Reverse FOIA Lawsuits


 * This article is part of a series on Litigation

Introduction
The Court of Appeals for the District of Columbia Circuit has defined a reverse FOIA action as one in which the "submitter of information -- usually a corporation or other business entity" that has supplied an agency with "data on its policies, operations or products -- seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter's FOIA request."

Reverse FOIA challenges generally arise from situations involving pending FOIA requests. However, on occasion they are brought by parties challenging other types of prospective agency disclosures as well. For example, submitting organizations have challenged:
 * agency decision to place investigatory file, which included information on individuals, in agency's public reading room
 * agency order requiring it to publicly disclose information, which was issued in context of federal licensing requirements
 * agency release decision that was based upon disclosure obligation imposed by Federal Acquisition Regulation (FAR)

Jurisdiction Issues
Note that if the underlying FOIA request (or other request for disclosure) is subsequently withdrawn, the basis for the court's jurisdiction will dissipate and the case will be dismissed as moot. Similarly, a court will lack jurisdiction if an agency has not made a final determination to release requested information.

Importantly, the Supreme Court has held that jurisdiction for a reverse FOIA action cannot be based on the FOIA itself because "Congress did not design the FOIA exemptions to be mandatory bars to disclosure" and, as a result, the FOIA "does not afford" a submitter "any right to enjoin agency disclosure." That is to say, a submitter "must do more than simply show that FOIA does not require disclosure" and must instead "also point to some other law prohibiting disclosure of the information at issue."

The Supreme Court found that review of an agency's "decision to disclose" requested records can be brought under the Administrative Procedure Act (APA). and as a result, most FOIA plaintiffs cite the APA. In particular, they claim that a release of records would violate the APA because it would "not be in accordance with law" or would be "arbitrary and capricious."

Burden of Proof
The party seeking to prevent the disclosure of information the government intends to release (i.e. the submitter organization) assumes the burden of justifying the nondisclosure of the information

Note, however, that if relevant, a reverse FOIA plaintiff does not bear the burden of proving the "non-public availability" of information - the D.C. Circuit held that it is "far more efficient, and obviously fairer" for that burden to be placed on the party who claims that the information is public.

Standard of Review
A submitter's challenge to an agency's disclosure decision is reviewed in light of the "basic policy" of the FOIA to "'open agency action to the light of public scrutiny'" and in accordance with the "narrow construction" afforded to the FOIA's exemptions.

The Court of Appeals for the District of Columbia Circuit has strongly emphasized that judicial review in reverse FOIA cases should be based on the administrative record, with de novo review reserved for only those cases in which an agency's administrative procedures were "severely defective." Review on the administrative record is a "deferential standard of review [that] only requires that a court examine whether the agency's decision was 'based on a considerationof the relevant factors and whether there has been a clear error of judgment.'" Under this standard "[a] reviewing court does not substitute its judgment for the judgment of the agency" and instead "simply determines whether the agency action constitutes a clear error of judgment." Significantly, "[a]n agency is not required to prove that its predictions of the effect of disclosure are superior"; rather, it "is enough that the agency's position is as plausible as the contesting party's position."