According to a newly released report by theGovernment Accountability Office, the federal government spends millions ofdollars to defend itself from Freedom of Information Act requests. The reportalso notes that while it is the responsibility of the Department of Justice totrack agencies' compliance with FOIA requests, there are not enough mechanismsin place to capture the specific details related to the costs of theselawsuits.

The investigation was requested by theHouse Committee on Oversight and Government Reform and the Senate Committee onthe Judiciary in a directive sent to the Government Accountability Office inApril. "Requesters repeatedly report to Congress the problems they haveencountered with the FOIA process. These problems include indefinite delays,excessive redactions, and other unnecessary barriers to accessing information,"the letter states.

The letter goes on to cite an AssociatedPress analysis, which found that 77 percent of all requests last year producedeither censored files or none at all.

The committees asked the GAO to perform anumber of tasks in its investigation, including conducting audits of agenciesin compliance with the FOIA requirements, cataloging the number of exemptionsand how they were used by each agency, and uncovering the methods used toreduce backlogged FOIA requests.

The GAO report analysedcosts spent on fighting 1,672 Freedom of Information Act (FOIA) lawsuits thathad decisions rendered between 2009 and 2014. For the purposes of theinvestigation, the GAO examined only the 112 lawsuits in which the plaintiffsprevailed, across 28 federal agencies. The report indicates that the costsassociated with these lawsuits are comprised of the DOJ's costs for defendingthe suits on behalf of the agencies involved, the agencies' costs, and attorneyfees and costs based on settlement agreements.

However, even in the examination of thissmall fraction of the total number of suits, the GAO found that the specificcosts associated with the lawsuits could "not be fully determined."

Though the FOIA requires that the JusticeDepartment report on the costs, the GAO found that there were no mechanisms inplace to keep track of the costs. "Justice does not collect and track all ofthe costs that its attorneys and staff incur for individual lawsuits in whichthe plaintiffs prevailed," the report reads. "Moreover, agencies involved inthe selected lawsuits did not have mechanisms in place to track FOIA litigationcosts where the plaintiff prevailed, thus hindering their reporting of thesecosts for 55 of the selected lawsuits."

Upon request for the information, the DOJresponded that without the tracking capabilities to produce the information,significant resources would be required in order to gather data from each ofthe 93 U.S. Attorneys' Offices across the country.

On several occasions in which records weremaintained, the amounts of attorneys' fees and costs specified by the DOJ weredifferent from the amounts reported by the defending agencies. The JusticeDepartment contends the discrepancies are caused as a result of the appealsprocess and settlement agreements. The inclusion of those costs is not requiredto be reported to Congress.  

Meanwhile, guidance from the Department ofJustice asks agencies to provide their total litigation-related costs to thedepartment as part of the reporting process, the report notes. Agenciesreported a total of $144 million in costs related to FOIA lawsuits from fiscalyears 2009 to 2014, but as to the 112 lawsuits in which the plaintiffsprevailed, only the costs related to 57 of the lawsuits could be provided. Thatfigure was a staggering $1.3 million.  

"For the remaining 55 selected lawsuitswhere the plaintiff substantially prevailed, litigation-related costs were notprovided by the responsible agencies," the report explains. "Officialsrepresenting these agencies generally stated that they did not have themechanisms in place to track FOIA litigation-related costs where the plaintiffsprevailed."

Those agencies defended their failure bypointing to the Justice's guidance, which does not require them to collect andreport the information.

The GAO makes several recommendations basedon its findings:

• That Congress require the JusticeDepartment to track and report on appeals and settlement agreements so thatthere are no discrepancies

• That Congress either require that theJustice Department and agencies to report on the actual cost information onlawsuits in which the plaintiffs prevailed, or that Congress require theJustice Department to at least provide a cost estimate for collecting andreporting information on costs incurred so that it can be an informed decisionas to whether the FOIA should be changed to mandate this requirement.

The GAO notes that the added costs relatedto the addition of that requirement might be a substantial enough reason towarrant not keeping track of that information: "Although requiring Justice andagencies to report actual cost information could lead to better transparencyregarding federal operations, costs would be associated with such reporting,"the GAO report said. "Considering these costs, as well as potential benefits,could help Congress in determining whether such a requirement would becost-effective for enhancing oversight of FOIA litigation-related operations."

Perhaps instead of opting against thisrequirement because of the additional costs that would be associated with suchreporting, however, Congress should consider why the reporting process would beso expensive in the first place. Congress should also be curious as to theexorbitant costs of defending the federal government from FOIA requests in thefirst place, and whether it is in fact worth it in most cases. What is sosecretive that the federal government feels justified in spending millions ofdollars in keeping it from the public?

The purpose of the FOIA is to increasetransparency, a point that is noted in the report. "FOIA establishes a legalright of access to government information on the basis of the principles ofopenness and accountability in government." By establishing the "right toknown" standard, the FOIA made it so that agencies are required to providejustification when denying access to a record. However, the failure on the partof the Justice Department and the defending agencies to maintain and report thecosts connected to these proceedings fails to fulfill the purpose of the FOIA.Allowing this to continue will simply lend to the already prevalent notion thatthe federal government can cloak itself in an air of secrecy. 

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