
344
382
Derived from: TRAC foiaproject.org

These fourteen agencies accounted for 90% of all FOIA court filings from fiscal 2009
through fiscal 2013. With the exception of the EEOC, each of the agencies in the mostappeals-received table (Table 4) appears in this list. Additionally, the Department of
Interior, the Department of Transportation, and the Social Security Administration appear.
The Department of Justice, the Department of Homeland Security, and the Department of
Defense, accounted for 25%, 12% and 11%, respectively, of all filings in this period. 49

The litigant picture becomes fuller with the addition, from the TRAC/PACER
database, of the frequencies with which certain parties are plaintiffs in FOIA cases. In FOIA
cases terminated in the four fiscal years 2010-2013, seven advocacy organizations were
plaintiff in 10 or more suits. In order of number of suits, those organizations are: Judicial
Watch with 91, Public Employees for Environmental Responsibility (PEER) with 30;
Citizens for Responsibility and Ethics in Washington (CREW) with 24; American Small

49 The Department of Justice not only is the most frequently sued agency, but also is the agency that,

in its representational capacity, defends most agencies in their FOIA litigation.
30

Business League (ASBL) with 19; Natural Resources Defense Council (NRDC) with 17;
Electronic Frontier Foundation (EFF) with 14; and Electronic Privacy Information Center
(EPIC) with 11. Several other organizations had FOIA suit numbers just below these; the
American Civil Liberties Union (ACLU), if the suits of its separate chapters were combined,
had 30 suits total. Two individuals had 10 or more suits in the same period. For
organizations like Judicial Watch, PEER, and CREW, their suit numbers approach the
number of suits in the same period against some agencies that are among the most
frequently sued, as shown in Table 13. The fact that there are frequent "repeat-player"
organizational plaintiffs, like those noted, can have a number of implications for dispute
resolution that are addressed later in the study.

Repeat-player plaintiffs also include other sorts of organizations, businesses, law
firms, media outlets, and FOIA-requester websites, like muckrock.org. Sometimes, too,
organizations file suit in the name of an individual, rather than the organization, having the
effect (though not necessarily the purpose) of making it harder to identify the frequency of
their suits. These numbers thin out at a point after which it may be more accurate to refer
to these requesters not so much as repeat players, but as experienced plaintiffs, though not
necessarily with the level of FOIA sophistication of some of the most prominent advocacy
organization plaintiffs.
3. Attorney Fee and Cost Awards 50

The TRAC/PACER database also provides some insight into attorney fees and costs
awarded pursuant to court order or negotiated settlement in FOIA cases. The Department
of Justice’s annual FOIA Litigation and Compliance Reports are also a source for fee award
information. 51 Because these Justice Department reports provide a listing of cases in which
fees or costs were awarded, it is a ready source from which to compile this information, but
it is not necessarily complete. The TRAC/PACER data requires the scouring of individual
case dockets for recorded fee awards. It is more cumbersome to use for this purpose, but
includes some awards that the Justice Department reports do not, and vice versa. Even a
50 Both with respect to attorney fees and costs, as well as government litigation costs, the available

data generally includes combined amounts attributable to district court and appellate court
litigation (and on rare occasion, even Supreme Court litigation).
51 A FOIA provision requires the Justice Department to report annually to Congress on the agency’s
efforts to promote FOIA compliance, as well as FOIA litigation. See 5 U.S.C. § 552(e) (2006 & Supp.
IV 2010). The Department of Justice’s Office of Information Policy (OIP) publishes these annual
FOIA reports, and they are currently available on the agency’s website for fiscal years 1998 through
2012. See, e.g., UNITED STATES DEPARTMENT OF JUSTICE, THE DEPARTMENT OF JUSTICE FREEDOM OF
INFORMATION LITIGATION AND COMPLIANCE REPORT 2012 [hereinafter generally “DEPARTMENT OF JUSTICE
FOIA LITIGATION AND COMPLIANCE REPORT”], http://www.justice.gov/oip/lc-rpt-2012/2012-liticomp-rpt.pdf.
31

combination of the results from both is likely not complete. 52 Using the two sources
together, nonetheless, provides the best-available picture of the number and amounts of
fees and costs obtained by plaintiffs in FOIA cases.

Table 14 shows the attorney fees and cost amount derived from filings associated
with the TRAC/PACER data for 1,402 FOIA cases closed in the fiscal years 2010 through
2013.
Table 14: Attorney Fee and Cost Awards in FOIA Litigation Based on TRAC/PACER Data
(Fiscal Years 2010 – 2013)
Fiscal
Year

Number of
Cases with
Fee Awards

2011

13

2010
2012
2013

Award
Total

10

$236,911
$267,415

29

$1,313,742

6

$55,084

Average
Award
(per case)

Highest
Award
(per case)

Lowest
Award
(per case)

Median
Award
(per case)

$20,570

$121,000

$36

$7,000

$9,181

$24,500

$23,691
$45,301

$86,885

$321,014

$300

$20,021

$419

$15,000

$350

$8,117

Table 15 shows the fees awarded in federal FOIA litigation in calendar years 2008 through
2012, as reported in the Justice Department’s FOIA Litigation and Compliance Reports for
those years. 53

Table 15: Attorney Fee and Cost Awards in FOIA Litigation Based on DOJ Annual Reports
(Calendar Years 2008 – 2012)
Calendar
Year
2008

2009
2010
2011
2012

Number of
Cases with
Fee Awards

Award Total

5

$83,466

6

$233,198

1

$455

4

14

$61,200

$1,473,299

Average
Award
(per case)

$38,866
$16,693
$455

$15,300

$105,236

Highest
Award
(per case)

$233,198
$83,466
$455

$61,200

$383,218

Lowest
Award
(per case)

$1,293

Median
Award
(per case)

$350
$455
$36

$1,216

52 There simply is a high risk of error in compiling these numbers because of the variety and

$40,560
$14,282
$455

$6,227

$56,557

sometimes unpredictable ways in which they appear as a matter of record.
53 See UNITED STATES DEPARTMENT OF JUSTICE, DEPARTMENT OF JUSTICE FOIA LITIGATION AND COMPLIANCE
REPORT, List of FOIA Cases in Which a Decision was Rendered, Calendar Years 2008 to 2012,
http://www.justice.gov/oip/reports.html#s1.
32

Undoubtedly, some of the difference between the fee awards reflected in Table 18
and 19 are simply attributable to different time periods. While the calculating periods for
the two sources are different, the periods overlap considerably. In each year, around 350
FOIA cases were closed. The total number of awards taken from the TRAC/PACER data
review is nearly twice that of the Department of Justice annual FOIA reports, though
because of the size of the reported awards the average amount of the awards from those
reports is almost double the amount of the awards from the TRAC/PACER data.

The seemingly most anomalous feature of both the Department of Justice and the
TRAC/PACER data is the far greater number of awards and their size in calendar and fiscal
2012, respectively, compared to any of the other years. Because both compilations,
however, contain this quantitative feature in roughly the same degree in roughly
comparable periods, it may simply be that the period was an anomalous one.54

Certainly it would be a mistake to draw precise award-number and dollar-based
conclusions from either of these two compilations. But they do rather clearly demonstrate
that the number of fee awards from the total pool of closed FOIA cases is small. This fact
probably serves in a sense to confirm that the number of cases in which a plaintiff
"prevails," and is thereby eligible for attorney fees, is a small portion of the total number of
cases closed.

Fee awards, though relatively infrequent, when large could have meaningful impact
on agency budgets as a result of a change brought about through a provision of the OPEN
Government Act of 2007. Formerly, FOIA fee awards were paid from the Judgment Fund of
the Treasury, but under the 2007 amendments to FOIA these fees must now be paid from
the annual appropriations of the agency. 55This change may become a factor in agency case
processing and agency amenability to dispute resolution alternatives.
4. Agency Litigation Costs

The other cost factor for the government in FOIA disputes is the actual costs
incurred in litigation. This cost is reported on much the same basis as agency reporting of
request processing costs. The Department of Justice instruction for reporting litigation
costs simply reads:

54 The TRAC/PACER based data includes the full 2013 fiscal year, which shows much lower

numbers of awards in that period than in fiscal 2012. The Department of Justice report for calendar
2013 is not yet available. If it, too, shows similarly lower numbers for calendar 2013, the conclusion
that fiscal and calendar 2012 were, in fact, just anomalous periods may be justified.
55 5 U.S.C. 552(a)(4)(E)(ii).
33

Provide the sum of all costs expended by the agency in litigating FOIA
requests. Include salaries of personnel involved in FOIA litigation, litigation
overhead, and any other FOIA litigation-related expenses. 56

Most of the cost for agencies is, of course, absorbed by the Department of Justice in its
representational capacity, and therefore accounts, in part, for the outsized costs attributed
to Justice.
Table 16: Litigation Costs of Agencies with Highest Volume of FOIA Requests (FY 2010 –
2012)
Litigation Costs in Dollars

Agencies

FY 2010

FY 2011

FY 2012

Agriculture

1,392,291

718,613

721,937

CIA

1,800,000

1,890,000

1,900,000

2,682

1,110

320

Archives
Defense
EEOC

Environmental Protection Agency
Health & Human Services
Homeland Security
Justice
Labor

Social Security

0

4,243,616

0

4,118,975

461,468

457,450

1,985,762

1,956,380

485,000

497,973

917,246

7,545,248
29,134

0

3,396,612
416,100

239,775

1,847,314

9,494,587

9,804,330

38,507

1,884,874
497,973
84,080

State

721,594

777,588

964,757

Veterans Affairs

41,481

189,869

96,524

Treasury

Total for 14 Agencies

Total for All Reporting Agencies

31,854

19,657,376
22,186,782

102,089
20,482,916

200,365
21,815,186

23,359,047 24,160,095
Derived from: foia.gov

As a general matter, insight into the dispute resolution process provided by this data
is no greater than that provided by the agency request processing cost data. One might
observe, however, that while government-wide litigation costs on an annual basis are less
than 10% of government-wide request processing costs, that cost is devoted to only a small
number of cases per year as opposed to the well over 600,000 requests per year to which
the processing cost figures apply. If the total litigation cost of $69,705,924 for the three
56 DEPARTMENT OF JUSTICE HANDBOOK FOR AGENCY ANNUAL FREEDOM OF INFORMATION ACT REPORTS P. 55,

Oct. 29, 2013, http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf
34

fiscal years shown in Table 8 were divided by the 975 FOIA cases terminated in the district
courts in the same three fiscal years shown in Table 12 above, the reported litigation cost
to the government would be $71,499 per case. Certainly, these costs are not distributed
equally across these cases, but it is not possible from the reports available to associate the
undifferentiated costs with particular cases. Also, while this calculation uses as the
denominator the number of cases terminated in the district courts in the period, there
undoubtedly are Courts of Appeals cases (and possibly Supreme Court cases) that make up
part of the numerator. The cost reports, however, do not distinguish court level either.
5. Exemptions Asserted in Litigation

The Justice Department’s FOIA Litigation and Compliance Reports and the review of
cases from the TRAC/PACER database both serve as resources for estimating the types and
frequency of exemptions asserted in FOIA lawsuits. For the cases reviewed from the
TRAC/PACER database, as noted earlier, the filings associated with the docket entries must
be examined to determine the exemption asserted, and in many cases it is possible to
identify the primary exemption at issue. In the FOIA Litigation and Compliance Reports, the
exemptions are explicitly noted, but there is a risk of over-count because a case is entered
for each year in which a "decision" was rendered. For example, for a case in which the
defendant's motion for summary judgment was denied in one year, but in which the
plaintiff's motion for summary judgment was denied in part and granted in part in a
subsequent year, the exemptions at issue would be entered for both years. Additionally, the
Justice Department reports include any exemption asserted in the pleadings, leading to
cases in which multiple exemptions are counted, while the review in the study based on the
TRAC/PACER cases sought to identify the primary exemption at issue.

Nonetheless, within these limits, the two sources provide a sense of the frequency at
which particular exemption claims are litigated. Table 17 contains the data from the Justice
Department reports; and Table 18, the data from the TRAC/PACER case review.

35

Table 17: Exemptions Asserted in Litigation Based on Justice Department Annual Reports
(Calendar Years 2008 – 2012)
Exemption

Exemption 1
Exemption 2
Exemption 3
Exemption 4
Exemption 5
Exemption 6
Exemption 7
Exemption 8
Exemption 9

CY 2009

CY 2010

CY 2011

CY 2012

Total

41

33

20

12

123

56

32

54

212

12
34
19
44

118
0
0

9

17
11
36

112
1
0

16
44
13
39
48
94
1
0

25
41
15
54

108
1
0

66

189
72

207
496
3
0

Table 18: Exemptions Asserted in Litigation Based on TRAC/PACER closed cases (Fiscal
Years 2010 – 2013)
Exemption

Exemption 1
Exemption 2
Exemption 3
Exemption 4
Exemption 5
Exemption 6
Exemption 7
Exemption 8
Exemption 9

FY 2010

FY 2011

FY 2012

FY 2013

Total

39
39
41
0
0

24
36
31
1
0

63
74
70
1
0

61
57
66
2
0

187
206
208
4
0

11
17
21
18

3
12
19
14

15
22
31
28

16
19
26
20

45
70
97
80

Perhaps most significantly, both sources reflect general proportionality with the
exemptions relied upon in agency appeal dispositions, as shown in Appendix C, Table C-4. 57
Some exemption claims initially relied upon may be dropped in litigation of particular
cases, but the overall patterns are not markedly different. 58
57 Appendix C contains tables showing agency dispositions of requests for fee waivers and
expedited processing. These requests can become an issue in litigation. The filings associated with
the TRAC/PACER data for cases closed in fiscal 2010 through 2013 show that fee-waivers denial
claims were presented in 170 of the 1402 cases reviewed and that expedited processing claims
were presented in 140 of those cases. The resolution of those claims in the judicial proceeding was
clear in very few of the cases.
58 There is, however, some delay effect from changes in law or practice. For example, the shift away
from Exemption 2 (perhaps toward other exemptions) at the agency level as a product of Milner
will not be seen in closed case data immediately.

