U.S. Undermining Openness By Cutting Off Access

By Brian Wolfman
June 3, 2003

Congress understands that when it creates important rights, the only way to make those laws a reality is to encourage people to go to court when their rights have been violated. Many of the civil rights, pro-consumer and "open government" laws of the 1960s and '70s have "fee-shifting" provisions. This includes the Freedom of Information Act - the law that generally requires the federal government to make its records public. Under these laws, when someone has to sue to make the government (or some other violator) obey the law, the losing defendant has to pay the winner's attorneys' fees - in contrast to most cases, where each side pays its own legal costs.

So, if the government refuses to reveal records to which the requester has a right under FOIA, the costs of the requester's suit is paid by the government. This fee-shifting principle is essential, because without it, most people with valid claims could not find a lawyer to go to court, and wrongdoing would go unpunished. Without fee shifting in FOIA cases, society would suffer because historians, scientists, health organizations and ordinary citizens would not be able to sue to lift the veil of secrecy on important information held by the government.

Here's a typical FOIA story, in which use of the courts was the key to overcoming government intransigence.

A science researcher writing a book on how to make pharmaceutical drugs safer asks the Food and Drug Administration for files concerning applications for federal drug approvals that were disapproved by the agency or abandoned for safety reasons. Some drugs that originally seem promising prove dangerous in the laboratory or in human trials, and these records can help show what works and what doesn't and how effectively government protects the public health. The FDA stalls, suggesting that many of the records may be privileged and need not be disclosed under FOIA, despite a federal statute saying that information in an abandoned or disapproved drug application can be kept secret only for "extraordinary" reasons.

Finally, the researcher sues the agency, as FOIA allows. My office, with its 30 years of FOIA litigation experience and an abiding interest in drug safety, sues on the researcher's behalf. Only then does the agency take the request seriously.

The FDA continues to argue that much of the information is privileged, but after a number of court filings, a conference in front of the judge, and painstaking negotiations, the court approves an agreement whereby various categories of documents will be reviewed and released.

Ultimately, the agency reveals FDA memoranda explaining safety problems with the various drugs, a significant victory since the government almost never releases internal records that reflect its policy deliberations.

Despite the unjustified delay, this story sounds pretty much like how FOIA is supposed to work. It would be nice if the government were more forthcoming with public information, but it's good to know that, if necessary (as it often is), the courts are there to back up FOIA's promise of openness. And, under FOIA's fee-shifting provision, the government can be expected to pay our legal fees, right? That's the way it's supposed to work and, until recently, fee shifting had worked that way for 30 years. But things have changed since 2001, when the Supreme Court decided the Buckhannon case. In that case, over the Clinton Justice Department's strenuous objection, the court decided that the lower courts had it wrong for all these years.

By a 5-4 vote, the Supreme Court said that if the government (or some other accused wrongdoer) responds to a suit by doing what it was asked to do - rather than requiring the court to rule on the case - the plaintiff is not entitled to attorney fees. In Buckhannon, the plaintiffs' lawyer spent hundreds of hours arguing that the Fair Housing Act and the Americans With Disabilities Act prevented the government from evicting disabled patients from a state-subsidized nursing home.

And the government agreed, but only after the lawyer filed, and tenaciously prosecuted, the lawsuit. Because the victorious patients' lawyer was required to work for free, he'll think twice next time he's asked to take on a civil rights case.

Let's return to FOIA. Once the government sees the handwriting on the wall, it often hands over disputed records, sometimes after years of time-consuming, expensive litigation. The Bush administration says that Buckhannon applies to FOIA cases, even though Congress stated explicitly, when it enacted FOIA, that fees should be available when FOIA cases settle. The Bush Justice Department has consistently argued to expand Buckhannon to every pro-consumer and civil rights statute in every conceivable situation, even in cases like that of the science researcher, where the court has ordered the government to produce documents under certain conditions according to a definite schedule.

We will fight the government's arguments in court, and, if necessary, we will ask Congress to restore fee shifting as it was originally intended. FOIA litigation is often complex and tedious, with the government fighting us at every turn - in other words, it's expensive.

But without the right to attorneys' fees, FOIA's commitment to open government cannot be fully achieved.


Brian Wolfman is a lawyer with the Public Citizen Litigation Group, a part of Public Citizen, a nonprofit consumer advocacy organization based in Washington. Readers may write to him at: Public Citizen Litigation Group, 1600 20th Street NW, Washington D.C. 20009; Web site: www.citizen.org.