FOIA: The Anticlimax

The State Department has now produced all of the documents responsive to my second FOIA request. I submitted the request on April 25 of this year, and so the process, from start to finish, took just over three months. Compared to the nearly three years I have been waiting for the response to my first request to be completed, that’s very speedy indeed! I suspect that in the world of FOIA, the squeaky wheel gets the grease.

Recall that the purpose of the second FOIA request was to try to understand what had passed between the Department and Chevron when the Department gave Chevron the opportunity to raise objections to the release of public records containing information that Chevron had provided to the Department. In March 2014, the government’s lawyer told me:

As to the “third party” that you inquire about, the Department is aware of your query and expects to identify the third party. However, at this time, the Department is still in the process of attempting to secure the permission of the third party for this disclosure. The Department has taken efforts to secure this permission, but it has been unusually complicated.

This led me to speculate that Chevron had made some real efforts to hold documents back, so I expected to see some interesting correspondence. But I was disappointed. It seems that the government notified Chevron’s lawyers of my request in October 2013, but that Chevron did not respond. The Department, perhaps in an especially solicitous mood, reminded Chevron’s lawyers of the issue in late June 2014, and Chevron then indicated that it had no objection to production of the documents. Now, it may be that something more was going on behind the scenes, since otherwise it is difficult to understand the government’s March 2013 statement that the issue was “unusually complicated.” Or it may be that “unusually complicated” was a euphemism for “somebody dropped the ball on this for the past several months.” In any case, it looks like there’s no real story here, or at least no real story that a FOIA request will get at.

Production of the documents I requested did not make my motion moot. I had also sought leave to raise the Department’s refusal to grant me expedited treatment as an issue in the case. That’s an issue that, to my mind anyway, is a classic example of a question that is “capable of repetition yet evading review.” So if I were a man of leisure I might have decided to press ahead with the point anyway. However, the government agreed, at my request, that it would not use its refusal to grant me expedited treatment in this instance as grounds to refuse me expedited treatment if I request it in connection with a future FOIA request, and so I’ve decided to withdraw the motion altogether.

I’m expecting a final production of documents next month, as well as the Department’s Vaughn index. Then we will see whether there is anything left to fight about.

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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