36

B. Courts of Appeal

District Court FOIA decisions that are appealed and lead to merits decisions from
Court of Appeals are, of course, an important part of the body of case law that has
developed under FOIA since its enactment, especially decisions from the District of
Columbia Circuit. Table 19 shows all FOIA terminations in the United States Courts of
Appeals for the fourteen fiscal years from 2000 to 2013.
Table 19: Courts of Appeals Decisions in FOIA Appeals Terminated (FY 2000 – 2013)
Year
Ending
Sept 30

Total Appeals Terminated
Terminated on Procedural
Grounds

2000
2001

80
77

30
29

2005
2006

66
74

26
27

2002
2003
2004
2007
2008
2009
2010
2011
2012
2013

72
63
58
76
70
75
58
67
51
48

23
18
18
31
24
30
30
20
21
16

Terminated on the Merits

Total

Affirmed /
Enforced

Dismissed

Reversed

Consolidations

Remanded Other

49
45
40

39
33
30

1
1
2

3
6
6

5
2
2

1
1

50
48

40
47
45
46
45
28
47
30
32

38
38

2
2

28
27

1
2

36
31
34

3
2

21
40
20

2

22

4
4

4
8
6
7
6
6
5
4

2

5
8
3
2
1
1
2
4

3
1
2
2
2
3
1

1
9
Source: Administrative Office of the U.S. Courts

1
3

1

A total of 887 FOIA appellate cases were terminated in that 14-year period, or an
average of 68 cases per year. Of those 887 cases, 560 or 63.1% of those, or on average 43
cases per year, were terminated on the merits, as opposed to procedural grounds. In 415
cases, or 74.1% of the cases terminated on the merits, the appellate decision was an
affirmance. As reflected in Table 8, in the same 14-year period, 4,478 FOIA cases were
terminated in the district courts. While the appeals courts case terminations in those fiscal
years are not the same set of cases that were terminated in the district courts in those
years, the 14-year totals for the same years from the district and appeals courts provide a
reasonable approximation of the proportion of FOIA district court terminations that are
appealed. In that period, there were 887 appeals terminations or 19.2% of the 4478
district court terminations. In sum, using this methodology, FOIA cases appear to be
appealed at roughly a 19% rate; of those appealed, roughly 63% are decided on the merits,
and roughly 74% of those are affirmed. The characteristics of the appeals from district
court, however, are not examined in this study because once the judicial process has been
37

invoked in a FOIA case, the methods and opportunities for informal case resolution become
a judicial matter, not an administrative one. 59
V. THE INTERVIEWS

Because of the many shortcomings of the available hard data regarding FOIA
requests, disputes, and their resolution, some of the deepest insight into these matters
resides with individuals and organizations that use FOIA and the agency officials who
process FOIA requests. In many ways, the most critical part of this study is the
understanding obtained from the numerous experts who were interviewed60 by, or who
attended a group session 61 with the author. The goal of the interviews was to gain an
understanding of the varying dimensions of the FOIA process that might suggest ways that
FOIA dispute resolution efforts should be targeted. In this section, these dimensions are
first identified and then related to dispute resolution processes. All the views and
conclusions expressed in this report, however, are those of the author and represent a
distillation of the range of perspectives offered in the interviews. These are not necessarily
the views of any particular interviewee or group session attendee.
A. Requesters Types: Motivation

As noted at the outset, “requesters” vary widely in their motivations, resources and
sophistication. Motivation is a dimension that is difficult to capture. For example, some
requesters have what might be characterized as a personal curiosity about a government

59 Courts do provide mechanisms to facilitate the informal resolution of cases that have entered the

judicial process, court-administered mediation programs being the most common. The operation
and level of success in these programs is beyond the scope of this study. Measures in the District
Court for the District of Columbia and in the U.S. Court of Appeals for the District of Columbia seem
to point in opposite directions. District court local rule 16.3(b) excludes FOIA cases from the list of
cases in which the parties have a "duty to confer" as part of the scheduling conference. Local rule
16.3(c), which lists the matters the parties must discuss, includes "whether the case could benefit
from the Court's alternative dispute resolution procedure."
https://www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/2010_MARCH_LOCAL_R
ULES_REVISED_July2011_July2013.pdf at pp.37-38. The rule does not preclude the use ADR in FOIA
cases; it simply excludes them from the mandatory duty to confer.
In contrast, in January 2013, the Court of Appeals, began a pilot program to require attempt
mediation in two classes of case, one being FOIA cases. The number of FOIA cases that have
followed this requirement is too small from which to draw any meaningful conclusions, but the
Electronic Privacy Information Center reports recently reaching a settlement under the D.C. Circuit
mediation program. "EPIC Settles FOIA Case, Obtains Body Scanner Radiation Fact Sheets,"
available at http://epic.org/2014/01/epic-settles-foia-case-obtains.html.
60 See list of interviewees in Appendix B.
61 See list of attendees of group sessions, also in Appendix B.
38

matter -- for lack of a better term, “curious” requesters. Among them, that curiosity might
be deep and enduring, and even grow with time, or it might be fanciful and passing, but
without extensive empirical work the intensity of that curiosity is an unknown.

The first step, making a request, is relatively easy and low cost. If curious
requesters get what they sought, they have no need for “dispute resolution” because there
is no dispute. Recognizing, however, the dramatic drop-off between denied or partially
denied requests and administrative appeals, and assuming the curious requesters are at
least equally if not more highly represented in the drop-off, they generally do not take the
second step, the administrative appeal. Thus, lacking any other measure to gauge the
intensity of their interest, one might reasonably conclude that those curious requesters
who appeal demonstrate a commitment to the process that distinguishes them significantly
from most denied curious requesters. The fact that their motivation is only curiosity does
not, however, diminish the significance of their requests under the policies of the Act. Yet it
may affect their further participation in the dispute resolution process if their appeal is
denied in whole or part.

Other requesters have what could be as described an incidental, targeted
motivation. Such requesters find themselves in positions in which it would be desirable to
have access to some agency records for an immediate and limited purpose. "Incidental"
requesters, again for lack of a better term, could be individuals, businesses, or other
organizations. They could, for example, be individuals or businesses pursuing a
government status or benefit or parties in engaged in litigation whether with the
government or otherwise. It is not the particular reason that is important, but that
motivation is focused and relatively short-term. At times, requests from researchers or
media representatives might fit this category of motivation as well. However broad this
category, the particularity of the need and its immediacy suggests that such requesters
would appeal full or partial denials at higher rates than merely "curious" requesters, but
that sense, too, is anecdotal, not empirical. 62 Nonetheless, administrative appeals from such
requesters, like all appeals, are part of the low number of requests pursued after initial
denials. The likelihood of further participation in the dispute resolution process may, if
higher for incidental requesters than for curious requesters, depend on factors other than
initial motivation, such as some measure of the actual “value” of the information to the
requester.
Still other requesters have what might be characterized as a mission-driven
motivation. These requesters are primarily advocacy organizations and could be said also

62 There does not appear to be any careful empirical study of requester behavior, across the range

of requester types, in their use of the FOIA process at various stages. This could be a useful
undertaking in assessing approaches to FOIA dispute resolution.
39

to include at least some media requesters. Frequently, the work of one or more agencies is
closely related to the ongoing mission that motivates such requests. The importance of this
relationship or mission-commitment would suggest a greater likelihood of an appeal from
an initial denial than from a curious or incidental requester and perhaps a greater
likelihood of further participation in the dispute resolution process. The fact, that many
mission-driven requesters end up as repeat plaintiffs in the FOIA litigation process
provides quasi-empirical support for viewing them, in terms of motivation, as the most
likely participants in the post-agency dispute resolution process.
B. Requester Types: Resources and Sophistication

Concededly, limiting requester-motivation types to these three—curious, incidental,
and mission-driven—is somewhat of an oversimplification; and even among these, the
lines tend to blur. Nonetheless, the utility of this categorization lies in providing at least a
minimal framework from which to consider the layering of factors that appear ultimately to
affect recourse to post-agency dispute resolution processes. The two most frequently
identified further factors are requester financial resources and requester sophistication.
And, in fact, the two seem interrelated. Individual curious requesters could have strong
financial resources, but there is no reason to assume that they are in any better position
than the average citizen to afford the various costs of federal court litigation. Incidental
requesters, with a monetarily, or sometimes personally, valuable interest at stake may see
litigation costs differently than the merely curious requester, but it is more likely to be the
corporate/business requester who has the resources to weigh litigation meaningfully on a
cost-benefit basis. Mission-driven requesters are not necessarily stronger in terms of
financial resources than curious or incidental requesters. Yet they often have what might
be viewed as a substitute for financial resources. Mission-driven requesters frequently
have a level of experience and sophistication for engaging in meaningful cost-benefit
analysis in deciding whether or not to pursue litigation, as well as the internal expertise to
engage in it. The latter strength, in fact, may be the most significant factor of all. Having
FOIA litigation expertise or being able to afford retaining it affects not only the choice of
whether to pursue post-agency process, but also the quality of the engagement in that
process.
C. Agency Engagement

The picture on the agency side has some similarities and some differences. The
decision by any requester to resort to litigation under the Act is, ordinarily, preceded,
except in cases of delay or other procedural issues, by an agency decision to deny a request
for access, at least in part. Described mechanically, that decision would always require a
determination within the agency whether an exemption to disclosure applies, and if so,
then arguably whether discretion, where available, should be exercised to permit
40

disclosure. Agency officials responsible for these decisions, however, operate under
constraints that make the mechanical description quite superficial. These constraints, of
course, vary among agencies both in degree and in kind.

First, limited resources are available to an agency (or are made available) for FOIA.
This constraint is one that virtually everyone inside and outside government agrees is a
problem, but also one that no one is inclined to critique with much specificity—that is,
asserting what level and quality of resources would be enough. Most observers would
agree that there is a high level of compliance with the Act in the agencies, despite limited
resources, particularly for the mass of relatively routine requests that nonetheless can be
tedious and consume resources heavily. Agency officials on the front lines of this sort of
work are generally highly professional and often under-appreciated and under-recognized.

Further constraints can also be said to be related to resources, though with a
somewhat different character. First, “control” over agency records lies with the agency
offices that perform the primary substantive missions of the agencies. It is easy for those
offices to see any FOIA processing demands as taking away resources from other agency
matters. Second, and somewhat more subtly, the very decision to be made—disclosure or
not—can sometimes be seen by these offices, whether rightly or wrongly, as using agency
resources to produce a harmful or embarrassing outcome for the agency or for particular
agency officials. The point here is not whether the product of these constraints is actual
non-compliance with the Act, but rather that the complex of requester motivations in using
the Act and its dispute resolution processes has corollaries in agency decision-making. A
decision to issue a final denial at the agency level is, in effect, a decision to risk (however
small or large the risk) engaging in litigation.
D. Intractable and “Tractable” Issues

Sometimes the ultimate value of, or consequences from, a decision is commensurate
between requester and the agency. In other words, the denial of access to particular
records would pose just as significant a loss to the requester, given the motivation for the
request, as the granting of access would have to the agency, or at least to important agency
officials. This category of case has relatively little potential for an informal post-agency
resolution. Both parties probably see the case as requiring a judicial decision. These cases,
of course, cannot always be confidently identified from a general description. A typical
case, however, is likely to be one involving a mission-driven requester who has learned of
(or suspects) the possible existence of a document in its area of interest that would help it
understand an agency policy or practice or that otherwise might be newsworthy or bear
upon the performance of high official in the agency. The status of the record under the Act
might give each side a colorable argument, and the stakes are too high for either side to
want other than a judicial resolution, in part for its precedential value. The mission-driven
41

requester is likely to have both the resources and expertise to bring the case, and the
government at least equal capacity to defend it.

A possible diversion of the case might occur if, before its decision to make a final
denial on appeal, the agency consults with the Office of Information Policy in the
Department of Justice. The guidance provided by OIP in such consultations fulfills part of
the statutory duty of the Attorney General to encourage compliance with the Act. It is
commonly assumed this consultation is the primary occasion on which the Department
could express concern about the legal defensibility of a contemplated agency decision if it
has such concern. Because the content of this consultation is considered privileged, there is
no publicly available record of its impact in the decisional process. A common, though not
empirically informed, perception is that these consultations with OIP, sometimes including
participation from the Civil Division, may urge reconsideration of the contemplated denial,
but rarely lead to a conclusion on the part of Justice that the denial, if made, would not be
defended if a suit were filed.
Thus, some cases just seem destined for court. Even though these essentially
intractable cases may be among the most important FOIA cases in terms of the goals of the
Act, they are probably not the most fruitful targets for alternative dispute resolution. But
they implicitly suggest case types where there is potential for alternative approaches; and
those can be described in part by the absence of characteristics in the litigation-destined
case.
E. Dispute Resolution "Typologies"

There is a rich and interesting body of ADR literature that develops typologies of
disputes that may best lend themselves to resolution short of litigation. 63 These typologies
depend heavily on the substantive areas of law involved and the form of the potential
resolution, e.g. a dollar-amount settlement. 64The FOIA dispute is not easily placed among
those types. The "value" of the thing at issue is not monetary (though at times it can relate
to a monetary dispute) and the parties’ respective needs for obtaining or protecting the
information are difficult to quantify. But unique features of FOIA cases may lend
themselves to at least partial informal resolution and thereby may minimize or eliminate
the need to resort to court.
63 See generally Nancy Neslund, Dispute Resolution: A Matrix of Mechanisms, 1990 J. Disp. Resol. 217

(1990), available at http://scholarship.law.missouri.edu/jdr/vol1990/iss2/1.
64 See generally International Institute for Conflict Prevention and Resolution, ADR Suitability Guide,
available at
http://www.cpradr.org/Portals/0/Resources/ADR%20Tools/Tools/cpr%20suitability%20guide.p
df
42

Some of the FOIA case features that most strongly suggest dispute resolution
potential and their association with types of requester can be identified. A merely curious,
but not well resourced or experienced requester, may make a request that would
commonly be recognized as having little chance of success, but if that requester is the
unusual one who presses the matter to appeal and loses, the experience (bad from the
requester’s point of view) may tempt the filing of a suit. Lacking empirical data as to what
might push the requester one way or the other, it nonetheless seems reasonable that a
confirmation from a neutral source (external to the agency) as to the weakness of the
requester’s case may end the matter. It would not be possible to say that a suit has been
avoided, but it seems relatively obvious that the neutral had real potential to affect the
choice.

Similarly, the core of the dispute that may exist between a requester and an agency
not infrequently centers on the scope of the request and the question of the volume and
type of records that may be responsive. In some respects this issue presents the true
uniqueness of the FOIA dispute. One party, the agency, may know fairly well what the
requester is interested in and roughly what records may be responsive, though not always.
The other party, particularly an unsophisticated requester, knows the topic of interest
(even if not always expressed clearly) but would probably not know much about the
records that would be responsive. Since the 1996 FOIA amendments, the Act has sought to
provide a degree of relief from this problem through encouraging agency-requester
communications aimed at focusing the request; 65 and since the OPEN Government Act of
2007, the required agency position of "FOIA Public Liaison" has, at least theoretically,
added a resource for this purpose. The problem of differential knowledge, however, breeds
suspicion and mistrust on the part of many requesters. When agency-requester
communications break down, ultimately leading to a denial through the appeal level,
engagement of a neutral may be able to close the gap in understanding by conveying
information about the general nature and volume of responsive records, and may lead to a
solution short of litigation. The neutral role in this situation may benefit the sophisticated
requester, as well as the unsophisticated, because it may provide some guidance as to the
likelihood of success in litigation.
It is quite well understood, particularly among sophisticated requesters, that filing
suit changes the nature of the dispute in just that way. Once a suit is filed, the agency
dispute resolution effort can change dramatically. Generally, the suit promptly raises the
level of attention to the matter in the agency. Sometimes the mere filing of the suit leads to
a production of some or all of the requested records. In most cases, that is not an
immediate result, but through the filing of the complaint and the receipt of the answer, the
range of procedural moves and party conversations increase. That may lead, in turn, to the
65 5 U.S.C. 552(a)(6)(B)(ii).

