Understanding federal court litigation to compel disclosure under the Freedom of Information Act

Introduction

The Freedom of Information Act gives you the right to access federal government records. But agencies often resist disclosure—they delay, redact heavily, or claim exemptions. When agency stonewalling prevents you from getting the records you need, federal court litigation may be necessary.

This guide explains when you can sue under FOIA, how the litigation process works, and what to expect.

FOIA Basics

Your Right to Records

FOIA (5 U.S.C. § 552) requires federal executive branch agencies to disclose records upon request, unless an exemption applies. The law reflects the principle that government records belong to the public.

What FOIA covers:

Documents
Emails
Memoranda
Reports
Data
Photographs
Any recorded information

What FOIA does not cover:

Congress
Federal courts
State and local governments (separate state FOIA laws apply)

The FOIA Process

Request: Submit written request to agency
Response deadline: Agency has 20 business days (extendable)
Production or denial: Agency produces records or explains withholdings
Administrative appeal: Challenge denials internally
Litigation: Sue in federal court if administrative remedies fail

When Can You Sue Under FOIA?

Constructive Denial (No Response)

If the agency fails to respond within statutory deadlines, you can treat silence as denial and sue.

Deadline: 20 business days, extendable by 10 days for unusual circumstances

After deadline passes: You may file suit immediately. No administrative appeal required when agency fails to respond.

Express Denial

If the agency denies your request or produces inadequate documents, you typically must exhaust administrative remedies before suing.

Exhaustion requirement: File administrative appeal and receive denial (or wait for constructive denial) before federal court.

Exception: Some courts find exhaustion satisfied when agency position is clear or appeal would be futile.

Partial Production with Redactions

When agencies produce records but redact or withhold portions:

Review what was provided
Assess exemption claims
File administrative appeal challenging withholdings
After appeal denial, sue to challenge improper withholdings

Inadequate Search

If the agency conducts an inadequate search and fails to locate responsive records:

Document search inadequacy
Administrative appeal
Litigation challenging search adequacy

FOIA Exemptions

Agencies may withhold records under nine exemptions. Litigation often involves challenging improper exemption claims.

Exemption 1: Classified Information

National security information properly classified under executive order.

Litigation issue: Was information properly classified? Is segregability possible?

Exemption 2: Internal Personnel Rules

Internal agency rules and practices.

Note: Narrowly construed after Supreme Court decision in Milner v. Dep't of Navy.

Exemption 3: Statutory Exemptions

Information specifically exempted by other statutes (tax returns, CIA files, etc.).

Litigation issue: Does the cited statute qualify as an Exemption 3 statute?

Exemption 4: Confidential Business Information

Trade secrets and confidential commercial or financial information.

Litigation issue: Was information actually confidential? Would disclosure cause competitive harm?

Exemption 5: Deliberative Process

Pre-decisional, deliberative communications within or between agencies.

Litigation issues: Is the document pre-decisional? Is it deliberative? Was it adopted as agency position?

Exemption 6: Personal Privacy

Information that would constitute clearly unwarranted invasion of personal privacy.

Litigation issue: Balancing privacy interest against public interest in disclosure.

Exemption 7: Law Enforcement

Records compiled for law enforcement purposes, with various sub-exemptions for interference, sources, privacy, safety, etc.

Litigation issues: Was record compiled for law enforcement? Does specific harm claimed apply?

Exemption 8: Financial Institutions

Examination and regulatory information about financial institutions.

Exemption 9: Geological Information

Geological and geophysical information concerning wells.

The FOIA Litigation Process

Filing Suit

Venue options:

District where requester resides
District where records are located
District of Columbia (all agencies have presence)

Complaint contents:

Identity of requester
Description of records sought
Agency involved
Exhaustion of administrative remedies (or excuse)
Request for injunctive relief compelling disclosure

Filing fee: Standard civil filing fee ($405)

Agency Response

After complaint is filed:

Agency may produce additional records
Agency may file motion to dismiss
Agency may file answer defending withholdings

Vaughn Index: Court may require agency to produce a Vaughn index—detailed document-by-document justification for each withholding.

Briefing

FOIA cases are typically decided on summary judgment:

Plaintiff's motion for summary judgment
Defendant's cross-motion for summary judgment
Supporting declarations and exhibits
Oral argument (if court grants)

In Camera Review

Court may review withheld documents privately to assess exemption claims. This allows judicial scrutiny without public disclosure.

