Information and document requests under the Freedom of Information Act and analogous state public records laws can be powerful and relatively inexpensive tools in a party’s litigation toolbox and are not only reserved for plaintiffs. Whether attempting to uncover pre-litigation discovery or pre-suit intelligence, assessing a potential claim’s strengths or weaknesses, business intelligence, probing private party and government interactions and influence, or preserving and uncovering potentially relevant documentation to litigation or government investigations, public records requests can be a useful mechanism parties should strongly consider.
The Freedom of Information Act[1] (FOIA) is a federal law requiring all executive branch agencies of the federal government to disclose any previously unreleased, unclassified documents and information under their control upon request from the public, subject to nine categories of exemptions:
Records under the control of an agency are defined as “materials [that] have come into the agency’s possession in the legitimate conduct of its official duties.”[2]
Anyone, a natural person or an organization, may make a FOIA request and need not specify the reason for the request. Each federal agency has an office dedicated to the processing of FOIA requests. An agency receiving a FOIA request must respond within 20 days, notifying the requester whether the sought information can be released.
If the agency determines the information cannot be provided or misses the 20-day window to respond, the requester has the right to an administrative appeal. The agency must respond to the appeal within 20 days, and if the agency denies the appeal or misses the 20-day window, the statute provides the requester with a private right of action.
While FOIA is best known for its applications in investigative journalism and academic research, it can also be used to discover information about counterparties in litigation that might otherwise be difficult to acquire in formal discovery. When businesses interact with the government, their business information frequently comes under the control of government agencies subject to FOIA. This can render a business’s information readily accessible to the public—and more importantly, accessible to competitors or counterparties in litigation.
Unlike formal document discovery in litigation, the FOIA process does not require that a requester demonstrate a specific need for the requested information or relevance to any specific purpose. Accordingly, unless business information under government control is protected by one of the nine FOIA exemptions—most commonly exemption 4 for trade secrets—it will be subject to disclosure pursuant to a FOIA request more easily than via traditional document discovery in litigation.
In litigation, requests for the production of documents are subject to significant limitations enshrined in the Federal Rules of Civil Procedure or their state court civil procedure analogues. These limitations constrain document discovery to matters relevant to the dispute at hand and subject them to analyses for cost, burden, and proportionality. FOIA requests are subject to no such limitations. If one of the nine exceptions does not apply to prevent disclosure, the agency has no discretionary authority and is bound to produce the requested documents.
Accordingly, a party engaged in litigation with a counterparty whose business information is routinely submitted to regulatory agencies may wish to consider making a FOIA request where the counterparty’s business information might prove useful evidence in prosecuting or defending a claim. This strategy has applications in a wide variety of cases, most obviously in commercial litigation.
However, its utility does not stop at business litigation. Those seeking to challenge the legality of executive actions may be able to use FOIA requests to augment traditional document discovery, uncovering wide-ranging documentation of agency actions, including interactions between the government and private parties, such as agencies’ contracts with outside counsel and communications in connection with considering the retention of outside counsel.
FOIA requests may have value in litigation beyond the course of the lawsuit itself. Prior to the initiation of litigation, FOIA requests can uncover information that helps a party determine whether to initiate a suit, how to plead its claims, and better understand the facts likely to find their way into the record once the litigation commences.
The utility of FOIA as a discovery tool does not end with government agencies themselves. Although FOIA does not usually apply to private parties, where a government agency subject to FOIA exercises “extensive, detailed, and virtually day-to-day supervision” over a private party, the private party may yet be subject to FOIA.[3] In some heavily regulated industries, FOIA requests might be submitted directly to counterparties in litigation.
All states have open records acts, analogous to the federal FOIA, that require state and local governments to make documents and information under their control available to the public. While these statutes have a similar purpose and superficially similar structure to FOIA, their specific contours vary widely, and they are subject to disparate sets of exemptions and limitations. For example, some states may exclude prison inmates from making requests, and others may only include state citizens.[4]
Both the federal FOIA and its state open records act analogues can be a valuable tool in defending actions initiated by state or federal regulatory authorities or by state attorneys general. When an investigation is initiated by these authorities, they often issue administrative subpoenas or another compulsory process in which a target entity must divulge information but does not receive reciprocal discovery as it would in a lawsuit. At a minimum, the target entity is knocked back on its heels and left playing catchup.
When this happens, a target entity can use FOIA or a state open records act to obtain the records of the investigating authority as a substitute. The records involved tend to be voluminous, as the veritable alphabet soup of federal agencies frequently coordinate and communicate with each other on investigative matters. And where different authorities—be they different federal agencies, different state attorneys general, or other state regulators or state executives—are working at cross-purposes, records in the possession of one authority may assist an entity in resisting investigation by another.
In past eras, the voluminous nature of these records constituted a significant drawback to wide usage of FOIA and state open records acts. However, issuing parties can now leverage a combination of traditional or classic AI tools with new generative AI tools to review productions made in response to records requests, reducing the level of time and effort to find the needle in the haystack, thereby leveling the playing field and putting the authorities on defense.
If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following:
[1] 5 USC § 552
[2] State of Missouri, ex rel. Garstang v. US Dept. of Interior, 297 F.3d 745 (8th Cir. 2002) (quoting US Department of Justice v. Tax Analysts, 492 US 136, 144-45 (1989).
[3] Forsham v. Harris, 445 US 169, 180 (1980).
[4] See, e.g., McBurney v. Young, 569 US 221 (2013) (upholding state public records act that excluded non-state citizens from making requests).