43

requester-plaintiff beginning to develop a more detailed picture of what is at issue and the
likelihood of success from pushing forward with the case. Reaching the procedural point
that would require the production of a Vaughn66 index, adds to the assessable information
that was not normally available at the agency-level process. It is also the information that
may lead to settlement, not infrequently the requester-plaintiff agreeing to a dismissal with
prejudice. However useful this unfolding process may be for the party with the resources
and sophistication to bring suit, it is not available to the under-resourced and/or
unsophisticated requester. A significant number of unsophisticated requesters bring suit,
pro se litigants in particular, but their action is unlikely to produce a meaningful and
effective engagement with counsel for the agency. For the well-resourced and
sophisticated requester, there may be no attractive informal alternative to the use of the
suit to help frame, narrow and possibly resolve the dispute. The external neutral in the
informal, non-litigation setting, cannot assume there will be the same level of engagement
by the government attorneys that might be expected in court, but a non-judicial neutral
setting aimed at promoting that sort of exchange 67 may have a place, if only for a limited
class of cases.
Neutral assistance with the bedeviling problem of delay in FOIA cases also warrants
consideration. Fully recognized judicially since CREW v. FEC, 68 a requester will be deemed
to have exhausted agency level process, unless the agency makes a substantive
“determination” on the request within the applicable 20-day time limit. For some
requesters, passing a time period that will be deemed "constructive exhaustion" is, short of
obtaining the requested records, the desired result, in that a suit can be brought
immediately. For the more typical requester, reaching a point in the agency process when
the exhaustion requirement has been satisfied makes suit an option, but an option that
might willingly be postponed through meaningful engagement with the agency to obtain a
better understanding of the cause for the delay and the prospects for obtaining a
reasonably prompt resolution.

Requests for fee waiver and for expedited processing are two further areas where
the engagement of a neutral may be useful, but in a somewhat different sense. While fee
waiver denials and expedited request denials can become issues in FOIA litigation, they
would not normally be the exclusive basis for a suit. The underlying substantive request for
access will be part of the litigation. Fee waiver issues may lend themselves particularly well
to engagement of a neutral. Depending on the resources of a requester and the potential
amount of the fees that might be imposed for a request, if a fee waiver has been denied or
not timely decided by the agency, the cost facing the requester may force a choice between

66 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

67 For example, agency cooperation through providing an informal or draft Vaughn index.
68 711 F.3d 180, 189 (D.C. Cir. 2013).

44

dropping the request or filing suit. Because a fee waiver denial or delay may make the
agency suspect in the eyes of a requester, and because the fee waiver issue rarely has any
relationship to the mission of the agency, engagement of a neutral may help resolve this
threshold issue in a way that makes interchange between the parties for resolving the
underlying substantive issue easier. To the extent, however, that an agency might be
inclined to use fee waiver denials as a form of docket control in an understaffed FOIA
support setting, fee waiver becomes an issue of considerable importance to the agency and
perhaps one more difficult to resolve informally.
VI. EXISTING FOIA ALTERNATIVE DISPUTE RESOLUTION STRUCTURE
A. Department of Justice: Office of Information Policy

As noted earlier, FOIA requires the Attorney General to report annually the efforts of
the Department of Justice to encourage agency compliance with FOIA. For many years the
Department, through the Office of Information Policy (OIP) and its predecessor offices, had
included in the statutorily required report information regarding what the Office referred
to as an “ombudsman function." In 1993, it described the function as follows:
[W]e maintain what we call our "FOIA Counselor Service," through which we
handle more than 2,000 calls for advice and assistance on a variety of FOIArelated matters each year. I emphasize this because I want to call your
attention to a related service provided by our office--known as our FOIA
"ombudsman" function -- in which we are available to assist FOIA requesters
who believe that the agencies processing their FOIA requests are operating
contrary to, or under a misunderstanding of, applicable legal requirements.
Sometimes, we've found, simply facilitating better communication between
FOIA requesters and agency FOIA personnel can clear up problems in the
process. 69

The scale of this function can be traced through references to it in the Annual Compliance
Reports. For example, in the 1998 report, the performance of this function was
summarized as follows:
OIP . . . in its "FOIA Ombudsman" capacity . . . responded to several
complaints received directly from members of the public who were
concerned that an agency had failed to comply with the requirements of the

69 FOIA Update, Vol. XIV, No. 3 1993 (presentation made by OIP Co-Director Daniel J. Metcalfe at the

National Press Club's celebration of Freedom of Information Day), available at
http://www.justice.gov/oip/foia_updates/Vol_XIV_3/page5.htm.
45

Act. In all such instances involving a concern of agency noncompliance, the
matter was discussed with the agency and, wherever appropriate, a
recommendation was made regarding the steps needed to be taken by the
agency in order to bring it into proper compliance. Additionally, OIP
responded to 315 written inquiries from members of the public seeking
information regarding the basic operation of the Act or related matters, as
well as to innumerable such inquiries received by telephone. 70
The report continued over the years in a similar form with some variation in the number of
complaints and written inquires. Beginning in 2002, in addition to listing those numbers,
the reports noted, "The number of written inquiries received . . . continued to be smaller
than in recent years, due largely to the increased availability of information that is now
accessible to the public through the Justice Department's FOIA Web site."
In 2007, after passage of the OPEN Government Act creating the Office of
Government Information Services, the report ceased referring to the function as one of
"Ombudsman," but has continued to note numbers of complaints and written inquiries it
receives. In 2008, OIP reported receiving "no written inquiries from members of the
public. In 2009, OIP reported handling 13 written complaints from members of the public.
In 2010, OIP reported handling 17 "matters" from the public, 20 matters in 2011, and 19
matters in 2012.

It is clear from these reports that OIP has receded, at least somewhat, from the role
it played in assisting individual requesters, whether characterized as an ombuds function,
or otherwise. This could be attributable to a decline in requester interest in using an office
in the Department of Justice as a source of neutral assistance in dealing with agency
request processing, but is just as likely attributable to the statutory establishment of the
Office of Government Information Services, specifically to perform a FOIA ombuds role.
B. NARA: Office of Government Information Services

The Office of Government Information Services (OGIS) was created by the OPEN
Government Act of 2007 and became operational in September 2009. OGIS is established
as an entity within the National Archives and Records Administration. The Act requires
OGIS, which refers to itself as the FOIA Ombudsman, 71 to (1) review agency policies and
procedures and compliance with FOIA, (2) recommend policy changes to Congress and the
70 Available at http://www.justice.gov/oip/98rep.htm. The reports from 1998 forward are

available from year-base links at: http://www.justice.gov/oip/reports.html under the heading
“Department of Justice FOIA Litigation and Compliance Reports.”
71 The FOIA Ombudsman, About the FOIA Ombudsman: Information and Advice,
http://blogs.archives.gov/foiablog/about-2.
46

President to improve the administration of FOIA and (3) offer mediation services to resolve
disputes between persons making requests under this section and administrative agencies
as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue
advisory opinions if mediation has not resolved the dispute. 72

Unlike the Department of Justice, which is charged with a FOIA compliance
promotion function and a responsibility to represent agencies in suits arising under FOIA,
OGIS has no agency representation responsibility. In creating a new FOIA compliancepromotion function through the establishment of OGIS, and its placement in the National
Archive and Records Administration (NARA), Congress clearly intended a distinct and
separate role for OGIS. Congress, however, left in place the Attorney General's compliance
responsibilities carried out primarily through OIP. Thus, OGIS and OIP co-exist with some
overlap of functions. 73 But apart from full separation from the FOIA litigation defense
function, OGIS uniquely has been assigned statutory responsibility to provide mediation
services to resolve disputes between agencies and FOIA requesters as an alternative to
litigation.74 It is the OGIS mediation function that is most relevant to this study, although
72 5 U.S.C. § 552(h).

73 At times, there has been an uneasy relationship between OPI and OGIS. Some aspects of this

problem are well summarized in a Congressional Research Service Report:
As noted earlier in this report, DOJ is charged with ensuring that agencies comply with
FOIA, and performs this mission by issuing guidance and conducting training. DOJ is also
the department that defends federal agencies in FOIA-related litigation. OGIS, in contrast,
is charged with reviewing agencies’ compliance with FOIA, recommending ways to
improve FOIA administration, and mediating FOIA disputes that emerge between agencies
and the public. OGIS has defined itself as a “FOIA ombudsman,” seeking to facilitate “clear,
direct communication” where it “has been lacking.”
Congress, at times, has encountered executive-branch resistance to FOIA amendments.
OGIS’s inception provides one such example. The OPEN Government Act of 2007 (P.L. 110175) created OGIS to review FOIA policies and agency compliance as well as to
recommend ways to improve FOIA. Pursuant to the OPEN Government Act, the office was
to be placed within NARA. President George W. Bush’s FY2009 budget recommendations,
however, sought a repeal of the creation of OGIS and, instead, sought OGIS’s enacted
responsibilities be assigned to the Department of Justice. In creating OGIS, legislators had
purposefully placed it outside of the Department of Justice, which represents agencies
sued by FOIA requesters.

The 111th Congress responded to the Administration’s recommendation by appropriating
$1 million for OGIS and explicitly requiring its establishment within NARA. OGIS began
operations within NARA in September 2009. Subsequent appropriations for OGIS have
come from NARA’s general appropriation and have not appeared as a separate line-item.
See Wendy Ginsberg, R41933, The Freedom of Information Act (FOIA): Background, Legislation,
and Policy Issues at 16 (January 23, 2014) (internal citations omitted), available at
http://www.hsdl.org/?view&did=749606.
74
Senator Leahy's office issued a release regarding his letter to Attorney General Holder
concerning a Justice Department reference to its "Ombudsman" function:
47

effective exercise of its review and recommendation functions has the potential to reduce
FOIA disputes and, in turn, FOIA litigation.

The list of OGIS functions suggests a scope of responsibility that would entail a large
staff. The reality is quite different. Since the end of its first year of operation, OGIS has had a
staff of six: a Director, an Assistant Director, an Attorney Advisor, three Program Analyst
Managers, and a Staff Assistant. The limited staff resources must be spread across its three
statutory functions. The entire budget for the Office for the four fiscal years 2010 through
2013 has averaged just over one million dollars per year, and generally has been declining:
$1.2 million (FY 2010), $1.6 million (FY 2011), $1.0 million (FY 2012), and $ 0.92 million
(FY 2013). 75 The budget increase in FY 2011 is attributable to OGIS's move to its current
office location and its purchase and implementation of a new electronic case management
system. 76 The budget has also been significantly smaller than the cost estimated by the
Congressional Budget Office in reviewing the bill that, in substantially similar form, became
the OPEN Government Act of 2007. 77
The Justice Department recently noticed publicly its proposed modifications to its Privacy Act and
Freedom of Information Act system of records. The modifications included several references to
the Office of Information Policy acting in the role of an “ombudsman” in disputes between federal
agencies and individuals who submit FOIA requests. However, legislation authored by Leahy and
Cornyn in 2007 – the OPEN Government Act – created the Office of Government Information
Services within the National Archives and Records Administration to expressly fulfill the role of
FOIA Ombudsman.

"As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal
is inconsistent with of the plain language of that law and with our intent,” wrote Leahy and
Cornyn. “We are also concerned that the proposed modification to the Department’s records
system will create unnecessary confusion for agencies and requesters alike, regarding how FOIA
disputes are to be resolved within the Federal Government. We urge the Department to reconsider
the proposed modification to its records system.”

“Leahy, Cornyn Urge DOJ To Clarify Department’s Position On FOIA Ombudsman”
http://www.leahy.senate.gov/press/leahy-cornyn-urge-doj-to-clarify-departments-positionon-foia-ombudsman.
75 E-mail from Miriam Nisbet, Director, Office of Government Information Services, to author
(January 16, 2014) (on file with author).
76 Id.
77 The CBO cost estimate for that bill read as follows:

Section 11 would establish an Office of Government Information Services within the
Administrative Conference of the United States. The office would review FOIA policies and
practices, make recommendations, offer mediation services, and conduct audits of agency’s FOIA
programs.
Based on information from DOJ and the cost of similar offices, CBO estimates that implementing
this provision would cost $7 million annually for additional staff to conduct audits of FOIA
programs. CBO expects that the new agency would take about two years to reach that level of effort.
We estimate that operations of the new office would cost $27 million over the 2008– 2012 period,
assuming appropriation of the necessary amounts.

S. Rep. No. 110-59 at 11, accompanying S. 849, Senate Committee on the Judiciary.
48

Table 20 below summarizes broadly the OGIS mediation caseload over the first four
full fiscal years of operation, though as a result of changes in its case management system
in FY 2011, complete data in a consistent form is not available for all four fiscal years.
Table 20: OGIS Caseload (FY 2010 – 2013)
OGIS Caseload

Cases Received

Cases Closed
Quick Hits
No. of Agencies

Top Five Agencies79

From Individuals
From Organizations
From Agencies
Delay
Full/Partial Denial
Other Issues 82
Stage in Agency
Before request
After request
After
determination
After appeal filed

After appeal
determination
Exemptions (range)
Privacy Act Cases

FY 2010

FY 2011

FY 2012

FY 2013

Justice-38%

Justice-25%

Justice-22%

Justice -28%

391

320
N/A
24

373

357
314 78
42

361
354
314
37

508
497
225
36

Veterans Affairs-9%
Defense-7%

Homeland Security-12%
Veterans Affairs-7%

Homeland Security-15%
Veterans Affairs-8%

Homeland Security-21%
Treasury-6%

N/A

78% 80
16%

N/A

N/A

Archives-5%
Defense-7%
Homeland Security-5% Health & Human Services-3%

N/A
N/A
N/A
N/A
N/A
N/A

2%
N/A 81
N/A
N/A
5%

28%
40%
32%
1%

10%

15%

26%
9%

N/A
N/A

SSA-8%
Defense-5%

20%

Veterans Affairs-6%
USPS-5%

31%
9%
33%

N/A
1-8
1-7
97
50
39
Derived from data provided by the Office of Government Information Services83

OGIS's implementation of its review, recommendations, and mediation functions are
described in its annual reports and reviewed in a 2013 Government Accountability Office

78 Between June 2010, when OGIS began tracking telephone and email Quick Hits, and the end of FY

2011, the Office helped nearly 500 callers and emailers.
79 The frequency with which matters from particular agencies were brought to OGIS's attention
was affected, in part, by those agencies' including a reference to OGIS in their final denial letters.
80 These percentages were available for FY 2011 and considered accurate by OGIS, but OGIS is not
confident that that data for the later years is comparable because of possible inconsistencies in how
the information may have been added to its new case management system.
81 In FY 2011, cases involving delays and denials accounted for 56% of OGIS's caseload.
82 Other issues include FOIA processing issues, fees, or policy matters.
83 E-mail from Christa Lemelin, Management and Program Analyst, Office of Government
Information Services, to author (January 9, 2014) (on file with author).
49

28%
46%
26%
1%
28%
10%
9%

45%

1-7
85

(GAO) report.84 With respect to its mediation function, some of the richest detail is
presented in those reports anecdotally. Those accounts suggest OGIS handles a range of
challenging disputes with skill and often much success. The GAO report, while reviewing
the mechanics of the mediation function, faulted OGIS for failing to have metrics for
measuring success in mediation. 85 It then used a categorization of its own, in a sample of
44 cases, to measure outcomes in terms of success. GAO concluded, by its measure, the
outcome in 22 of the 44 cases to be successful. 86

Determining success in mediation is notoriously difficult. It is often measured by
whether the process has produced a consensual resolution of "the dispute." In the FOIA
area, however, simply facilitating some steps in a conversation between a requester and an
agency may sometimes lead to a subsequent resolution that did not require the continued
engagement of the "mediator." The Archivist of the United States responded to GAO
regarding the measurement concern by letter after receiving a draft of the report.87 The
Archivist indicated that issues of measurability are now being considered internally.88 The
present study does not pursue the "measurability" question directly. Rather it seeks to
describe the practical dynamics of the OGIS mediation function that bear generally on its
prospects to accomplish the "alternative dispute resolution" portion of its statutory charge.

