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Government FOIA lawsuit costs 'cannot be fully determined'

A Government Accountability Office (GAO) investigation found the cost of Freedom of Information Act (FOIA) lawsuits against the federal government where the plaintiffs win “cannot be fully determined” because not all federal agencies track their legal expenses.

The Sept. 8 report was written at the request of Sens. Charles Grassley (R- Iowa) and Patrick Leahy (D-Vt.), who wanted the GAO to look into how much money federal agencies spend defending lawsuits in which either judges ruled, or the government admitted, "that the sued agency withheld or censored information that the public should have had access to under FOIA.”

In their letter to Comptroller General Gene Dodaro, the senators said while federal agencies are required to report their annual FOIA litigation costs, "the reports fail to distinguish between the litigation costs in those cases in which the court found the government to have lawfully complied with FOIA, and the litigation costs in those cases in which the complainant substantially prevailed.”

GAO investigators, led by information management and technology resources issues director Valerie Melvin, studied 1,672 FOIA lawsuits filed between 2009 and 2014, where plaintiffs prevailed. 

From this group, the GAO selected 112 cases from 28 different federal agencies where it determined plaintiffs “substantially prevailed” in court, and were awarded attorneys fees and costs as part of the settlement.

But, the GAO said, "Justice officials stated that the department does not specifically track costs for lawsuits in which the plaintiffs substantially prevailed and that its attorneys are not required to track such costs for individual lawsuits.” 

GAO investigators cited the example of an associate deputy general counsel at the Department of Defense (DOD), who told them the "department’s attorneys did not track their work on any particular FOIA cases and that there were no other offices within the department that tracked the hours worked by their staff on individual cases.”

The GAO received similar responses from a host of federal agencies, including the Department of Homeland Security (DHS), the Consumer Financial Protection Bureau (CFPB), the State Department and the Justice Department.

GAO investigators said 17 of the 28 agencies it reviewed did have processes for account for individual FOIA lawsuits.

This allowed investigators to account for $1.3 million in legal costs for 57 of the 112 cases it reviewed. 

“The remaining agencies did not have a mechanism in place to track FOIA litigation-related costs where the plaintiffs prevailed,” the GAO said.

"These agencies said costs were not tracked because [the Justice Department’s] guidance does not require agencies to collect and report costs related to specific lawsuits, or if the plaintiff prevailed as a result of a lawsuit,” investigators said. 

The GAO said collecting case-level data where the government is found at fault “could enhance transparency in federal operations.” 

But, the GAO said, this would likely require “costly modifications to agencies’ information systems and business processes.” 

The GAO recommended Congress consider requiring the Justice Department to provide an annual "cost estimate” for defending FOIA lawsuits where the plaintiff prevails, and amending the FOIA law to require the DoJ to report any changes in plaintiffs’ awards resulting from appeals or settlements. 

Lee Lofthus, the assistance attorney general for administration, deflected the GAO’s concerns, saying that of the “nearly five million FOIA requests that have been processed since 2009, only a fraction of a percent have involved FOIA litigation.”

“Of that,” Lofthus said, “only a very small percentage meet the focus of GAO’s audit” and represent a “fraction of a fraction of a percent of overall FOIA activity.”

The GAO said 3,350 FOIA lawsuits were filed between 2006 and 2015, and that the number filed during that period increased 57 percent.

Lofthus said the Justice Department has taken a number of steps to enhance its FOIA reporting, including those that result in litigation.

“In the interest of transparency,” Lofthus said, "the Department goes beyond the required elements [of its annual FOIA report] and also includes any indication of attorneys fees and costs that result from a settlement agreement whenever this information is available.”

Lofthus said the Justice Department would work with the GAO to “improve our programs,” but also said there were “limited Federal resource” to spend on the GAO’s suggestions to Congress.