There Will Be No Vaughn Index (For Now)

Letters Blogatory’s FOIA case has hit another delay. Although I previously asked the court to order the State Department to produce a Vaughn index, although the Department didn’t oppose my motion, and although the court ordered the Department to produce an index by August 16, the Department now says it cannot produce the index until September 30. I am a big believer in litigation karma, and so I have not opposed the government’s request for an extension of time.

The government’s motion for an extension refers to a declaration that makes interesting reading for those interested in the workings of a big bureaucracy. It seems there was no central file for material relating to the State Department human rights reports. Instead, the Department made an initial decision about which offices’ records to search. None of these offices had any responsive documents. The initial list excluded the Office of the Legal Adviser. But in July the Department’s FOIA people finally asked the Office if it had responsive records, and on August 14—almost exactly two years after I submitted the request!—the Office provided approximately 150 responsive documents. The government now needs 45 days, it says, to review and perhaps redact those documents.

Look, I know that the State Department has more important things on its plate than my FOIA request, and I suspect that to officials within the Department who are not themselves responsible for FOIA compliance, FOIA probably seems like a nettlesome statute. But very strong public policies in favor of government openness and accountability favor FOIA, including the statutory time limitations built into the statute. It seems to me that the executive departments of government ought to be able to do a better job, in the twenty-first century, of locating responsive materials in a timely way, and if they can’t do that now, fixing the problem should be a national priority. And if, as apparently in my case, the government finds a particular FOIA request to be burdensome or vexing, it should reach out to the requester to try to narrow or refine the request rather than waiting two years for the requester to sue.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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