Currently, OGIS is open to all comers. Its caseload is determined by whoever
happens to contact the Office. OGIS receives some phone calls and emails from individuals
who have never interacted significantly in any way with a federal agency and who certainly
have never filed a FOIA request. The help many of these individuals seek is modest (e.g.,
where to file, what form to use, etc.) and can be delivered in a single short phone call or
email. Most of these inquiries are opened and closed the same day, and are the ones OGIS
classifies as "Quick Hits." Some of them, however, turn out to be more complicated than
they initially seemed or lead to follow up calls or emails that are more substantive.
Nonetheless, a portion of OGIS's workload falls into the relative straightforward category.
As Table 20 shows, the number of Quick Hits in the first couple of years of OGIS's operation
was around 300. In the most recent year, the number is lower, arguably attributable to
OGIS's use of its website to disseminate broadly the kinds of information that would
typically have led to Quick Hit inquiries. At the same time, however, the number of cases
that are not Quick Hits has increased substantially from FY 2012 to FY 2013.
84 UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, GAO-13-650, FREEDOM OF INFORMATION ACT—

OFFICE OF GOVERNMENT INFORMATION SERVICES HAS BEGUN IMPLEMENTING ITS RESPONSIBILITIES, BUT
FURTHER ACTIONS ARE NEEDED, Sept. 10, 2013, http://www.gao.gov/assets/660/657697.pdf.
85 Id. at 21.
86 Id. at 12.
87 Id. at 26.
88 Id.
50

OGIS has used various terms to label its cases that are not Quick Hits. They have
been referred to variously as ombuds cases, facilitations, or mediations. The meaning
appears to vary based largely on the degree to which OGIS becomes involved substantively.
At one extreme, OGIS may simply make a call on behalf of a requester to an agency to
determine what the cause of delay in a response may be. At the other extreme, OGIS may
become involved as a classical mediator, discussing respective positions with requester
and agency parties and seeking to a promote conversation that will lead to an agreed
resolution. In the latter role, OGIS may communicate to either party informally its own
view on the matter in dispute. While the degree of OGIS's substantive involvement in these
non-Quick Hit cases varies, they all fall under its statutory "mediation" function and will for
the remainder of this study be referred to as mediation cases.

In the field of alternative dispute resolution, some observers view "mediation" as a
relatively precise term of art; others view it as a broad umbrella term with many sub-forms
all aimed at assisting parties to a dispute to reach an agreed resolution, short of formal
adjudication of the dispute. 89 It is in the broader sense the term is used here. Congress,
itself, did not define the term "mediation" in the OPEN Government Act of 2007, 90 and OGIS
appears to have operated under a broad notion of the term.

Without regard to the stage at which a FOIA case may lie in the administrative
process, OGIS may be approached by a requester for assistance. If OGIS sees the case as
requiring more than Quick Hit treatment, it must gather information from the requester.
Depending on the nature of the matter, that information may have to be quite detailed.
Once OGIS believes it has enough information to make preliminary assessment of the case,
it must decide whether the case seems appropriate for an OGIS contact with the subject
agency. From its initial assessment, OGIS may see there is no meaningful likelihood of
success on the request and may communicate that view to the requester, closing the case
on the OGIS docket. 91If it sees the case more positively, it will likely choose to contact the
agency to ascertain the status of the case, and if the agency has taken a position, what that
position is.

This is the first point at which a structural problem in OGIS's statutory mediation
function may appear. The statute does not expressly impose upon agencies a duty to
participate in the OGIS mediation process. For the most part, OGIS appears to have received
cooperation from agencies in responding to its inquiries in connection with its mediation
function. No purpose would be served here by putting too fine a point on the degree of
cooperation because it does not lend itself to precise measurement. The important point is
89 See note 64 and accompanying text.

90 Nor did Congress define the term, “mediation,” in the Administrative Dispute Resolution Act, 5

U.S.C. 571.
91 The requester, however, may not see the case as "closed" and is free to pursue a lawsuit.
51

simply that OGIS depends on agency cooperation, and the incentive for agency cooperation
is not always obvious, given the overall FOIA dispute resolution process. Litigation, for
reasons of cost among others, is clearly not the method generally desired by agencies for
FOIA dispute resolution, but agency success rates in FOIA litigation may to some degree
serve as a disincentive to participate meaningfully in a dispute resolution effort external to
the agency, but short of court.

Of course, disputes that reach OGIS vary widely. Undoubtedly, seeking to help a
requester understand the source of, and possible solution to, delay in an agency response
to a request is likely a simpler matter than carrying out the mediation function when a
requester feels a strong entitlement to a particular record and an agency feels that record
need not be disclosed because of an exemption to the Act. More specifically, for example,
the value of the information to a reporter who is on the verge of breaking a high-profile
story and the value to the agency of, rightly or wrongly, protecting that information (in its
discretion or otherwise) which may cause official embarrassment or perceived harm to the
agency mission are in direct, and possibly irreconcilable conflict. Pure compromise, like
reaching a dollar-amount midpoint in a civil case settlement, is a remote possibility at best.

That remote possibility may reach absolute impossibility if substantive assessment
of the issue(s) requires impartial review of the agency records. As is common to all FOIA
cases, the agency generally knows and the requester may suspect, but generally does not
know, the content of the requested records. Unless the agency chooses to share with OGIS
the contents of the records, OGIS is in the same position as the requester and any OGIS
assessment must depend upon a very general understanding of the records and their
relation to the agency's asserted reason(s) for withholding. OGIS has no authority to obtain
the records, and an agency's incentive to voluntarily provide access to OGIS access would
largely be a function of the value the agency sees in that step to having the dispute resolved
informally and acceptably.

To put it quite simply, OGIS's mediation docket ranges from relatively easy cases to
extremely difficult cases. Its ability to deal effectively with that caseload is in part a
function of staff resources. It handles a large number of mediation cases with an extremely
small staff that is charged not only with the mediation function, but also with the
compliance review and recommendation functions. And it must contend with structural
issues of type just described.
The statutory expression of OGIS's mediation function includes an additional,
discretionary authority. The full statutory provision reads "[OGIS] . . . shall offer mediation
services to resolve disputes between persons making requests under this section and
administrative agencies as a non-exclusive alternative to litigation and, at the discretion of
52

the Office, may issue advisory opinions if mediation has not resolved the dispute. 92" OGIS has
not yet chosen to exercise its advisory opinion authority.
C. Other Agencies: Content-Specific Dispute Resolution

Over time there have been a few instances of information dispute resolution
structures used on a content-specific basis, for example, in connection with the Kennedy
Assassination. 93 Only one continues to operate today on a substantial basis, the Interagency
Security Classification Appeals Panel (ISCAP).

ISCAP was created by Executive Order 1352694 in 2009 and decides individual
challenges to security classification of agency records. ISCAP is made up of senior level
representatives appointed by the Departments of State, Defense, and Justice, the National
Archives, the Office of the Director of National Intelligence, and the National Security
Advisor.

ISCAP offers an alternative process to requests to agencies for records access that
might be denied under Exemption 1. Instead of making a FOIA request to an agency, the
requester can seek from the record-holding agency Mandatory Declassification Review
(MDR) under the Executive Order. To be eligible ultimately for ISCAP review, the requester
must elect to submit to the agency an MDR request rather than a FOIA request. Denials of
requests for information under FOIA will not be reviewed by ISCAP. 95 Under the Executive
Order, if a party makes a request to an agency for MDR, the requester is entitled to appeal
an initial denial within the agency, similar to an appeal from an initial FOIA denial. If the
administrative appeal to the agency is denied, the requester can then appeal the decision to
ISCAP for what will be a final decision, without judicial review. 96
The ISCAP process is, thus, an alternative to a FOIA request for classified
information and the judicial review that would follow a FOIA denial. Its attractiveness to
requesters as an alternative dispute resolution process for this limited category of records
appears to be a function of obtaining a sophisticated classification review external to the
deciding agency. While neither judicial process nor ISCAP process is fast, ISCAP is generally
perceived as somewhat more likely to order declassification of records than a court under
FOIA. A requester may, nevertheless, have reason to bring a FOIA request, and then after
the expiration of any determination time limit be free to bring suit in federal court with the
attendant publicity, though perhaps not as intensive review.
92 5 U.S.C. 552(h)(3).

93 President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No. 102-526,

Section 7, Establishment and Powers of the Assassination Records Review Board.
94 Exec. Order No. 13526, 75 Fed. Reg. 707 (January 5, 2010).
95 Id.
96 Id.
53

The Information Security Oversight Office (ISOO), 97 ISCAP's administrative home, in
its 2012 Annual Report to the President, provides the following summary of MDR process
in agencies:
Agencies received 7,589 initial mandatory declassification review (MDR)
requests and closed 6,533 requests. The average number of days to resolve
each request was 228. . . . Agencies reviewed 372,354 pages under MDR, and
declassified 217,456 pages in their entirety, declassified 86,587 pages in part,
and retained classification of 68,311 pages in their entirety. Agencies
received 368 MDR appeals and closed 321 appeals. The average number of
days to resolve each appeal was 240. . . . Agencies reviewed 10,920 pages on
appeal, and declassified 3,173 pages in their entirety, declassified 3,442
pages in part, and retained classification of 4,305 pages in their entirety. 98

The Report also summarizes ISCAP's FY 2012 action in completing review in 35 of
169 appeals from agency MDR decisions:
In FY 2012, the Panel decided upon 35 MDR appeals, containing a total of 163
documents. The documents within these MDR appeals were classified either
in part or in their entirety. The Panel declassified additional information in
150 documents (92 percent), and affirmed the prior agency classification
decisions in 13 documents (8 percent). Of the 150 documents identified for
additional declassification, the Panel declassified 63 documents (39 percent)
in their entirety and 87 documents (53 percent) in part and affirmed the
remaining classified portions.99

The ISCAP process, thus, stands as an alternative to FOIA processing that has some
attraction to requesters whose interests lie in the area of security classified records, but its
methodic operation may also have costs to requester interests in terms of the time
consumed in the process and the unavailability of judicial review.

97 NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, INFORMATION SECURITY OVERSIGHT OFFICE, ANNUAL

REPORT TO THE PRESIDENT 2012, http://www.archives.gov/isoo/reports/2012-annual-costreport.pdf.
98 Id. at 1.
99 Id. at 20.
54

VII. COMPARATIVE FOIA DISPUTE RESOLUTION
A. International

In 1966, the United States could claim, through the passage of the Freedom of
Information Act, the first national, detailed statutory scheme providing public access to
governmental records. Today, at least 95 nations have "freedom of information" laws.
These countries include the entire developed world and many developing nations. As
would be expected, there are areas of commonality and areas of difference among these
statutes. One area of difference is in the mechanisms used for dispute resolution. In
virtually all, the judiciary plays some role in the ultimate resolution of a dispute; but
procedures alternative to, or at least preliminary to, the courts are used in many nations.
U.S. border-neighbors, Canada and Mexico, have two of the most well respected freedom of
information schemes.
1. Canada

The 1987 Administrative Conference study summarized the Canadian dispute
resolution structure of the 1983 Access to Information Law, which established as an arm of
Parliament, the Office of the "Information Commissioner," an investigative body that issues
non-binding reports on requester complaints and can bring suit on behalf of a requester.
The Commissioner describes the Office today as follows:
The Office of the Information Commissioner investigates complaints about
federal institutions’ handling of access requests. The Information
Commissioner has strong investigative powers to assist her in mediating
between dissatisfied information applicants and government institutions. As
an ombudsperson, the Commissioner may not order a complaint to be
resolved in a particular way, though she may refer a case to the Federal Court
for resolution.

Whenever possible, the Commissioner relies on persuasion to solve disputes,
asking for a Federal Court review only if an individual has been improperly
denied access and a negotiated solution has proved impossible.
When the Office receives a complaint, it confidentially investigates the facts,
allowing both the complainant and the federal organization to present their
cases. This effort may require Office staff to critically analyze and review
policies, procedures, legislation and case law, as well as examining
government records. The Office obtains the information needed to examine
the complaint from all perspectives through meetings or correspondence
with officials and the complainant.
55

In accordance with the information gathered through the investigation, the
Commissioner makes a finding. If, on the conclusion of the investigation, the
finding supports the complainant's complaint, the Commissioner will
facilitate a resolution or make a recommendation for corrective action.
Where there is insufficient evidence to establish that the complaint is
justified, the investigation is concluded and the complainant is advised of the
results in writing.
Most complaints are resolved by mediation. Those that involve important
principles of law or legal interpretation may be referred to court if the
complainant agrees. 100

In 2009, the Office had a staff of approximately 80 employees, and for the fiscal year
ending March 31, 2010, had overall operating expenses of $13,420,475 (CDN) and closed
2117 complaints.
2. Mexico

The Mexican "Federal Transparency and Access to Public Government Information
Law," enacted in 2002, established a complex of administrative structures to implement the
new transparency law. National implementation is supervised by the Federal Institute for
Access to Information (IFAI). The IFAI's five Commissioners are appointed by the
President, subject to Senate approval.
Among many other functions, the IFAI hears and decides appeals from agency
information request denials. It investigates and compiles a response to the appeal that is
binding upon the agency. A requester who is not satisfied with the IFAI's decision on appeal
may seek court review of the case.
A 2006 report from the Annenberg School for Communication at the University of
Pennsylvania noted that:
The proportion of appeals to requests for information [under the new
Mexican law] has been steadily increasing, from 2.6% in 2003 to 3.8% in
2004 and 4.2% to the early part of 2005. By acting on appeals, IFAI sets the
tone for government action as a whole with respect to freedom of
information.
***

100 Office of the Information Commissioner of Canada, What We Do, http://www.oic-

ci.gc.ca/eng/abu-ans_what-we-do_ce-que-nous-faisons.aspx.
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Within [IFAI], appeals are assigned to individual Commissioners for initial
investigation and consideration. If the petition lacks specific details that it
needs, or if it is deficient in some way IFAI has a procedure to assist the
requestor in correcting their [sic] appeal. The responsible Commissioner
then has the power to invite both the requestor and the relevant federal
agency to meet separately with him or her to present their arguments
concerning the pending appeal. The Commissioner is empowered to require
the production of the disputed information for the purpose of resolving the
appeal.
***
During its first 22 months of operation (through April 2005), IFAI received
2,591 appeals from agency determinations on information requests. That
number represents 3.5% of the 74,000 requests submitted to federal
agencies during the same period of time.

***
IFAI’s statistics indicate that the appeal process has resulted in the disclosure
of some or all of the disputed information in 56% of the cases brought before
IFAI. Initial agency non-disclosure determinations were upheld in 16% of the
cases (in the remaining 28% of cases, the appeal did not proceed for a variety
of procedural reasons). 101

The structure and functions of the IFAI and its role in the dispute resolution process
stand in marked contrast to U.S. and Canadian models. The core post-agency adjudicative
role in Mexico rests with the IFAI. The assignment of this role to the IFAI was an important
part of a major national undertaking with respect to access to government information that
is barely 10 years old. Assimilation of the broad access concepts and dispute resolution
scheme of the new law by Mexican administrative agencies and in Mexican culture is still at
an early stage compared to the U.S. and Canadian systems.

