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Greenberg: More Thoughts on FOIA Reform

Updated: Apr 15

The state’s editorialists continue to react to my proposals to expand our Freedom of Information Act rights (see previous posts here and here).

“State Rep. Dan Greenberg files more bills having to do with the state’s Freedom of Information Act than any other legislator. Sometimes we wonder if the Little Rock legislator is as big a fan of open government as he is an opponent of what he perceives as the good ol’ boy network.”

Both of these seem like good motivations to me!

An op-ed column by Meredith Oakley in Sunday’s Arkansas Democrat-Gazette was less thoughtful  Oakley echoes one of the Log Cabin Democrat’s criticisms – that a blizzard of citizen FOIA requests would bring things to a halt in the attorney general’s office. As I argued before, I see little reason to believe this is true.

(**Kinkade editorial intrusion: If you’re interested in reading Oakley’s column in its entirety, here’s a link to the Arkansas Democrat-Gazette’s nightmarish labyrinth of a website. Good luck finding the piece over there, because I gave up searching**).

I’m puzzled by Oakley’s argument that it won’t cost people any money if they sue over denial of FOIA rights and have a strong case: “As for money,” she writes, “appellants whose cause is just shouldn’t be out any, because the FOIA requires the court to hold the defendant responsible for reasonable costs incurred by the appellant, or plaintiff.”

Regrettably, I think Oakley is just wrong on the facts here. Let me explain.

The citizen-requester who wants to hire a lawyer to try a FOIA claim should be prepared to shell out around $10,000 in legal fees. Even if the plaintiff prevails in trial court, the state with its full-time staff and virtually bottomless pockets may appeal, and the plaintiff will be compelled to shell out thousands of dollars more to defend the win. And even if the plaintiff prevails on the merits and receives a fee award, the governmental defendant may appeal only the fee award, based on the complex three-part test described below.

The FOIA provides almost no chance for a successful plaintiff to recover costs or attorney’s fees. First, there is no recovery at all permitted against the State “or any of its agencies or departments,” only against local governmental entities. Rep. Lindsley Smith tried to change this by amending the FOIA in 2007. Her bill was vigorously resisted by Attorney General Dustin McDaniel and other state agencies, and it failed.

Second, even when a defendant is an agency of local government, the bar for recovery of costs or fees under the FOIA is very high. The plaintiff may recover only when (1) the plaintiff “substantially prevailed,” and (2) the position of the defendant was not “substantially justified,” and (3) no other circumstances make recovery “unjust.”  This vigorous, conjunctive three-part test gives the defendant three opportunities to avoid a fee award, and the plaintiff an enormous burden—especially without an attorney.

On the merits of the three-part test, it is extremely difficult for the plaintiff to prevail. Courts tend to defer to governmental entities, heightening the burden on the plaintiff. Experience suggests that if the governmental defendant can articulate any rational basis for resisting the FOIA request, even in part, then the court will not make a cost or fee award.

In sum, the FOIA provides little promise of cost or fee recovery, and indeed no possibility of recovery at all when the state or one of its agencies is a defendant. The plaintiff is overwhelmingly likely to be on the hook personally for thousands of dollars in costs and legal fees to pursue review of a denied request. Litigation is thus expensive and inefficient to hold out as the sole means of FOIA enforcement.

States that have most effectively handled FOIA enforcement have developed new bureaucratic entities: FOIA commissions. Unless Arkansas is prepared to front the costs for such a more elaborate enforcement mechanism, tweaking the current system at least to expand the scope of advisory or administrative review on the part of the attorney general’s office is a small but important step.

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