In this lawsuit filed under the Administrative Procedure Act (APA), CREW contended that the Freedom of Information Act (FOIA) requires the Department of Justice’s Office of Legal Counsel to make its legal opinions publicly available on an ongoing basis, without waiting for an individual to request those records. DOJ moved to dismiss on the ground that FOIA provides an adequate alternative remedy. Both DOJ and CREW took the position that FOIA does not empower the district court to order the agency to make the opinions available on an ongoing basis. The district court held that, even assuming this limitation on its power was correct, FOIA provided an adequate remedy because CREW could file individual FOIA requests for the opinions. The district court granted the motion to dismiss, and CREW appealed.
Public Citizen submitted an amicus brief arguing that FOIA’s own remedial provision creates a right of action to obtain an injunction requiring compliance with FOIA’s affirmative disclosure requirements and that the Court should consider the complete scope of the FOIA right of action in deciding whether a right of action is available under the APA. Public Citizen’s brief argued that FOIA’s remedial provision authorizes courts to provide the sort of prospective injunctive relief sought by CREW. And if FOIA does not, the brief argued, the APA provides a remedy because serial FOIA requests cannot adequately remedy the violation of a provision that requires agencies to disclose certain records without a FOIA request.
In early 2017, the D.C. Circuit issued an opinion holding that, although FOIA authorizes injunctive relief for violations of FOIA’s affirmative disclosure requirements, it does not allow a court to order the government to comply with those requirements. The court held that, to remedy a violation of the Act’s public disclosure requirements, a court can only order the agency to produce the materials to the specific plaintiff in the case on an ongoing basis.
For other litigation on this issue, see New York Legal Assistance Group v. Board of Immigration Appeals.