101 “The Federal Institute for Access to Public Information in Mexico and a Culture of Transparency,”

available at http://global.asc.upenn.edu/fileLibrary/PDFs/mex_report_fiai06_english.pdf. The
Annenberg report goes on to note:
The IFAI does not possess the legal means to enforce compliance with its orders. That
responsibility resides with the Ministry of Public Function (“SFP”) . . . . If IFAI decides that
documents required by citizens have not been delivered it must send a recommendation
to the SFP. The relationship between IFAI, as overseer of the information request response
process and as arbiter of disputes between the agencies and citizens requesting
information, and the obligated agencies, subject to IFAI’s mandates, is thus moderated by
the SFP.
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3. "Right To Information" (RTI) and Global Comparison

The Global Right To Information Rating System is a project jointly sponsored by
British-based Info Access, "a human rights organization dedicated to promoting and
protecting the right of information access in Europe," and the Canadian-based Centre for
Law and Democracy, "which works to promote, protect and develop . . .human rights which
serve as the foundation . . . democracy, including the right . . . to freedom of . . . access to
information. 102" The rating system has no official status, but includes summaries and
comparisons of information access laws in 95 countries, including the United States,
Canada, and Mexico.

According to the sponsors, the "central idea behind the RTI Rating is to provide RTI
advocates, reformers, legislators and others with a reliable tool for assessing the overall
strength of the legal framework in their country for RTI. The Rating also indicates the
strengths and weaknesses of the legal framework in seven different categories, namely:
Right of Access, Scope, Requesting Procedures, Exceptions and Refusals, Appeals, Sanctions
and Protections, and Promotional Measures. 103
The category of the RTI rating system most relevant to this study is "Appeals,"
referring to an appeal external from a government agency's decision on a request for
access. Evaluation in that category seeks to determine whether the following 14 features
are present in the country's system:
1. The law offers an internal appeal which is simple, free of charge and
completed within clear timelines (20 working days or less).

2. Requesters have the right to lodge an (external) appeal with an
independent administrative oversight body (e.g., an information commission
or ombudsman).
3. The member(s) of the oversight body are appointed in a manner that is
protected against political interference and have security of tenure so they
are protected against arbitrary dismissal (procedurally/substantively) once
appointed.

4. The oversight body reports to and has its budget approved by the
parliament, or other effective mechanisms are in place to protect its financial
independence.
102 Center for Law and Democracy, Global Right to Information Rating, http://www.rti-

rating.org/about.php.
103 Id.

58

5. There are prohibitions on individuals with strong political connections
from being appointed to this body and requirements of professional
expertise.

6. The independent oversight body has the necessary mandate and power to
perform its functions, including to review classified documents and inspect
the premises of public bodies.
7. The decisions of the independent oversight body are binding.

8. In deciding an appeal, the independent oversight body has the power to
order appropriate remedies for the requester, including the declassification
of information.
9. Requesters have the right to lodge a judicial appeal.

10. Appeals to the oversight body (where applicable, or to the judiciary if no
such body exists) are free of charge and do not require legal assistance.

11. The grounds for appeal to the oversight body (where applicable, or to the
judiciary if no such body exists) are broad (including not only refusals to
provide information but also refusals to provide information in the form
requested, administrative silence and other breach of timelines, charging
excessive fees, etc.).
12. Clear procedures, including timelines, are in place for dealing with
external appeals (oversight/judicial).

13. In the appeal process (oversight/judicial) the government bears the
burden of demonstrating that it did not operate in breach of the rules.

14. The external appellate body has the power to impose appropriate
structural measures on the public authority (e.g., to conduct more training or
to engage in better record management). 104

The methodology for rating is described, but there is considerable subjectivity in
applying it. Consequently, the greatest value of the ratings is not in the strength-weakness
rank-order assigned to the 95 countries, but rather in consistently described categories for
assessment and descriptions of national laws within those categories. The points assigned
within those categories, by an RTI-selected expert, like the overall rating system, is
subjective, but the description of the national statutory standards (as opposed to real
world application) appears to be reasonably accurate.
104 Id.

59

The RTI comparison of the post-agency dispute resolution mechanisms for FOIA
cases in the “Appeals" category for the United States, Canada and Mexico is set out in an
excerpted form in Appendix D. The numerical "ratings" in the "Appeals" category for all
countries range from a high of 29 to a low of 0. Mexico is scored 26; Canada 24; and United
States, 14. The primary reason for the generally higher "Appeals" score for Canada and
Mexico appears to be that OGIS (the U.S. "appeals body") neither adjudicates, nor currently
issues, advisory opinions.
B. State FOIA Alternative Dispute Resolution Approaches

The 1987 ACUS study summarized the operations of the two then-most-prominent
state FOIA dispute resolution mechanisms short of litigation--the Connecticut and the New
York systems. 105 Connecticut uses an adjudicative body, the Freedom of Information
Commission, to act on post-agency FOIA disputes. 106New York uses the Open Government
Committee, an ombuds office that issues advisory opinions. 107 The key features of each
described in the 1987 study continue today.

Since 1987, however, more states have established mechanisms to provide
alternatives to litigation in FOIA disputes. Not surprisingly, the mechanisms vary widely in
their structure and operation. Twelve states now have what tend to be characterized as
ombuds offices. 108
Apart from New York, Virginia has the longest operating and one of the most
successful FOIA ombuds offices. The Virginia Freedom of Information Advisory Council, an
arm of the Virginia General Assembly, both responds to general requester inquiries and
issues advisory opinions when sought by a requester or an agency. 109 The advisory
opinions are not binding, but are published. A requester contact that begins as a general
inquiry may develop into a request for an advisory opinion, but it is also possible that a
request for an advisory opinion, once more fully vetted with the parties, may lead to an
informal resolution.
For the most recently reported twelve-month period (ending November 30, 2012)
the Council "fielded" 1408 inquiries. Of these inquiries, five resulted in formal, written
opinions. The Council notes:

105 1987 ACUS Study, supra note 8 at 13.
106 Id. at 14
107 Id. at 15

108 See BallotPedia, States with FOIA Ombudsmen,

http://ballotpedia.org/States_with_FOIA_ombudsmen. See generally Harry Hammitt, Mediation
Without Litigation, available at
http://www.nfoic.org/sites/default/files/hammitt_mediation_without_litigation.pdf.
109 Virginia Freedom of Information Advisory Council,
http://foiacouncil.dls.virginia.gov/Services/welcome.htm.
60

By issuing written opinions, the Council hopes to resolve disputes by
clarifying what the law requires and to guide future practices. In addition to
sending a signed copy of the letter opinion to the requester, written opinions
are posted on the Council's website in chronological order and in a
searchable database.
***
Typically, the Council provides advice over the phone and via e-mail. The
bulk of the inquiries that the Council receives are handled in this manner.
The questions and responses are recorded in a database for the Council's
own use, but are not published on the website as are written advisory
opinions. Questions are often answered on the day of receipt, although
response time may be longer depending on the complexity of the question
and the research required. 110

While there is now a wide range of state experiences with FOIA alternative
dispute resolution mechanisms, there remain questions of comparability with a
national governmental information access system. Issues of scale and subject matter
alone generally lead to the conclusion that a national system cannot simply be
modeled on a successful state scheme. 111 Perhaps the most generalizable lesson that
can be drawn from state FOIA alternative dispute resolution is that most have used
some form of the ombuds model, including some or all of the following: (1) the
provision of informal advice, (2) the offering of mediation services, and (3) the
issuance of advisory opinions. Only Connecticut has chosen the administrative
adjudicative model. Among the states that have acted, the consensus approach is
clear. The principal development in the state environment since the 1987 ACUS
study is not the adoption of new or novel methods, but rather the preponderant and
growing choice of the ombuds model.

110 Id.

111 1987 ACUS Study, supra note 8, at 16.

61

VIII. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions

The idea of "targeting" FOIA ADR strategies may, on first impression, suggest
identifying characteristics of the FOIA dispute resolution process that pose particular
problems and that may lend themselves best to additional efforts toward resolution
without litigation. This approach has some appeal, but ultimately appears to raise more
issues than it resolves. As this study reflects, FOIA disputes can be sliced and diced
(typologized) in many ways. But while those classification schemes may provide useful
insight to the alternative dispute "resolver," they do not meaningfully suggest a set of
"targets" to which particular kinds of tools should be applied. Rather, it appears that the
dispute resolution mechanism itself is ultimately more important. The desirability and
feasibility of primary attention to dispute-mechanism approach as opposed to disputecharacteristic approach is best understood by way of example.
1. Targeting FOIA ADR by Dispute Characteristics

One tempting characteristic to target in FOIA dispute resolution may be the
particular exemption involved. This might lead one to say, for example, that Exemption 1
claims because of their particular delicacy and because of the available ISCAP mechanism
should be excluded from efforts at post-agency alternative dispute resolution. This, in turn,
would be to say that classification review decisions that follow the FOIA process, rather
than the MDR/ISCAP process, should receive no post-agency dispute resolution attention
short of litigation. The notion would be that an agency or agencies reviewing classified
records under FOIA would never be moved to compromise in a setting apart from the
federal courts. An alternative dispute resolver with limited resources for assisting
requesters may find this notion persuasive. If that notion were applied strictly to the
dispute resolution docket, the potential caseload would be reduced by some amount, but
probably not significantly. Exemption 1 claims are presented in only roughly 5% of
litigated cases. And it is possible that the most desired part of a currently classified record
is the portion that is also arguably subject to another exemption claim. The important issue
ultimately in dispute may really lie there rather than in the classification.

Turning to more commonly used exemptions standing alone, such as Exemptions 5,
6, and 7, it is tempting to suggest that the discretion that inheres in applying these
exemptions (however narrow or broad it may be) could be the basis for a mediated
conversation that might lead to a compromise that would avoid litigation. In contrast, those
Exemption 3 statutes that admit of no discretion would have no such potential.
Interestingly, in both categories, as is really the case with almost any exemption claim, the
actual legal applicability of the exemption may be just as much an issue of dispute as any
62

argument as to room for discretionary release. The potential for an informal resolution of
the dispute may simply not be determinable until there is some engagement external to the
agency. And ultimately, the legal issue may be paramount, rather than the exercise of
discretion.
Alternatively, one might think in terms of requester categories. For example,
sophisticated repeat FOIA requesters might be able to participate more knowledgeably in
an external process for dispute resolution than individuals who have filed their first
request. Having sophistication on each side in the alternative process would certainly have
some advantages. But often, it is the sophisticated requesters whose FOIA requests are the
most complex and that are aimed at areas of agency operation that have, from the agency
perspective, the greatest sensitivities, whether clearly warranting an exemption or not.
Likewise, some sophisticated requesters have organizational interests that make getting to
court quickly more important perhaps than an attempt at informal resolution. Sometimes
those interests may be oriented toward public relations or sometimes to a perceived need
to have an issue litigated to a conclusion that will have precedential effect. Even if the
characteristic of requester sophistication has some relevance, as a matter of broader FOIA
policy, it would seem odd to disadvantage, by a scheme of prioritization, the class of
requesters, who because of their lack of sophistication, may need informal assistance the
most.

One might also think of procedural issues as prime targets for FOIA ADR. These
could include processing delay--one of the most common procedural issues--or could
include more standards-oriented issues, such as requests for fee waiver or expedited
processing. These issues can often be critical ones for the requester, but again resource
allocation by prioritization would require a further balancing of important interests, for
example, perhaps differences among types of media representatives. These issues too, for
instance, equitably resolving a delay issue through a significant departure from a first-in,
first-out approach, could sometimes raise more challenging problems for an agency than
re-examining the application of an exemption or the making of a discretionary release.

Examples of the issues raised through a dispute-characteristic approach are
essentially limitless. Recognizing the wide range of differences FOIA disputes can present:
(1) in substantive exemption issues, as well as in processing issues, (2) in requester
sophistication, resources, and motivation, (3) in agency mission and public profile and (4)
in scale and general complexity, one is driven almost inevitably to the conclusion that
"targeting" essentially requires the exercise of a high degree of informed discretion. As a
practical matter, those critical discretionary judgments must come from within the dispute
resolution mechanism itself.
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2. Targeting FOIA ADR by Mechanism Characteristics

The OPEN Government Act of 2007, in a number of ways, particularly through the
creation in each agency of a Chief FOIA Officer and FOIA Public Liaisons, sought to promote
a higher level of compliance and new opportunities for requester dispute resolution within
the agencies. While this study does not examine the effect of these new positions, their
creation was a continuation of congressional effort over many years to increase the stature
of, and accountability for, the internal FOIA process. There are undoubtedly good reasons
to monitor and nurture the development of these internal agency resources. The focus of
the study, however, is on the dispute resolution process external to agencies.

The establishment of OGIS in the same legislation represented a sharp departure
from the traditional U.S. approach to post-agency dispute resolution under FOIA. OGIS
became the institutional center for requester assistance external to the deciding agencies,
short of litigation. Though housed in NARA, and thus a part of the Executive branch, OGIS is
understood to have independent responsibility. Its statutory charge situates it as both a
reviewer of agency policies and practices under FOIA and a vehicle for FOIA dispute
resolution.
OGIS’s authority, however, is not that of an adjudicator. 112 It has the power to
review and recommend changes to policy, and it has the power, statutorily associated with
its mediation function, to issue advisory opinions. That mixture of authority is sound, and
perhaps even essential to an effective role in reducing the need for resort to litigation in
FOIA disputes.

OGIS issuance of "best practices" advice often has the effect of not only enhancing
compliance when followed, but also reducing litigation. As noted early in this study,
changes in agency practices and procedure, both positive and negative, can have important
systemic effects in terms of overall FOIA dispute resolution. But whether agency developed,
OGIS recommended, or congressionally mandated, policy and practice changes may reduce,
but do not eliminate, the need for attention to case-specific disputes. It is in this respect
that, for the purposes of this study, the practical functioning of OGIS is critical.
112 The 1987 ACUS Study examined in some detail the use of a FOIA adjudicatory agency, or in other
words, a FOIA administrative court, for dispute resolution. The cost of such a system if only
supplemental to the current system, rather than a mandatory forum, is difficult to justify. A major
change from the longstanding role of Article III courts in FOIA cases raises fundamental questions
for requesters and for agencies that are explored in the 1987 study. Much, too, has changed
politically since 1987 that would raise questions of the feasibility creating a new agency of that sort.
Finally, the establishment of OGIS itself has changed the picture dramatically. Thus, while the idea
of an Article I FOIA court remains a theoretically available approach to post-agency FOIA dispute
resolution, it is most realistically viewed as an idea whose time has passed.

64

OGIS, as presently staffed, is an extremely small agency. Like any agency, OGIS must
prioritize its use of limited resources. But any one of OGIS's three main charges--as FOIA
reviewer, recommender, and mediator--is, on a government-wide basis, a major
undertaking. The case-specific assistance OGIS provides, because it is open to all comers-requesters and agencies--has the greatest potential to grow in a manner that may present
manageability challenges, and in turn, to raise effectiveness questions.

OGIS currently divides its individual assistance services (to requesters or agencies)
into two categories: "Quick Hits" and "cases." The latter term is generally a reference to its
statutory "mediation" function, but at times has also been characterized as conciliation or
ombuds service. The case category, which includes everything that is not a Quick Hit, has
grown in just the last fiscal year by 40%. Certainly, not every case in OGIS's existing and
growing caseload makes the same demand on resources. And in the persistently difficult to
quantify world of FOIA cases, it is especially problematic to seek to measure mission
success numerically. Nonetheless, it may be possible to draw some procedural or
substantive lines that, in effect, provide a basis for prioritization or suggest a need for
expansion.

