Is Justice Department Trying to Put FOIA Beyond Appeal?

COMMENTARY Crime and Justice

Is Justice Department Trying to Put FOIA Beyond Appeal?

May 17th, 2005 3 min read

F.M. Kirby Research Fellow in National Security Policy

Reporters in the nation's capital missed it, but a couple of paragraphs buried in a Justice Department official's testimony before an obscure congressional panel reveals what could be a dark cloud on the horizon for government accountability.

The cloud is Justice's enthusiasm for a Supreme Court decision that effectively says only rich people can challenge a federal bureaucrat's decision to keep secret government documents that ought to be public.

The official was Deputy Assistant Attorney General Carl Nichols, and his testimony was delivered to a House Government Reform Committee subcommittee hearing May 11 on whether the federal Freedom of Information Act (FOIA) needs to be reformed. Rep. Todd Platts, R-Penn., is chairman of the subcommittee.

Near the end of Nichols' testimony, he declared Justice Department support for the Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 605 (2001).

Until now, people who appealed a bureaucrat's withholding of documents requested under the FOIA could have their attorney's fees reimbursed by the federal government if their suit was the "catalyst" for the official to reverse the adverse decision.

Under the 5-4 decision in Buckhannon, though, citizens appealing the bureaucrat's decision to conceal requested documents can have their legal fees paid by the government only by gaining a favorable court decision. That means the bureaucrat can wait until the last minute and then provide the documents without having to pay the requestor's legal costs.

Nichols told Platt's subcommittee that "the Department of Justice believes that Buckhannon and its progeny represent sound public policy and should remain undisturbed."

Why is this a dark cloud for government accountability? Sen. John Cornyn, who has introduced FOIA reform legislation to restore pre-Buckhannon precedents, explains why the Court's decision could end FOIA appeals by everybody who doesn't have a fortune to pay lawyers:

"A government agency refuses to disclose documents even though they are clearly subject to FOIA. The FOIA requestor has no choice but to undertake the time and expense of hiring an attorney to file suit to compel FOIA disclosure.

"Some time after the suit is filed, the government agency eventually decides to disclose the documents, thereby rendering the lawsuit moot. By doing so, the agency can then cite Buckhannon for the proposition that because there is no court-ordered judgment favoring the requestor, the requestor is not entitled to recover attorneys' fees."

FOIA appeals often take years to complete and are terribly expensive, even under the best of circumstances. That's why it's vital for the "little guy" FOIA requestor to know a court can order an agency to pay his or her legal fees. Since all but a few FOIA requestors lack wads of money to pay high-priced lawyers, Buckhannon means thousands of FOIA appeals will never be filed.

What Cornyn describes is already happening. When Knight-Ridder Washington Bureau reporters filed FOIAs in February 2004 seeking documents on claims processing by the Department of Veterans Affairs, the department put up numerous obstacles, including demanding $41,250 in copying fees for irrelevant documents. Knight-Ridder appealed and a federal District Court told VA to get with it and start producing the requested documents. In March 2005, Knight-Ridder began publishing stories detailing thousands of cases in which veterans died years after appealing claims decisions that were never resolved.

Three days later, VA produced the final batch of requested documents and asked the Court to dismiss the case on the grounds that it had fully complied with the FOIA. Under Buckhannon, Knight-Ridder can't compel VA to pay its more than $30,000 in legal fees even though it is clear the media organization's suit forced VA to follow the law. Since few people can afford $30,000 in legal fees, Buckhannon means only requestors with deep pockets will ever take the government to court to force disclosure of documents that ought to be public in the first place.

No wonder Knight-Ridder's Clark Hoyt said VA was "stonewalling until it knew it could resist no longer. It forced us to spend thousands of dollars to compel its adherence to the law, delayed our stories many months and then caved at the last minute, knowing it had no chance of winning in court."

And this is the state of affairs the Justice Department wants to continue?

Mark Tapscott is director of the Center for Media and Public Policy at The Heritage Foundation (

Distributed nationally on the Knight-Ridder Tribune wire