Standing


 * This article is part of a series on Litigation

Introduction
Standing refers to the interest and position a party must have in order to bring a lawsuit. Generally, the person who filed a FOIA request has standing to file a lawsuit regarding that request. If the plaintiff is not the requester, however, no amount of interest in the subject of the request can confer standing.

Challenging Denials
Requesters have standing when they have been denied the information they requested. However, the denied FOIA request must have asked the agency to produce existing documents. Requesters will likely not have standing if the denied FOIA request asked the agency to create new documents.

Challenging Delays
Even if the agency has acknowledged receipt of the request or has otherwise communicated with the requester, a requester has standing to bring suit if the agency has failed to respond fully within the time required by statute. Additionally, even if a specific FOIA request has become moot, a plaintiff may still seek a declaratory judgement or injunctive relief. To establish standing in these cases, a plaintiff must allege a pattern or practice of FOIA violations. A plaintiff should be able to show: (1) the agency's FOIA violation was not merely an isolated incident, (2) plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice.

Assignment and Transfer of Standing
Generally, no person other than the original requester has standing to challenge an agency's response to their request. If an employee intends for their employer (or an attorney intends for their client) to have standing to bring a FOIA claim, she must indicate that she is making the request on behalf of the other party. Otherwise, only the requester has standing to bring a FOIA claim. The DC Circuit has held, however, that in some cases, if a FOIA requester dies, his right to continue a FOIA claim may survive and pass to the legal representative of the requester's estate.

Waiver of Right to Sue
In some criminal cases, federal prosecutors have included waivers in plea agreements to limit defendants' right to receive records pertaining to their case under FOIA. In 2017, the Court of Appeals for the D.C. Circuit ruled that although it may be permissible for an agency to "decline to turn over records to somebody who has specifically contracted with the government not to seek them[,]" it was not permissible under the facts of that case for the government to enforce a plea agreement containing a waiver of FOIA rights. The Court noted that "a plea agreement that attempts to waive a right conferred by a federal statute is, like any other contract, 'unenforceable if the interest in its enforcement is outweighed [under] the circumstances by a public policy harmed by enforcement.'" In holding that the waiver was not enforceable, the Court found that there were important public interests advanced by allowing FOIA cases related to criminal cases to proceed, while the government failed to present any convincing reason that enforcing such waivers would further "legitimate prosecutorial and public interests": "Price has shown, through real-world examples, that enforcing a FOIA waiver would make it harder for litigants in his position to discover potentially exculpatory information or material supporting an ineffective-assistance-of-counsel claim. This is especially true given that, 'with rare exceptions, only the waivor' in such cases 'has the requisite knowledge and interest to lodge a FOIA request in the first place.' Amicus Br. 27. On the other side of the scale, the government has offered us nothing more than the unsupported blanket assertion that FOIA waivers assist in effective and efficient prosecution, without any support or explanation how. Under these particular circumstances, and based on the briefing in this case, we have little trouble in concluding that the public interest in enforcing Price's waiver is outweighed by the harm to public policy that enforcement would cause." Accordingly, because the government gave "no adequate rationale for enforcing this waiver", the Court held it could not be invoked.