To the most unsophisticated requesters, OGIS's Quick Hit service is likely to be
considered particularly valuable. In terms of government-wide benefit, it may also smooth
paths and even at times head off requests that do not belong in the FOIA process at all. For
almost any other requesters, OGIS's web-based information serves the same function, and
for many requesters that level of informational service is not needed or sought from OGIS.
The remainder of OGIS's ombuds-type work appears to be where the greatest
potential and greatest challenge lies. In carrying out a mediative role between requesters
and agencies, OGIS must retain the confidence of both groups, and even that of particular
participants from each group. While OGIS is free to express views to a party on the merits
of a dispute within the confidential confines of mediation, an OGIS role beyond mediation
that puts it on record with respect to a substantive issue underlying the dispute is
somewhat problematic in two respects. First, it alters the traditional understanding of the
function of a mediator as someone who facilitates discussion and possible agreement
between the parties, not someone who communicates a substantive view of the dispute
publicly. Second, with repeat players (both requesters and agencies) being a common
feature in some of the most contentious FOIA disputes, OGIS's making public a substantive
view on an issue in dispute, risks losing some of those parties as active and willing
participants in the traditional mediative role.
Somewhat curiously, the OGIS statutory charter connects the mediation function
with the advisory opinion function. The language reads:
65

The Office of Government Information Services shall offer mediation services
to resolve disputes between persons making requests under this section and
administrative agencies as a non-exclusive alternative to litigation and, at the
discretion of the Office, may issue advisory opinions if mediation has not
resolved the dispute. 113
This expression of the OGIS function appears to contemplate an OGIS-managed mediation
that does not resolve the dispute, thus freeing OGIS, in its discretion, to issue an advisory
opinion on the issue(s) in dispute. 114 The further implication appears to be that the
advisory opinion would be public because, presumably, OGIS could and probably would
have communicated its position to the parties individually and privately in the mediation.
There would then be no need to "issue" an advisory opinion were it not to be public. None
of the legislative history of the 2007 legislation addresses specifically OGIS's use of this
discretionary authority.

Several related matters, however, seem clear. First, OGIS is widely perceived,
without particular attention to the statutory language, as having the authority to issue
advisory opinions either generally or as a follow on to its work in seeking to mediate a
dispute. Second, other FOIA ombuds offices--for example on a national level, the Canadian
Information Commissioner's office, or on the state level, many ranging from the longestablished New York Open Government Committee to the more recent but well-regarded
Virginia Freedom of Information Advisory Council--seek both to mediate disputes and also
to issue public, but non-binding, advisory opinions. Third, though public advisory opinions
can complicate constituency relations, they can, over time, also build credibility for the
ombuds as a voice in the developing and refining FOIA policy.

OGIS's yet-unexercised authority to issue advisory opinions, thus, deserves
attention. Setting aside for a moment the circumstance under which OGIS might issue
advisory opinions, it must be recognized that the preparation of meaningful advisory
opinions not only requires the sort of high-level of expertise that OGIS possesses, but also
would consume some of its limited professional resources. Consequently, undertaking
advisory opinions would in all likelihood necessitate some change in the allocation of its
resources or the addition of new resources. Those steps require both the conceptualization
of an integrated approach to OGIS's ombuds authority and the exercise of discretion vested
in the OGIS Director to guide its implementation.

113 5 U.S.C. § 552(h)(3)(emphasis added).

114 It would not, however, seem unreasonable to conclude also that mediation “has not resolved the

dispute” if a necessary party has refused to participate in mediation.
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B. Recommendations

What follows, then, are recommendations for a structure (a) that seeks to take
account of some of the most promising areas for FOIA alternative dispute resolution efforts,
(b) that recognizes the resource limitations that inhere in the use and implementation of
FOIA, and (c) that acknowledges the importance of the role of OGIS, the entity Congress has
chosen to be the dispute resolution vehicle beyond the work of the agencies and short of
litigation.
1. OGIS should continue its Quick Hit service and its website informational
resources to assist the least sophisticated FOIA users. This is a low cost/high
value function that has instant payoff for an important FOIA constituency.

2. Beyond its Quick Hit service, OGIS should normally provide requestersought assistance only: (a) to requesters who have exhausted the agency
appeal process with respect to any issue on which the requester seeks
assistance, or (b) to requesters for whom an applicable time limit has expired
and the request for assistance concerns steps that might advance more
timely agency processing of the request. The extremely sharp drop off at the
agency level from requests that could be appealed to requests that actually
are appealed suggests that substantive OGIS engagement with requests at an
early stage may allocate resources to requests for which there is little
sustained interest on the part of the requesters. 115 Of course, delaying
engagement until after an agency has taken a position on appeal may mean
that a position has "hardened" before OGIS engagement, but it may also mean
that the matter has developed detail and focus that will enable a different,
but nonetheless valuable, form of OGIS engagement. It must be
acknowledged that this approach would in many cases mean a more
restrictive "exhaustion" requirement to obtain OGIS assistance than is
needed to file suit. 116 It seems reasonable, however, to assume that for

115 OGIS has described its approach to case intake in a somewhat similar manner:

OGIS strives to work in conjunction with the current request and appeal process that
exists within Federal agencies. The goal is for OGIS to allow, whenever practical, the
requester to exhaust his or her remedies within the agency, including the appeal process.
Examples of OGIS services include helping requesters narrow the scope of their FOIA
requests; helping agencies deal with difficult requests and serial requesters; obtaining
information related to agency practices, policies, and procedures; working through issues
related to fees and requests for fee waivers; and encouraging agencies to reconsider
determinations to withhold requested agency records, particularly to look for instances
where no foreseeable harm can be identified from release.
Available at https://ogis.archives.gov/about-ogis/ogis-reports/the-first-year/the-ogismission.htm. The recommended intake approach is more specific and narrower, but recognizes,
through the use of the term “normally,” that some departures from this approach may be necessary
and desirable.
116 For example, it would exclude OGIS engagement in cases in which a determination has been
made at the initial consideration level in a timely fashion, but in which an appeal has not been
67

requesters for whom OGIS assistance would be superior to a lawsuit, this
constraint would be relatively unimportant.117

3. Ombuds assistance to requesters should take the same variety of
facilitative and mediative forms OGIS has used since it became operational.
For a substantive issue on which the requester has exhausted the agency
appeal, OGIS would seek, if the remaining issues in the request appear
meritorious, to assist the requester in engaging the agency in a discussion
that deters litigation, either through a change in the agency position or
through the agency's providing fuller, more informative context for its
position. For a delay issue, the OGIS role would be maintained in its current
form, aiming to assist the requester with practical steps that, with agency
cooperation, might advance processing of the request.

4. If the facilitative/mediative step does not produce an agreed resolution,
either the requester or the agency could ask OGIS for an advisory opinion in
the case. 118 In its complete discretion,119 OGIS would decide whether to
initiate the advisory opinion process in the case. If OGIS decides to initiate
the advisory opinion process, it would notify the parties of that decision. That
notice would not preclude a requester from filing suit, but if a suit is filed
after notice, but before an opinion is issued, the advisory opinion process
would be terminated. Both the requester and the agency would be expected
to provide to OGIS information OGIS deemed necessary to preparing the
opinion. If OGIS initiates the advisory opinion process, and either party fails
to provide information needed for preparation of the opinion, OGIS would
provide notice to the parties that the advisory opinion process will be
terminated because of a failure of a party to provide necessary information.

taken. It would not, however, exclude OGIS engagement with a delay issue either at the initial or
appeal stage at the expiration of an applicable time limit in cases in which OGIS assistance is sought
with respect to the delay.
117 Nonetheless, by including “delay” cases in addition to cases in which the appeals process has
been exhausted, an important channel is opened. Clearly a large number of cases in which no
appeals determination (or even an initial determination) has been made are delinquent with
respect to the applicable statutory time limit. Without regard to exemption issues or other
procedural issues, these cases may warrant OGIS assistance on the matter of delay. Delay often is
related to an issue on which limited OGIS assistance or even mediation could be valuable. The
“time-default” status of the case is thus a natural entry point from which ADR efforts could develop
more fully.
118 OGIS has described its advisory opinion authority as follows: "OGIS also is authorized to issue
advisory opinions, formal or informal. By issuing advisory opinions, OGIS does not intend to
undertake a policymaking or an adjudicative role within the FOIA process, but instead will
illuminate novel issues and promote sound practices with regard to compliance with FOIA."
Available at https://ogis.archives.gov/about-ogis/ogis-reports/the-first-year/the-ogismission.htm.
119 This exercise of discretion-- to undertake (or not undertake) a case for purposes of issuing an
advisory opinion-- should not be judicially reviewable. See Heckler v. Chaney, 470 U.S. 821 (1985).
The statute expressly uses the phrase, "at the discretion of the Office."
68

At any point after notice the advisory opinion process has begun, the parties
could jointly request that OGIS terminate the process. Factors such as
potential breadth of application and frequency of occurrence of an issue,
along with consideration of caseload manageability, should be among the
primary, though not the exclusive, determinants for OGIS in deciding
whether or not to initiate the advisory opinion process. While an OGIS
advisory opinion itself would not be subject to judicial review, it may receive
some consideration from a court in a FOIA suit in which the issue addressed
in the advisory opinion is before a court, whether in the dispute which led to
the opinion or another in which that issue is raised. 120

5. All agencies, through their FOIA Public Liaisons under the direction of their
Chief FOIA Officers, should seek OGIS mediation services at any stage in the
processing of a request that it appears to the agency that OGIS engagement
may aid in the resolution of a request. In such cases, if the requester agrees to
participate, OGIS should make its services available whether or not the
appeals process has been exhausted or any applicable time limit has expired.
This opportunity for agency engagement of OGIS under a looser standard
than would normally be applied to requesters under Recommendation 2
simply recognizes (a) that once an agency has made a final determination on
a request it is less likely than a requester to seek OGIS assistance, and (b) that
agency-sought OGIS engagement may provide one of the most fruitful
settings in which to obtain an informal resolution. 121
6. All agencies, in any appeal determination letter in which a request is
denied in whole or in part, should notify the requester of availability of OGIS
mediation services as a non-exclusive alternative to litigation. 122 Agency

120 While the de novo decisional standard in FOIA suits and the very nature of OGIS advisory

opinions would negate the applicability of deference under Chevron U.S.A. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), there is no reason an OGIS opinion could not be cited by
a party in a FOIA suit and be given respectful consideration by the court. See United States v. Mead
Corp., 533 U.S. 218 (2001).
121 OGIS has described its relationship with agency FOIA Public Liaisons as follows:
While the OPEN Government Act’s definition of a FPL is simple and straightforward, we
know that the reality of their positions is anything but. Some agencies have created new
FPL positions that are completely dedicated to assisting requesters and resolving disputes.
Other agencies — many of them smaller agencies — added the FPL tasks listed in the Act
to the already-full plate of someone within the FOIA shop. We’ve also found that FPLs have
a variety of approaches to their job, including everything from agitating for change within
agencies to reiterating the party line.
http://blogs.archives.gov/foiablog/2011/06/09/whats-a-foia-public-liaison.
122 OGIS itself has recommended such notice in the following form:
As part of the 2007 FOIA amendments, the Office of Government Information Services
(OGIS) was created to offer mediation services to resolve disputes between FOIA
requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS
services does not affect your right to pursue litigation.
69

websites and FOIA regulations should also call attention to the dispute
resolution services available from OGIS.

7. All agencies should take steps to maximize the effectiveness of their FOIA
Public Liaisons in fulfilling the dispute resolution function the Act assigns to
Public Liaisons. These steps at a minimum should ensure that Public Liaisons
receive necessary training in dispute resolution skills and support for their
statutorily designated function from agency leadership, including from
agency Chief FOIA Officers. Preventing or resolving FOIA disputes within
agencies through the work of Public Liaisons advances the goals of the Act
and can relieve the dispute resolution burden of both OGIS and the courts.

8. The largely distinct and individually important dispute resolution and
compliance promotion roles assigned by Congress to OGIS, the Attorney
General and agency Chief FOIA Officers, respectively, should each be fostered
and should be recognized collectively as a set of administrative mechanisms
sharing the goal, among others, of avoiding unnecessary FOIA litigation. 123

The recommendations made here suggest somewhat of an administrative 124
narrowing of the scope of OGIS's dispute resolution work, but at the same time a deepening
of it. Between scope and depth, there are, of course, other choices that could be made. Most
importantly, it is the centrality and effectiveness of OGIS's placement as the non-judicial
external body in the FOIA dispute resolution process that must be fostered in any course of
action followed.

Available at https://ogis.archives.gov/about-ogis/working-with-ogis/Standard-OGIS-Language-forAgencies.htm. OIP also has encouraged agencies to follow this practice. Available at
http://www.justice.gov/oip/foiapost/2010foiapost21.htm.
123 The method of implementing this recommendation could take many forms. Whatever the form,
an important goal should be to maximize the effect of these separate roles on FOIA compliance and
dispute resolution. For example, H.R. 1211,"FOIA Oversight and Implementation Act of 2013,"
reported by the Committee on Oversight and Government Reform, would establish a "Chief FOIA
Officer Council." The Council would be co-chaired by the Director of OIP and the Director of OGIS. It
would be "tasked with: developing recommendations to increase FOIA compliance and efficiency;
sharing information on ideas, best practices, and innovative approaches to improve FOIA;
identifying ways to better coordinate initiatives to increase transparency; and promoting the
development and use of performance measures for agency FOIA compliance." H.R. Rep. No. 113155, at 4 (2013). The bill passed the House on February 26, 2014, but has not yet been taken up by
the Senate. FOIA Oversight and Implementation Act of 2014, H.R. 1211, 113th Cong. (2014).
124 These recommendations would not require legislative action, though further development of
OGIS's capacity for implementing its dispute resolution function would in all likelihood require
additional funding.
70

APPENDIX A: FREEDOM OF INFORMATION ACT SECTIONS REFERENCED IN REPORT
5 U.S.C. 552:
(3)(A)

. . . [E]ach agency, upon any request for records which (i) reasonably describes such
records and(ii) is made in accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records promptly available to any
person.
(4)(A)

(i) In order to carry out the provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, specifying the schedule of
fees applicable to the processing of requests under this section and establishing procedures
and guidelines for determining when such fees should be waived or reduced . . . .
(ii) Such agency regulations shall provide that—

(I) fees shall be limited to reasonable standard charges for document search,
duplication, and review, when records are requested for commercial use;
(II) fees shall be limited to reasonable standard charges for document duplication
when records are not sought for commercial use and the request is made by an
educational or noncommercial scientific institution, whose purpose is scholarly or
scientific research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be limited to reasonable
standard charges for document search and duplication.
In this clause, the term “a representative of the news media” means any person or
entity that gathers information of potential interest to a segment of the public, uses
its editorial skills to turn the raw materials into a distinct work, and distributes
that work to an audience. In this clause, the term “news” means information that is
about current events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to the public at
large and publishers of periodicals (but only if such entities qualify as
disseminators of “news”) who make their products available for purchase by or
subscription by or free distribution to the general public. These examples are not
all-inclusive. Moreover, as methods of news delivery evolve (for example, the
adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be considered to be
A-1

news-media entities. A freelance journalist shall be regarded as working for a
news-media entity if the journalist can demonstrate a solid basis for expecting
publication through that entity, whether or not the journalist is actually employed
by the entity. A publication contract would present a solid basis for such an
expectation; the Government may also consider the past publication record of the
requester in making such a determination.

(iii) Documents shall be furnished without any charge or at a charge reduced below the
fees established under clause (ii) if disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial interest of the
requester.

