Release of Records in Litigation

This article is part of a series on Litigation

Introduction

Once in litigation, requesters and agencies will frequently negotiate (and courts will sometimes order) rates for the agency to process records if it has not already done so.

Processing Rates

A collection of decisions ordering processing rates higher than 500 pages/month:

• In Open Society Justice Initiative v. Central Intelligence Agency and Department of Defense, the Southern District of New York denied a motion to reconsider its order requiring the agencies to process records at a rate of 5,000 pages per month.
• In Huddleson v. FBI, the Eastern District of Texas ordered the FBI to process approximately 20,000 pages in under three months.
• In Finders Keepers USA LLC v. United States Department of Justice, Judge Mehta of the D.D.C. ordered the FBI to process the plaintiff's FOIA request at a rate of 1,000 pages per month.
• Seavey v. Dep't of Justice (ordering FBI to proces 2,850 pages per month)
• Clemente v. FBI (ordering FBI to process 5,000 pages per month)
• ACLU v. Department of Defense (ordering collection of DoD entities to process between 17,000 and 20,000 pages in 30 days)
• Judicial Watch, Inc. v. U.S. Department of Energy (ordering various agencies to processing records, including EPA to process 7,500 pages within 20 days)
• NRDC v. Department of Energy (Requiring Department of Energy to process "vast majority" of 7,500 pages within approximately one month)

Clawback of records

Occasionally agencies will disclose records responsive to a given FOIA request and later claim the disclosure was "inadvertent" and contains purportedly exempt information. In such cases agencies have on occasion asked FOIA requesters to delete, destroy, and/or not disseminate the records the agency alleges were inadvertently disclosed. The U.S. District Court for the District of Columbia recently opined on the Department of State's request that two plaintiff-requesters in a FOIA matter delete or destroy records they received pursuant to FOIA which the agency claimed contained information exempt under Exemption 7(F):

[T]he Department places the cart before the horse in arguing that the Court should first consider whether its asserted withholdings are proper, and, then, if so, the Court should consider whether the records must be returned. But absent legal authority indicating that the Court has the authority to order that a FOIA recipient return records that were inadvertently released without redactions, the Court has no reason to consider whether the proposed redactions would be proper, were the Department allowed a mulligan.

The even more substantial difficulty that the Department faces is that it fails to identify any authority that the Court has to order Plaintiffs to return the unredacted versions of the spreadsheets. Rather, the Department cites a single decision from the Northern District of California directing a FOIA plaintiff to return a production that include “inadvertently produced documents,” Hersh & Hersh, 2008 WL 901539, at *9, but that decision offers no legal analysis and cites no precedent in support of that directive. More importantly, if the Department believes that there is a sound basis for the Court to take the extraordinary step of ordering a news organization and a journalist to return materials to a government agency, which they obtained through no unlawful or improper action, it must do far more than include a single sentence on the final page of a reply brief. The questions posed by the Department's request are of great importance, and, if the Department wants to pursue the issue, they deserve more serious treatment than that.