Standing

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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.[1] If the plaintiff is not the requester, however, no amount of interest in the subject of the request can confer standing.[2]

Challenging Denials

Requesters have standing when they have been denied the information they requested.[3] 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.[4]

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.[5] 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.[6] 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.[7]

Assignment and Transfer of Standing

Generally, no person other than the original requester has standing to challenge an agency's response to their request.[8] 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.[9] Otherwise, only the requester has standing to bring a FOIA claim.[10] 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.[11]

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.[12] 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[,]"[13] 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.'"[14] 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."[15]

Accordingly, because the government gave "no adequate rationale for enforcing this waiver", the Court held it could not be invoked.[16]

Recent district court opinions on standing

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

References

  1. See Public Citizen v. F.T.C., 869 F.2d 1541, 1548 (D.C. Cir. 1989); Brandon v. Eckard, 569 F.2d 683, 687-88 (D.C.Cir.1977)
  2. See Donnell v. United States, 4 F.3d 1227, 1238 (3d Cir. 1993)
  3. See Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C. Cir. 1985); National Sec. Counselors v. C.I.A., 898 F. Supp. 2d 233, 254 (D.D.C. 2012), citing Zivotofsky ex rel. Ari Z. v. Secretary of State, 444 F.3d 614, 617–18 (D.C. Cir. 2006). See also United States v. Richardson, 418 U.S. 166, 204 (1974) (Stewart, J., dissenting) (“FOIA creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied . . . The statute requires nothing more than a request and the denial of that request as a predicate to a suit in the district court)
  4. See Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1039 (D.C. Cir. 1985)
  5. See Wadhwa v. Department of Veterans Affairs, 342 F. App'x 860, 862 (3d Cir. 2009); 5 U.S.C.A. § 552(a)(6)(C)
  6. Payne Enters. v. United States, 837 F.2d 486, 490–94 (D.C. Cir. 1988); Long v. IRS, 693 F.2d 907, 909 (9th Cir. 1982)
  7. Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086 (9th Cir. 2016)
  8. See McDonnell v. United States, 4 F.3d 1227, 1238–39 (3d Cir.1993) (“We think a person whose name does not appear on a request for records .... has no right to receive either the documents, or notice of an agency decision to withhold the documents.” (citations omitted)); Feinman v. FBI, 680 F.Supp.2d 169, 173 (D.D.C.2010) (“[A] plaintiff whose name does not appear on a FOIA request lacks standing to challenge its denial ....”)
  9. See SAE Prods. v. FBI, 589 F.Supp.2d 76, 80 (D.D.C.2008) (corporate agent requesting information “must adequately identify that he or she is making the FOIA request on behalf of the corporation in order for the corporation itself to have standing to pursue a FOIA action”); Three Forks Ranch Corp. v. Bureau of Land Mgmt., 358 F.Supp.2d 1, 3 (D.D.C.2005) (“[A]n attorney must adequately identify that he is making the FOIA request for his client in order for the client to have standing to pursue a FOIA action.”)
  10. See Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1104-05 (9th Cir. 2016)
  11. See Sinito v. U.S. Dep't of Justice, 176 F.3d 512, 516–17 (D.C.Cir.1999) (allowing son of deceased FOIA requester to be substituted as the plaintiff in FOIA litigation if the lower court determined that he was his father's legal representative under Rule 25(a))
  12. See, e.g., Caston v. Exec. Office for U.S. Attorneys, 572 F. Supp. 2d 125 (D.D.C. 2008) ("“Defendant . . . expressly waives ... all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought by him or by his representative under the Freedom of Information Act, set forth at Title 5, United States Code, Section 552, or the Privacy Act of 1974, at Title 5, United States Code, Section 552a.”)
  13. Price v. U.S. Dep't of Justice Attorney Office, No. 15-5314, 2017 WL 3318748, at *3 (D.C. Cir. Aug. 4, 2017)
  14. Price v. U.S. Dep't of Justice Attorney Office, No. 15-5314, 2017 WL 3318748, at *5 (D.C. Cir. Aug. 4, 2017)
  15. Price v. U.S. Dep't of Justice Attorney Office, No. 15-5314, 2017 WL 3318748, at *5 (D.C. Cir. Aug. 4, 2017)
  16. Price v. U.S. Dep't of Justice Attorney Office, No. 15-5314, 2017 WL 3318748, at *5 (D.C. Cir. Aug. 4, 2017)