***
(vii) In any action by a requester regarding the waiver of fees under this section, the court
shall determine the matter de novo: Provided, That the court’s review of the matter shall be
limited to the record before the agency.
(viii) An agency shall not assess search fees (or in the case of a requester described under
clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with
any time limit under paragraph (6), if no unusual or exceptional circumstances (as those
terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the
processing of the request.

(B) On complaint, the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency records
are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall determine the matter de
novo, and may examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any of the exemptions set
forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
In addition to any other matters to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency concerning the agency’s
determination as to technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
***
(E)(i) The court may assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case under this section in which the complainant
A-2

has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed if
the complainant has obtained relief through either—
(I) a judicial order, or an enforceable written agreement or consent decree;
or
(II) a voluntary or unilateral change in position by the agency, if the
complainant’s claim is not insubstantial.

***
(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of
this subsection, shall—
(i) determine within 20 days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of any such request whether to comply with such
request and shall immediately notify the person making such request of such
determination and the reasons therefor, and of the right of such person to appeal
to the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal within twenty days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of such
appeal. If on appeal the denial of the request for records is in whole or in part
upheld, the agency shall notify the person making such request of the provisions
for judicial review of that determination under paragraph (4) of this subsection.
The 20-day period under clause (i) shall commence on the date on which the
request is first received by the appropriate component of the agency, but in any
event not later than ten days after the request is first received by any component
of the agency that is designated in the agency’s regulations under this section to
receive requests under this section. The 20-day period shall not be tolled by the
agency except—
(I) that the agency may make one request to the requester for information
and toll the 20-day period while it is awaiting such information that it has
reasonably requested from the requester under this section; or

(II) if necessary to clarify with the requester issues regarding fee assessment.
In either case, the agency’s receipt of the requester’s response to the agency’s
request for information or clarification ends the tolling period.

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits
prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by
A-3

written notice to the person making such request setting forth the unusual circumstances
for such extension and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for more than ten working
days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends the time
limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person
making the request if the request cannot be processed within the time limit specified in
that clause and shall provide the person an opportunity to limit the scope of the request so
that it may be processed within that time limit or an opportunity to arrange with the
agency an alternative time frame for processing the request or a modified request. To aid
the requester, each agency shall make available its FOIA Public Liaison, who shall assist in
the resolution of any disputes between the requester and the agency. Refusal by the person
to reasonably modify the request or arrange such an alternative time frame shall be
considered as a factor in determining whether exceptional circumstances exist for
purposes of subparagraph (C).
(iii) As used in this subparagraph, “unusual circumstances” means, but only to the extent
reasonably necessary to the proper processing of the particular requests—
(I) the need to search for and collect the requested records from field facilities or
other establishments that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single request;
or
(III) the need for consultation, which shall be conducted with all practicable speed,
with another agency having a substantial interest in the determination of the
request or among two or more components of the agency having substantial
subject-matter interest therein.

(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for the aggregation of certain requests by the same requestor, or by a
group of requestors acting in concert, if the agency reasonably believes that such requests
actually constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve clearly related
matters. Multiple requests involving unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or
(3) of this subsection shall be deemed to have exhausted his administrative remedies with
respect to such request if the agency fails to comply with the applicable time limit
provisions of this paragraph. If the Government can show exceptional circumstances exist
A-4

and that the agency is exercising due diligence in responding to the request, the court may
retain jurisdiction and allow the agency additional time to complete its review of the
records. Upon any determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such request. Any
notification of denial of any request for records under this subsection shall set forth the
names and titles or positions of each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term “exceptional circumstances” does not
include a delay that results from a predictable agency workload of requests under this
section, unless the agency demonstrates reasonable progress in reducing its backlog of
pending requests.

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an
alternative time frame for processing a request (or a modified request) under clause (ii)
after being given an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether exceptional circumstances
exist for purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for multitrack processing of requests for records based on the amount
of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a request that does
not qualify for the fastest multitrack processing an opportunity to limit the scope of the
request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under
subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of requests for records—
(I) in cases in which the person requesting the records demonstrates a compelling
need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—
(I) that a determination of whether to provide expedited processing shall be made,
and notice of the determination shall be provided to the person making the
request, within 10 days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinations of
A-5

whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the
agency has granted expedited processing under this subparagraph. Agency action to deny
or affirm denial of a request for expedited processing pursuant to this subparagraph, and
failure by an agency to respond in a timely manner to such a request shall be subject to
judicial review under paragraph (4), except that the judicial review shall be based on the
record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an agency
denial of expedited processing of a request for records after the agency has provided a
complete response to the request.
(v) For purposes of this subparagraph, the term “compelling need” means—

(I) that a failure to obtain requested records on an expedited basis under this
paragraph could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual or alleged Federal
Government activity.

(vi) A demonstration of a compelling need by a person making a request for expedited
processing shall be made by a statement certified by such person to be true and correct to
the best of such person’s knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable
effort to estimate the volume of any requested matter the provision of which is denied, and
shall provide any such estimate to the person making the request, unless providing such
estimate would harm an interest protected by the exemption in subsection (b) pursuant to
which the denial is made.
***
(b) This section does not apply to matters that are—

(1)(A) specifically authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order;
(2) related solely to the internal personnel rules and practices of an agency;
A-6

(3) specifically exempted from disclosure by statute (other than section 552b of this title),
if that statute—
(A)(i) requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and (B) if enacted after the date of enactment of
the OPEN FOIA Act of 2009, specifically cites to this paragraph.
(4) trade secrets and commercial or financial information obtained from a person and
privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information
(A) could reasonably be expected to interfere with enforcement proceedings,
(B) would deprive a person of a right to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy,
(D) could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any
individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the regulation or supervision of
financial institutions; or
A-7

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under this subsection. The
amount of information deleted, and the exemption under which the deletion is made, shall
be indicated on the released portion of the record, unless including that indication would
harm an interest protected by the exemption in this subsection under which the deletion is
made. If technically feasible, the amount of the information deleted, and the exemption
under which the deletion is made, shall be indicated at the place in the record where such
deletion is made.
***

(e)(6) The Attorney General of the United States shall submit an annual report on or before
April 1 of each calendar year which shall include for the prior calendar year a listing of the
number of cases arising under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed under subparagraphs
(E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the
efforts undertaken by the Department of Justice to encourage agency compliance with this
section.
***

(h)(1) There is established the Office of Government Information Services within the
National Archives and Records Administration.

(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under this section;
(B) review compliance with this section by administrative agencies; and
(C) recommend policy changes to Congress and the President to improve the
administration of this section.

(3) The Office of Government Information Services shall offer mediation services to resolve
disputes between persons making requests under this section and administrative agencies
as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue
advisory opinions if mediation has not resolved the dispute.

(i) The Government Accountability Office shall conduct audits of administrative agencies on
the implementation of this section and issue reports detailing the results of such audits.
A-8

(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such
agency (at the Assistant Secretary or equivalent level).

(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the
agency—
(1) have agency-wide responsibility for efficient and appropriate compliance with
this section;
(2) monitor implementation of this section throughout the agency and keep the
head of the agency, the chief legal officer of the agency, and the Attorney General
appropriately informed of the agency’s performance in implementing this section;
(3) recommend to the head of the agency such adjustments to agency practices,
policies, personnel, and funding as may be necessary to improve its
implementation of this section;
(4) review and report to the Attorney General, through the head of the agency, at
such times and in such formats as the Attorney General may direct, on the agency’s
performance in implementing this section;
(5) facilitate public understanding of the purposes of the statutory exemptions of
this section by including concise descriptions of the exemptions in both the
agency’s handbook issued under subsection (g), and the agency’s annual report on
this section, and by providing an overview, where appropriate, of certain general
categories of agency records to which those exemptions apply; and
(6) designate one or more FOIA Public Liaisons.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as
supervisory officials to whom a requester under this section can raise concerns about the
service the requester has received from the FOIA Requester Center, following an initial
response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible
for assisting in reducing delays, increasing transparency and understanding of the status of
requests, and assisting in the resolution of disputes.

A-9

APPENDIX B: LIST OF INDIVIDUAL INTERVIEWEES & GROUP SESSION ATTENDEES
Individual Interviewees: (listed alphabetically; organization association shown for identification
purposes only)

Gavin Baker, Open Government Analyst, Center for Effective Government
Gary Bass, Executive Director, Bauman Foundation/Founder, OMB Watch
Michael Bekesha, Staff Attorney, Judicial Watch
Amy Bennett, Assistant Director, Open the Government.org
Rick Blum, Coordinator, Sunshine in Government Initiative
Stephanie Garner, Assistant Legal Counsel FOIA Programs, EEOC
Alan Gernhardt, Virginia Advisory Council on Open Government
Josh Gerstein, White House Reporter, Politico
Wendy Ginsberg, Analyst in American National Government, Congressional Research Service
Harry Hammitt, Publisher, Access Reports
Scott Hodes, Attorney and President, American Society of Access Professionals
James Holzer, Senior Director, FOIA Operations, Privacy Office, Department of Homeland Security
William Holzerland, Director, Division of Freedom Information, Food and Drug Administration
Richard Huff, Former Co-Director Office of Information Policy, US Department of Justice
Nate Jones, FOIA Coordinator, National Security Archive
Ryan Law, Director of Disclosure Services, U.S. Department of Treasury
Lisa Martin, General Counsel, Office of Inspector General, U.S. Postal Service
Ginger McCall, Federal Policy Manager, Sunlight Foundation
Patrice McDermott, Executive Director, OpentheGovernment.org
Vern McKinley, Researcher
Daniel J. Metcalfe, Adjunct Professor of Law, American University; Former Co-Director, Office of
Information Policy, US Department of Justice
Miriam Nisbet, Director, Office of Government Information Services
Melanie Ann Pustay, Director, Office of Information Policy, US Department of Justice
Michael Ravnitzky, Chief Counsel, Postal Regulatory Commission
Megan Rhyne, Executive Director, Virginia Coalition for Open Government
Adina Rosenbaum, Attorney, Public Citizen Litigation Group
Jeff Ruch, Executive Director, Public Employees for Environmental Responsibility
David Sobel, Senior Counsel, Electronic Frontier Foundation
Tom Susman, Director, American Bar Association Office of Government Affairs
Anne Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington
Amy Wind, Chief Circuit Mediator, US Court of Appeals for the District of Columbia Circuit
Corinna Zarek, Attorney Advisor, Office of Government Information Services

A-10

Group Session Attendees: (listed alphabetically; organization association shown for identification
purposes only)

Ryan Alexander, The Constitution Project
Katherine Blair, Bauman Foundation
Danielle Brian, Project on Government Oversight
Angela Canterbury, Project on Government Oversight
Mark Caramanica, Freedom of Information Director, Reporters Committee for Freedom of the Press
Jessica Conway-Ellis, National Newspaper Association
Sophia Cope, Newspaper Association of America
MarQuis Fair, Center for Effective Government
Shannon Bradford Franklin, The Constitution Project
Kevin Goldberg, American Society of Newspaper Editors
Emily Grannis, Reporters' Committee
Julia Horowitz, Electronic Privacy Information Center
Karen Kaiser, Associated Press
Kathy Kirby, Radio, Television, Digital News Association
Sean Moulton, Center for Effective Government
Abbey Paulson, OpentheGovernment.org
Scott Roehm, The Constitution Project
Matt Rumsey, Sun Light Foundation
Tonda Rush, National Newspaper Association
Wick Schellenbach, Center for Effective Government
Daniel Shuman, Citizens for Responsibility and Ethics in Government
Katherine Stern, The Constitution Project

A-11

APPENDIX C: AGENCY-LEVEL FOIA PROCESSING DATA
1. Initial Requests: Use of FOIA Exemptions by Twelve Agencies Receiving Highest
Number of Requests

Table C- 1: Initial Requests – Agency Use of Exemptions 1 & 2
Agencies

Agriculture
Archives
Defense

EEOC
Health & Human Services
Homeland Security
Justice
Labor
Social Security
State
Treasury
Veterans Affairs
Total 12 Agencies

Total all Reporting Agencies

FY 2010

Exemption 1
8

113
1,279
0
0
92
639
0
0
408
3
0

2,542
3,743

FY 2011

FY 2012

FY 2010

0
0
19
549
0
0
531
9
0

0
0
20
408
2
0
203
5
2

2
142
53,828
4,100
611
66
162
157
109

7

86
1,510

2,711
4,333

5

178
2,390

3,213
5,403

Table C- 2: Initial Requests – Agency Use of Exemptions 3 & 4
Agencies

Agriculture
Archives
Defense
EEOC
Health & Human Services
Homeland Security
Justice
Labor
Social Security
State
Treasury

Veterans Affairs

12 Agency Total
Total All Reporting Agencies

FY 2010
401
80
2,512
2,497
101

Exemption 3

124

32
3,361

62,694

FY 2012
474
155
3,276
5,362
135

FY 2010
385
14
2,020
38
736

5,517
2,291

15,129
2,121

5,789
2,769

95
307

19,130
22,014

31,630
36,094

2,514

1,941
1,361
62
55
3,447

A-12

3,884
1,282
89
76
2,347

25,638
30,514

FY 2011

FY 2012

3
95
17,807
1,699
423
12
134
187
53

0
2
480
147
144
556
22
97
0

110

24
2,163

22,710

64,260
24,450
Derived from: foia.gov

FY 2011
474
73
2,827
4,037
103

1,670
1,360
97
90

Exemption 2

1,051
224
3,522
35
217

8,644
11,846

Exemption 4

61

64
681

2,254
3,011

FY 2011
387
16
1,870
32
772

FY 2012
410
22
1,395
41
571

105
206

37
177

510
278
3,474
46
279

7,975
11,475

Derived from: foia.gov

559
298
3,835
28
245

7,618
10,914

Table C- 3: Initial Requests – Agency Use of Exemptions 5 & 6
Agencies

Agriculture
Archives
Defense

EEOC
Health & Human Services
Homeland Security
Justice

Labor
Social Security

State
Treasury
Veterans Affairs

12 Agency Total

Total All Reporting Agencies

FY 2010
262
43

1,895

10,582
360
41,828

1,231
4,136
75
240
620
157

61,429
64,669

Exemption 5
FY 2011
296
47

FY 2012
589
45

FY 2010
1,472
158

1,500

1,404

6,484

1,975

11,818
375
31,601

3,516
99
361
575
170

52,333
56,267

2,331

12,779
354
54,121

3,133
98
213
657
161

75,885
79,474

13,083

2,088
8,482
54,548
2,149
1,288

2,669
907
10,351

103,679

Exemption 6
FY 2011
1,559
103

FY 2012
1,222
180

5,455

5,469

12,238

2,714
5,858
58,710
2,108
1,241
3,282
831
9,496

103,595

13,604

2,876
5,950
80,933
2,058
987
480
799
8,999

123,557

111,362 115,140 136,470
Derived from: foia.gov

Table C- 4: Initial Requests – Agency Use of Exemptions 7(C) & 7(E)
Agencies

Agriculture
Archives

FY 2010

Exemption 7(C)

577
49

FY 2011

560
23

FY 2012

414
83

Exemption 7(E)