Decision

If plaintiff prevails:

Court orders disclosure of improperly withheld records
Court may award attorney's fees
Court may issue declaratory judgment

If agency prevails:

Withholdings upheld
Case dismissed

Appeal

District court decisions are appealable to the relevant circuit court of appeals.

Attorney's Fees

Eligibility

FOIA allows attorney's fee recovery when:

Plaintiff "substantially prevailed"
Award is "appropriate"

Substantially Prevailed

You substantially prevail when:

You obtain court judgment in your favor
Agency produces records after litigation filed (catalyzing disclosure)

Four-Factor Test

Courts consider:

Public benefit: Does disclosure serve public interest?
Commercial benefit: Is requester commercially motivated?
Government conduct: Was agency reasonable in withholding?
Requester's interest: What is requester's personal stake?

Fee Calculation

Fees are calculated using lodestar method (reasonable hours × reasonable rate). Courts may adjust for case results and other factors.

Strategies for Success

Document Your Request

Submit clear, specific requests
Keep copies of all correspondence
Track deadlines
Document agency responses (or non-responses)

Exhaust Properly

File administrative appeals timely
Address agency's exemption claims
Preserve all arguments for litigation

Focus Your Challenge

Identify specific withholdings to challenge
Prioritize most important documents
Focus on clearest exemption violations

Consider Segregability

FOIA requires agencies to release segregable portions of records. Even if some information is exempt, non-exempt portions must be produced. Challenge failures to segregate.

Document Public Interest

For attorney's fee purposes, document the public interest served by disclosure:

Media or public dissemination plans
Research purposes
Accountability objectives

Common FOIA Litigation Scenarios

Scenario 1: Total Silence

Situation: You filed a FOIA request six months ago. No response.

Option: File suit immediately. No administrative appeal required when agency fails to respond.

Scenario 2: Heavy Redactions

Situation: Agency produced documents but most content is redacted under Exemption 5 (deliberative process).

Option: File administrative appeal challenging redactions. After denial, sue and challenge whether documents are truly pre-decisional and deliberative.

Scenario 3: "No Records Found"

Situation: Agency claims no responsive records exist, but you believe records should exist.

Option: Appeal the adequacy of the search. After denial, sue and challenge whether agency conducted a reasonable search.

Scenario 4: Excessive Delay

Situation: Agency acknowledged request but processing has taken two years.

Option: Sue to compel production. Court can order expedited processing.

Frequently Asked Questions

There's no specific FOIA statute of limitations, but the general six-year limit for APA claims applies. However, don't wait—sue promptly after exhausting administrative remedies.
While pro se (self-represented) FOIA litigation is possible, agency litigation tactics and procedural requirements make counsel valuable. Attorney's fee recovery makes representation more accessible.
If the agency fails to respond within statutory deadlines, you can sue immediately (constructive exhaustion). For express denials, you typically must appeal first.
A Vaughn index is a detailed document-by-document, exemption-by-exemption justification for withholdings. Courts often require Vaughn indexes to evaluate agency claims.
Yes, but fee categories (commercial, news media, educational, other) determine what fees apply. Fee waivers are available for requests serving public interest.
Agencies must preserve records subject to FOIA requests. Destruction of records after a request may constitute spoliation and support adverse inferences.
Generally, no. FOIA applies to federal agencies, not contractors. However, records in agency possession from contractors may be FOIA-accessible.

Is FOIA Litigation Worth It?

Consider Litigation When:

Records are important to your objectives
Agency position is unreasonable
Exemption claims are weak
Public interest supports disclosure
Attorney's fees may be recovered

Alternatives to Consider:

Congressional inquiry
Inspector General complaint
Media pressure
Negotiated resolution with agency

Get Help With Your FOIA Case

DC Federal Litigation Counsel represents clients in FOIA litigation in DC District Court and other federal courts.

We provide:

FOIA request drafting
Administrative appeal preparation
Federal court FOIA litigation
Exemption challenges
Attorney's fee recovery

Contact:

Email: foia@dcfederallitigation.com
Phone: 956-224-9372

Schedule FOIA Consultation

FOIA Litigation 101: When to Sue for Government Records