April 4, 2024 FOIA Meeting. Litigation Costs, Employee Representation.

Hello. This is Jackson.

This Committee is doing phenomenal work.
At the last FOIA Advisory Committee meeting one commenter talked about three
things:

First. Rights of civilian employees to free, individual DOJ representation in
FOIA litigation gone bad, citing 28 CFR at 50.15.

Second. Unauthorized Records Disposition Complaints to NARA.

Third. An agency that won a DOJ OIP Sunshine award despite six open FOIA
litigations.
On Civilian Employee Individul Legal Representation in FOIA
the commenter said:

“Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States
reasonable attorney fees and other litigation costs … the Special Counsel
shall promptly initiate a proceeding to determine whether disciplinary action
is warranted.” That’s 5 USC 552 (F)(i).
[This is true even if the government ultimately produces records during
litigation and then prevails on summary judgement having produced ordered
records during litigation].

So, if you were an agency employee involved in a messy FOIA litigation where
someone may have helped you with inaccurate sworn declarations or where
records were altered or where records were destroyed, you may seek immediate,
free individual DOJ legal representation in a closed case before a Plaintiff
files a fee petition with the court. Your agency counsel may have already
obtained separate DOJ representation. FOIA is not exempt from other federal
laws with serious consequences. You must protect your own interests.

Litigation Costs.

I read that litigation cases are exploding and that attorney and cost fee
awards above $100,000 are increasing because of agencies’ obdurate behavior
or bad behavior intentionally prolonging litigation for years hoping
plaintiffs will quit.

There is one case on Pacer.gov. An agency admitted that a FOIA Officer’s
sworn declaration was materially false, and the FOIA Officer admitted under
oath that he/she had altered records during litigation. An agency manager
admitted that he/she had destroyed records despite the agency being given
five legal notices identifying records and with notices to preserve records
for judicial review.

FOIA is not exempt from other federal statutes. Civilian employees must
protect their own interests.

Thank you.