FY 2010

43
13

FY 2011

66
26

FY 2012

86
70

Defense

7,113

5,816

7,539

121

213

360

Homeland Security

64,905

68,467

99,597

55,198

52,174

93,985

15

17

41

0

4

577

EEOC

Health & Human Services
Justice

Labor

Social Security
State

Treasury

Veterans Affairs

12 Agency Total

Total All Reporting Agencies

4,169
269

8,158
5,085
68

963

1,365

92,736
95,578

6,309
415

6,941
5,492
94

6,314
684

7,211
6,066
81

993

1,179

96,628

137,111

1,501

102,568

A-13

1,601

137,837

0

27

1,717
894
26

4

65

1,636
981
77

2

53

2,249
1,176
269

873

873

1,161

58,923

56,138

99,998

11

100,549

19

56,491

Derived from: foia.gov

10

59,120

2. Fee Waivers

Table C- 5: Fee Waiver Decisions and Days to Adjudicate

Agencies
Agriculture
Archives
Defense

Fee Waiver Granted

Fee Waiver Denied

Average Days to
Adjudicate

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

11

7

35

54

92

22

65

5

8

1,163

1,242

1,233

60

56

78

43

20

36

1,736

2,214

1,137

613

564

696

639

627

252

Health & Human Services

291

272

332

66

35

36

32

182

47

Justice

151

147

145

1,166

1,113

343

4

48

65

0

2

3

18

18

EEOC

Homeland Security
Labor

Social Security
State

Treasury

Veterans Affairs
12 Agency Total

4

74

365
1

27
93

375
0

10

131
290

36

163
344

58

98

0

931

45

122

1,830

54

18

3

0

100

113

5

124

192

68

4,410

4,889

3,608

2,836

2,783

110

26

A-14

69

527

5

84

48

2

603

11

38

0

245

214
296

1

160

132
482

1

8

16
8

11

114

3,044
N/A
N/A
Derived from: foia.gov

N/A

12

194

3. Expedited Processing: Disposition & Timing

Table C- 6: Expedited Requests Grants, Denials, and Days to Adjudicate

Agencies
Agriculture
Archives
Defense
EEOC

Health &
Human
Services
Homeland
Security
Justice

Labor

Social
Security
State

Treasury
Veterans
Affairs

12 Agency
Total

Number Granted

Number Denied

Average Number of
Days to Adjudicate

Number Adjudicated
w/in 10 Calendar Days

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

11

6

22

54

12

4

5

5

0

65

18

18

35

45

33

371

472

475

30

32

26

387

516

495

285

757

377

438

700

749

350

98

95

575

1,339

1,009

19

24

27
59

186

1,449

163

1,529

272

1,122

84

59

39

44

75

1,410

78

1,377

265

261

203

106

887

1,046

866

83

43

100

911

1,113

867

0

0

0

7

0

0

0

0

7

0

0

1

27

213
1

2

36

171
3

9

117
16

39

241

17

20

20

470

2,079

1,743

4

205

31

24

40

49

78

4

65

140

110

1,046

1,499

934

3,919

28

0

204

223
29

383

7

97

166
27

2

105

4,665

206

4,454

A-15

30

N/A

0

35
0

34

38

N/A

N/A

12

0

199
15

251
56

4

247
27

294
72

14

991

231
75

323
81

3,951
5,085
4,369
Derived from: foia.gov

4. Appeal Dispositions

a. Exemption-Based Dispositions: Use of FOIA Exemptions by Twelve Agencies Receiving
Highest Number of Appeals
Table C- 7: Appeals – Agency Use of Exemptions 1 & 2
Agency
Agriculture

CIA
Defense
EEOC
Environmental Protection Agency
Health & Human Services
Homeland Security
Justice
Labor
State
Treasury
Veterans Affairs
12 Agency Total

Exemption 1

FY
2010
0

FY
2011
0

FY
2012
0

FY
2010
2

FY
2011
6

FY
2012
0

2
35
0
206
0
0

2
67
0
196
0
0

1
60
0
56
1
0

2,735
390
1
12
10
1

398
147
0
10
9
3

16
1
1
0
4
0

72
92
0
0
0

140
58
0
0
0

407

106
180
0
0
0

463

404

Table C- 8: Appeals – Agency Use of Exemptions 3 & 4
Agency

Exemption 2

Exemption 4

FY
2012

FY
2012

74
81
95
2

143
54
12
0

107
142
63
2

0
20
0
13

Justice
Labor
State
Treasury

117
0
67
93

128
0
112
99

119
0
42
90

12
23
18
9

12 Agency Total

626

654

673

CIA
Defense
EEOC
Environmental Protection Agency
Health & Human Services
Homeland Security

Veterans Affairs

12

10
60

15

A-16

23

5
56

22

26

3
58

21

2
51
0
2
3

0
11
0
0
2

3,211
631
35
Derived from: foia.gov

FY
2011

Agriculture

FY
2010

Exemption 3

1
58
0
1
0

8

21
34

6

FY
2011

FY
2012

0
34
0
6

1
31
1
12

10

24
21
14
17
8
15
3

11

20
14
8
9
2
11
9

164
152
129
Derived from: foia.gov

Table C- 9: Appeals – Agency Use of Exemptions 5 & 6
Agency
Agriculture
CIA

FY
2010

Exemption 5

13
2

FY
2011

FY
2012

FY
2010

8

5

3

29

Defense

60

62

Environmental Protection Agency

25

23

EEOC

Health & Human Services
Homeland Security
Justice

Labor

3

13

Exemption 6

13

52

202

35

9

16

15

86

144

20

24

3

2,636

674

909

7

8

6

3

5

7

127

130

118

444

55

44

60

66
2,879

61
1,064

13
1,192

Homeland Security
Justice
Labor
Veterans Affairs
State
Treasury

12 Agency Total

477

362

54

84

47

61

85

124

3,520

1,641

29
1,791

Derived from: foia.gov

Table C- 10: Appeals – Agency Use of Exemptions 7(C) & 7(E)

Health & Human Services

45

660

91

Environmental Protection Agency

34

560

Treasury

EEOC

27

2,456

60

CIA
Defense

27

11

32

Agriculture

10

40

142

22

Agency

2

39

154

16

12 Agency Total

FY
2012

98

Veterans Affairs
State

FY
2011

Exemption 7(C)

Exemption 7(E)

FY
2010
24

FY
2011
27

FY
2012
18

FY
2010
9

FY
2011
15

FY
2012
11

21

59

94

0

2

1

1
76
2
5

0
54
5
7

0
82
5

14

0
2
2
0

0
3
1
0

0
8
2
2

3,321

816

1,067

2,936

719

991

6
70

10
54

8
57

2
40

11
42

5
22

671
111
16

4,324

A-17

791
83
10

1,916

667
54
15

2,075

233
1
0

3,225

329
1
3

1,126

424
1
1

1,044

Derived from: foia.gov

b. Appeals Dispositions Not Based on FOIA Exemptions
Table C- 11: Non-Exemption-Based Appeal Dispositions

Agencies
Agriculture
CIA

FY
2010

11
1

No Records

Fee-Related Reason

Improper FOIA
Request

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

FY
2010

FY
2011

FY
2012

1

2

0

0

0

0

0

0

14

10

5

6

2

4

2

4

Defense

106

144

145

20

18

22

56

21

15

Health & Human Services

16

15

36

4

4

1

0

3

0

Justice

631

704

968

149

142

2

7

47

2

1

EEOC

Homeland Security
Labor

Social Security
State

Treasury

Veterans Affairs

12 Agency Total
99 Agency Total

5
7

48
7

1

47
40
5

0

85
32

59

1

54

917

1,068

1,444

1,092

1,201

6

19

47
43

2

6

43
40

0

1,592

6

214
264

A-18

0

0

3

0

0

6

19

191

134

156

1

2

27

16

27

0
7
7

192
248

70
0
0

62
0
0

64
0
0

126
0
0

3

10

32

17

132

353

275

358

10

176

0

3

13

384
327
438
Derived from: foia.gov

APPENDIX D: EXCERPTS OF RTI APPEAL RATING SUMMARIES FOR USA, CANADA, AND MEXICO

United States
1
2
3

4
5
6
7
8
9
10
11

12

Description

Findings

Statute

The law offers an internal appeal which is simple, free of
charge and completed within clear timelines (20 working days
or less).

YES

Section 6(a)(ii) provides for an internal
appeal with a relatively short timeframe.

Requesters have the right to lodge an (external) appeal with
an independent administrative oversight body (e.g. an
information commission or ombudsman).

Partially

The member(s) of the oversight body are appointed in a
manner that is protected against political interference and
have security of tenure so they are protected against arbitrary
dismissal (procedurally/substantively) once appointed.

NO

[T]he Office of Government Information
Services acts as a mediator - but is not a
formalized [adjudicative] appeal process [as
contemplated here.]

The oversight body reports to and has its budget approved by
the parliament, or other effective mechanisms are in place to
protect its financial independence.

NO

There are prohibitions on individuals with strong political
connections from being appointed to this body and
requirements of professional expertise.
The independent oversight body has the necessary mandate
and power to perform its functions, including to review
classified documents and inspect the premises of public
bodies.
The decisions of the independent oversight body are binding.

NO

Requesters have the right to lodge a judicial appeal.

YES

Section 4(b)

The grounds for appeal to the oversight body (where
applicable, or to the judiciary if no such body exists) are broad
(including not only refusals to provide information but also
refusals to provide information in the form requested,
administrative silence and other breach of timelines, charging
excessive fees, etc.).

YES

Yes - all these are complaints that the judge
can evaluate on a de novo standard.

In deciding an appeal, the independent oversight body has the
power to order appropriate remedies for the requester,
including the declassification of information.
Appeals to the oversight body (where applicable, or to the
judiciary if no such body exists) are free of charge and do not
require legal assistance.

Clear procedures, including timelines, are in place for dealing
with external appeals (oversight/judicial).

A-19

NO
NO
NO

Partially

Partially

[T]echnically no lawyer is required . . . but it is
nonetheless a difficult process for a layman . . .
. [F]iling fee is $350, but can be waived . . . .

There are clear procedures, particularly as
these cases are generally decided on summary
judgment, but no timelines.

United States
13
14

Description

In the appeal process (oversight/judicial/) the government
bears the burden of demonstrating that it did not operate in
breach of the rules.
The external appellate body has the power to impose
appropriate structural measures on the public authority (e.g.
to conduct more training or to engage in better record
management)

Findings

YES

Partially

Statute

Yes - the burden is on the agency to sustain its
action.
[O]rdinarily Courts do not make such orders,
but they can be included . . . . within the
Court's recommendations.

CANADA
1

Description

Findings

Statute

The law offers an internal appeal which is simple, free of
charge and completed within clear timelines (20 working days
or less).
Requesters have the right to lodge an (external) appeal with
an independent administrative oversight body (e.g. an
information commission or ombudsman).

NO

No internal appeals procedure.

YES

Section 30

The member(s) of the oversight body are appointed in a
manner that is protected against political interference and
have security of tenure so they are protected against arbitrary
dismissal (procedurally/substantively) once appointed.

YES

The oversight body reports to and has its budget approved by
the parliament, or other effective mechanisms are in place to
protect its financial independence.

YES

Appointed by GiC with approval of the House
of Commons and the Senate and can be
dismissed by GiC only upon address to the
House and Senate.

There are prohibitions on individuals with strong political
connections from being appointed to this body and
requirements of professional expertise.

Partially

YES

7

The independent oversight body has the necessary mandate
and power to perform its functions, including to review
classified documents and inspect the premises of public
bodies.
The decisions of the independent oversight body are binding.

The conventions of Canada's system suggest
that the Information Commissioner will be
politically neutral and have appropriate
expertise, but the fact that this is a
convention.
Section 36

NO

Section 37(4)

9

Requesters have the right to lodge a judicial appeal.

YES

Section 41 - also implicit in Canada's system
of administrative law
Section 30

2
3

4
5

6

8

10

In deciding an appeal, the independent oversight body has the
power to order appropriate remedies for the requester,
including the declassification of information.
Appeals to the oversight body (where applicable, or to the
judiciary if no such body exists) are free of charge and do not
require legal assistance.

A-20

Partially

YES

Section 38

Section 37 - Can recommend disclosure.

CANADA
11

12
13
14

Description

Findings

Statute

The grounds for appeal to the oversight body (where
applicable, or to the judiciary if no such body exists) are broad
(including not only refusals to provide information but also
refusals to provide information in the form requested,
administrative silence and other breach of timelines, charging
excessive fees, etc.).
Clear procedures, including timelines, are in place for dealing
with external appeals (oversight/judicial).

YES

Section 30

Partially

In the appeal process (oversight/judicial/) the government
bears the burden of demonstrating that it did not operate in
breach of the rules.

YES

Clear procedure spelled out here:
http://www.oic-ci.gc.ca/eng/investigationsenquetes.aspx but no timelines.

The external appellate body has the power to impose
appropriate structural measures on the public authority (e.g.
to conduct more training or to engage in better record
management)

Partially

This isn't stated explicitly, but is implicit in
Canada's system of administrative law, and in
the functioning of the Information
Commission as an investigative office.
Section 37 - Can recommend changes.

Findings

Statute

MEXICO
1
2

3

4
5
6
7

Description

The law offers an internal appeal which is simple, free of
charge and completed within clear timelines (20 working days
or less).
Requesters have the right to lodge an (external) appeal with
an independent administrative oversight body (e.g. an
information commission or ombudsman).

NO

No internal appeals.

YES

The member(s) of the oversight body are appointed in a
manner that is protected against political interference and
have security of tenure so they are protected against arbitrary
dismissal (procedurally/substantively) once appointed.

YES

Article 37(ii) - however this appeal does not
apply to requests made to the legislature,
judiciary, or autonomous constitutional
bodies such as the central bank - a significant
shortcoming.
Article 34 - named by executive, approved by
legislature. Independent and difficult to
dismiss.

There are prohibitions on individuals with strong political
connections from being appointed to this body and
requirements of professional expertise.

YES

The oversight body reports to and has its budget approved by
the parliament, or other effective mechanisms are in place to
protect its financial independence.

YES

The independent oversight body has the necessary mandate
and power to perform its functions, including to review
classified documents and inspect the premises of public
bodies..
The decisions of the independent oversight body are binding.

Partially

A-21

YES

Article 37(xviii) - Budget goes to the
secretariat of the treasury to be integrated
into the federal budget.

Article 35 has professional requirements, and
limits on some politically established
individuals
Article 17 - institute has the power to review
classified documents.
Article 59

MEXICO
8
9
10
11

12
13
14

Description

Findings

Statute

In deciding an appeal, the independent oversight body has the
power to order appropriate remedies for the requester,
including the declassification of information.

YES

Article 56 - Can order information disclosed.

Appeals to the oversight body (where applicable, or to the
judiciary if no such body exists) are free of charge and do not
require legal assistance.
The grounds for appeal to the oversight body (where
applicable, or to the judiciary if no such body exists) are broad
(including not only refusals to provide information but also
refusals to provide information in the form requested,
administrative silence and other breach of timelines, charging
excessive fees, etc.).

YES
YES

Article 59

YES

Article 50

YES

Article 55

Partially

Article 37(v) - The body has the power to
make recommendations - the extent to which
these recommendations are binding is not
clear.

Requesters have the right to lodge a judicial appeal.

Clear procedures, including timelines, are in place for dealing
with external appeals (oversight/judicial).
In the appeal process (oversight/judicial) the government
bears the burden of demonstrating that it did not operate in
breach of the rules.
The external appellate body has the power to impose
appropriate structural measures on the public authority (e.g.
to conduct more training or to engage in better record
management)

A-22

YES

Article 52

Article 53