Appeals Court Rolls Its Eyes At Goverment's Attempt To Dodge FOIA Litigation By Pretending It Didn't Know Who Was Seeking Documents

from the stop-being-deliberately-stupid dept

Government agencies, for the most part, treat public records requesters as weeds in the garden of governance: a pest that can never be fully eradicated, but rather tolerated with as much annoyance as possible. Whatever can't be made to disappear with hefty fee demands or months of stonewalling will be given as little attention and compliance as possible. This attitude has turned FOIA requesters into frequent litigators seeking to hold one branch of the government accountable by using another.

When Cheryl Brantley, a member of activist group A Better Way for BPA, requested records from the Bonneville Power Administration (run by the Department of Energy), she filled out the agency's online FOIA form and waited. And waited. And waited some more before finally suing.

BPA responded by declaring A Better Way had no standing to file a lawsuit. It decided to get hypertechnical about Brantley's FOIA submission, claiming no one but Brantley herself should be allowed to sue.

The district court granted the BPA's motion to dismiss for lack of standing. A Better Way appealed this decision, placing it before the Ninth Circuit Court of Appeals. The court is completely unimpressed with the BPA's attempt to turn a meaningless technicality into a motion to dismiss. From the decision's [PDF] summary: [h/t Brad Heath]

The government challenged the group’s standing and the district court dismissed the suit, saying that the submitted form did not adequately identify the organization as the requester. We disagree. FOIA forms should not be a “gotcha” proposition requiring a lexicographer to discern who made the request.

Brantley's request identified two parties as requesters: herself and A Better Way.

Further down in the form, she clicked a box designating this as a request by an "individual" for personal use. Later comments on the same form indicated Brantley was requesting this on behalf of A Better Way, referring to "technical advisers" who would help disseminate info obtained "to our members."

Even if the BPA wanted to get technical about Brantley's choice of "individual" on the online form, its own communications with Brantley made it clear the agency felt it was dealing with a group, rather than Brantley herself.

[O]n February 18, 2015, the agency sent a letter addressed to “Cheryl Brantley[,] A Better Way for BPA,” stating that BPA had been in touch with [David] Bricklin [A Better Way's attorney], granting a fee waiver, noting the complexity of the request, and estimating completion by September 30, 2015. On September 28, 2015, BPA sent another letter, addressed the same way, advising of its need to submit certain records to third-party entities for review and thus “extending the target date for BPA’s response to your request to March 31, 2016.”

The agency continued to communicate with A Better Way’s counsel. Significantly, on November 13, 2015, BPA sent an email to Bricklin with the subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - 5 U.S.C. § 552(b)(4) determination letters.” Two days later, BPA sent another email to Bricklin with a similar subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - communication with the requester’s counsel.”

The appeals court makes short work of BPA's attempt to dodge litigation predicated on its own failure to produce responsive documents.

Viewing the form as a whole, it is clear that the request was made on behalf of A Better Way, that the request was not for commercial purposes, that there was an obvious public interest related to BPA’s I-5 Corridor Reinforcement Project, and that the requester had “members,” hardly a characteristic of an individual requester. Any confusion in the electronic form was of BPA’s own making and could easily be fixed by including a place to check that the request is made “on behalf of” an organization or by adding “public interest organization” or “other” options under Type of Requester.

The court goes on to note that BPA certainly knew the group requesting documents and acknowledged -- through multiple communications with A Better Way's counsel -- that A Better Way was the ultimate recipient of the sought documents. Pretending otherwise is just conveniently disingenuous.

To the extent ambiguity exists with how Brantley filled out the form—and we do not think that any does—the follow-on correspondence between BPA and the requester affirms that A Better Way was the requester and that BPA treated A Better Way as the requester. For example, BPA addressed letters to “Cheryl Brantley[,] A Better Way for BPA,” twice placed “A Better Way” in the subject line of emails concerning the request, and regularly communicated with the organization’s lawyer. This treatment was unsurprising, as A Better Way and BPA were hardly strangers. During a six-month period from December 2009 to June 2010, for instance, the organization submitted ten FOIA requests to the agency. BPA cannot reverse course now and convince us that the organization with whom it was regularly corresponding and which it acknowledged as the requester should be out of court.

Finally, the court says common sense must be used when dealing with FOIA requesters, who are usually citizens untrained in the art of obfuscatory bureaucracy. The court points out BPA, on multiple occasions, made it clear through communications with the group's counsel that it knew it was dealing with A Better Way, not Cheryl Brantley acting of her own accord. The case is sent back to the lower court to allow A Better Way to continue suing BPA for records it still hasn't turned over. And hopefully the BPA will act in good faith in the future when being sued for unresponsiveness. But probably not. After all, it's not the agency's money being wasted. That comes from US taxpayers -- an apparently bottomless source of revenue.

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  • identicon
    Anonymous Coward, 4 Jun 2018 @ 10:16pm

    out_of_the_blue is really not going to like this, is he?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jun 2018 @ 4:15am


      why would you feel the need to "poke the bear" here? I have to believe you know you're just antagonizing ootb, and I'm sure most of us would rather have less noise and more signal.

      besides, don't you have to invoke the name three times to make the monster appear?

      reply to this | link to this | view in chronology ]

  • icon
    JustMe (profile), 5 Jun 2018 @ 3:51am

    Why can't the BPA just provide the documents?

    I think the phrase we often hear from the federal government "if you have nothing to hide" is particularly relevant here.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 5 Jun 2018 @ 4:49am

    There must have been names on those documents from BPA

    Why are those people, lawyers included, not being held to account personally?

    Following orders was no excuse then and using that excuse now should warrant a much harsher punishment

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2018 @ 8:17am

    "Listen, this whole system of yours could be on fire and I couldn't even turn on the kitchen tap without filling out a twenty-seven B stroke six... bloody paperwork"
    - Archibald 'Harry' Tuttle

    reply to this | link to this | view in chronology ]

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