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]

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))