Justice Reports Annually on FOIA Litigation Lawsuits

As previously mentioned, Justice annually publishes a litigation and  compliance report that is required by FOIA. Agencies’ Costs Associated with FOIA Lawsuits Where the Plaintiffs Prevailed Could Not Be Fully Determined

For the 112 selected FOIA lawsuits where the plaintiffs had prevailed,  litigation-related costs could not be fully determined. Litigation-related  costs associated with such lawsuits are comprised of (1) Justice’s costs  for defending the lawsuits on behalf of agencies, (2) the agencies’  respective costs for the lawsuits, and (3) any attorneys’ fees and costs as  assessed by a court or based on settlement agreements awarded to  plaintiffs. Justice Does Not Collect Litigation Cost Data for Individual Lawsuits

While Justice defends FOIA lawsuits on behalf of the federal government,  it does not track all costs that the department incurs in defending  individual lawsuits in which the plaintiffs prevailed. Accordingly, of the 112 selected lawsuits, Justice provided cost  information, totaling about $97,000 for 8 lawsuits in which the plaintiffs  substantially prevailed. According to this  information, the agencies incurred approximately $1.3 million in FOIA  litigation-related costs for these lawsuits during fiscal years 2009 through  2014. Officials representing these agencies generally  stated that they did not have mechanisms in place to track FOIA litigation- related costs where the plaintiffs prevailed. Moreover, they pointed to the  fact that Justice’s guidance does not require them to collect and report  this information. However, for these 10 lawsuits, Justice’s reported cost information  differed from the cost information provided by agencies for 8 lawsuits. According to the department, the differences in the awards of attorneys’  fees and costs are due to the appeals process and the settlement  agreements between the respective agencies and the plaintiffs. However, it should be  noted that such a requirement could be costly to Justice. Conclusions

Each year, federal agencies are subject to hundreds of lawsuits from  FOIA requesters whose requests were denied or not responded to in a  timely manner. Although requiring Justice and agencies to report  actual cost information on lawsuits, and tracking the appeals process and  settlement agreements between agencies and plaintiffs could lead to  better transparency and openness in federal operations, there would be  costs associated with doing so. Considering these costs relative to the  potential benefits could help in determining whether establishing such a  requirement would be an effective means of enhancing FOIA litigation- related operations. Matters for Congressional Consideration

To provide greater transparency in the reporting of FOIA litigation costs,  Congress could consider requiring Justice to provide a cost estimate for  collecting and reporting information on costs incurred when defending  lawsuits in which the plaintiffs prevailed. Agency Comments and Our Evaluation

We received written comments on a draft of this report from Justice. In its  comments (reprinted in appendix V), Justice stated that, in the face of  ever-increasing numbers of FOIA requests, the department appreciated  our recognition of the need to balance the cost of additional reporting  against the benefit it could provide to achieve the goal of good FOIA  administration. This resulted in our selection of 112 lawsuits across 28  federal agencies where the courts had awarded attorneys’ fees and costs. To determine attorney fees and costs for the 112 lawsuits, we reviewed  Justice’s annual litigation and compliance reports, where information on  attorney fees and costs awarded by the court to the plaintiff is reported. Appendix III: Examples of FOIA Litigation Lawsuits

Of the 112 lawsuits selected where the plaintiff substantially prevailed, a  lawsuit was filed either because (1) the agency failed to respond within  the statutory time frame (58 lawsuits); (2) the agency failed to provide all  of the documentation in the FOIA request (46 lawsuits); or (3) for other  reasons, such as denial of a fee waiver or appealing a dismissal of a  claim (8 lawsuits).
Why GAO Did This Study

FOIA requires federal agencies to provide the public with access to government information and each year, agencies release information. Nevertheless, many FOIA requests are denied or not responded to in a timely manner. The act allows requesters to litigate if the agency does not respond to a request within the statutory time frames. Over the last decade, Justice reported 3,350 FOIA lawsuits filed against agencies, with a 57 percent increase in lawsuits filed since 2006 (see figure).
GAO was asked to determine FOIA litigation-related costs incurred by federal agencies for lawsuits in which the plaintiffs substantially prevailed. To do so, GAO reviewed Justice's data on FOIA-related lawsuits with a decision rendered from 2009 through 2014, and identified 112 lawsuits across 28 federal agencies where the plaintiff substantially prevailed. GAO reviewed cost data from Justice and the selected agencies, and interviewed agency officials to discuss the availability and reliability of these data.

What GAO Found

Of the 1,672 Freedom of Information Act (FOIA) lawsuits with a decision rendered between 2009 and 2014, GAO identified 112 lawsuits where the plaintiff substantially prevailed. Litigation-related costs for these 112 lawsuits could not be fully determined. Costs associated with such lawsuits are comprised of (1) the Department of Justice's (Justice) costs for defending the lawsuits on behalf of agencies, (2) the agencies' respective costs for the lawsuits, and (3) any attorneys' fees and costs as assessed by a court or based on settlement agreements awarded to the plaintiffs' attorneys.
Of the 112 lawsuits, Justice provided information on its costs for defending 8 lawsuits totaling about $97,000. Justice officials stated that the department does not specifically track costs for lawsuits in which the plaintiffs substantially prevailed and that its attorneys are not required to track such costs for individual lawsuits. Regarding individual agencies, 17 of the 28 in GAO's study had a system or process in place that enabled them to provide cost information on 57 of the 112 selected lawsuits. According to this information, the agencies incurred approximately $1.3 million in FOIA litigation-related costs for these lawsuits during fiscal years 2009 through 2014. The remaining agencies did not have a mechanism in place to track FOIA litigation-related costs where the plaintiffs prevailed. These agencies said costs were not tracked because Justice's guidance does not require agencies to collect and report costs related to specific lawsuits, or if the plaintiff prevailed as a result of a lawsuit.
As required by FOIA, Justice has reported annually on the results of all lawsuits, including any awards of attorneys' fees and costs to the plaintiffs. However, for 11 of the 112 selected lawsuits, Justice reported an amount of attorneys' fees and costs awarded that differed from the amounts reported by the defending agencies. According to Justice, the differences in the award of attorney's fees and costs were due to the appeals process and settlement agreements between the respective agencies and the plaintiffs.
Although requiring Justice and agencies to report actual cost information could lead to better transparency regarding federal operations, costs would be associated with such reporting. Considering these costs, as well as potential benefits, could help Congress in determining whether such a requirement would be cost-effective for enhancing oversight of FOIA litigation-related operations.

What GAO Recommends

If Congress determines that transparency in the reporting of FOIA litigation costs outweighs increased costs for systems and processes to be developed, then it could consider requiring Justice to provide a cost estimate for collecting and reporting information on costs incurred when defending lawsuits in which the plaintiffs prevailed. In commenting on a draft of this report, Justice stated that it appreciated GAO's recognition of the need to balance the cost and benefit of additional reporting to achieve good FOIA administration.