Even for its strongest advocates and those who regularly exercise the rights it grants, the Freedom of Information Act (FOIA) is often reduced to its most-invoked provision: the obligation of federal agencies to produce specific records in response to requests under 5 U.S.C. § 552(a)(3). Though actually obtaining any requested documents often proves to be a protracted process, the persistent requester (and perhaps plaintiff) will find that this provision can be a valuable tool.
But this is not the only way FOIA makes government documents available to the public. FOIA also requires agencies to proactively publish in the Federal Register, or make available in an electronic “reading room,” certain categories of documents under §§ 552(a)(1) and (2), respectively. The reading room provision covers adjudication opinions, guidance, manuals, records released to requesters under (a)(3), records likely to be the subject of future requests, and records that have been requested at least three times. In its recent decision in Citizens for Responsibility in Washington v. U.S. Department of Justice (“CREW”), No. 16-5110 (Jan. 31, 2017), the United States Court of Appeals for the District of Columbia Circuit made clear that FOIA’s reading room provision contemplates far-reaching remedies for the plaintiff demonstrating its violation, and that it too can serve as a powerful vehicle for effecting government transparency.
The plaintiffs in CREW requested that the Department of Justice make opinions of the Office of Legal Counsel available under FOIA’s reading room provision, suing for broad relief when DOJ refused. The plaintiffs sought to subject DOJ to a prospective injunction, creating an affirmative obligation to disclose documents, including those not yet in existence, to the public at large. But neither CREW nor DOJ believed that such relief was available under FOIA, so CREW had sued under the Administrative Procedure Act’s catch-all provision for judicial review of agency action instead of under FOIA.
The D.C. Circuit disagreed with that premise, holding that courts maintain their “broad equitable authority,” including “wide latitude” to fashion remedies, under FOIA. Reviewing its precedent, the court found that a district court thus has authority to issue a prospective injunction incorporating an affirmative obligation to disclose documents. While it found that it would be impermissible for such an injunction to require disclosure to the public, as CREW had requested, the court saw no issue with requiring disclosure to a particular plaintiff—who is then free to disseminate the documents.
The court did offer a few words of caution, noting that it had not, of course, reached the merits and decided whether CREW was in fact entitled to an injunction with the above characteristics. It also warned that it “expect[ed] that only a rare instance of agency delinquency in meeting its duties under the reading-room provision” will warrant such an injunction.
The crucial question of when a prospective injunction with an affirmative obligation to disclose is actually available is thus unanswered. But the decision in CREW affirms, in principle, that FOIA embodies a strong policy of government transparency—and provides citizens with the tools to make this ideal a reality.