Court considers limits on duplicative FOIA requests

The Supreme Court listened to oral arguments today concerning potential limitations on the right to request federal agency documents after the rejection of the same request had already been unsuccessfully litigated by another party. 

Represented by Public Citizen, petitioner Brent Taylor is challenging a D.C. Court of Appeals decision that found Taylor was precluded from requesting documents from the Federal Aviation Administration because another party with whom Taylor was associated had already lost a case for the same documents in the 10th Circuit. The Reporters Committee for Freedom of the Press signed on to an amicus brief filed by The National Security Archive in support of Taylor.  

Taylor, an Iowa resident and mechanic who restores antique aircraft, filed a Freedom of Information Act request with the FAA for records related to the rare F-45 aircraft just a week after the U.S. Court of Appeals for the 10th Circuit denied Greg Herrick’s FOIA appeal to obtain the same documents.  

In denying Taylor’s appeal of the FAA’s rejection, the D.C. Court of Appeals emphasized connections between the two FOIA requesters, including the fact that Herrick had asked Taylor to file the request while also hiring Taylor to fix his plane.

Taylor has also been represented by Herrick’s lawyer in the case.

Ultimately, the D.C. appellate court found that Taylor’s right to be heard had been satisfied through “virtual representation” by Herrick.  But during arguments today, a majority of justices seemed skeptical that a sufficient bond existed between the two FOIA requesters to preclude Taylor’s claim.

Justices Antonin Scalia and Ruth Bader Ginsburg were particularly outspoken in acknowledging that FOIA permits anyone to request federal agency documents, regardless of the requester’s purpose.  

Since Congress intended FOIA to be used broadly by a near limitless number of parties, Justice Scalia quipped that respondents were confronting "a thousand-headed monster."  

“Your proposal for a solution is to cut off one eyebrow,” Scalia said.  

Justice Ginsburg suggested that while an explicit, pre-existing recruitment or financial agreement between Herrick and Taylor may have indicated privity between them, there was no evidence that Taylor had any knowledge of Herrick’s case while it was being litigated.  

“How can somebody be bound by litigation when they had no notice, no opportunity to be heard?” Ginsburg asked rhetorically.  

Chief Justice John Roberts appeared most sympathetic to the respondents’ perspective, putting forth several hypotheticals in which an association or law firm could file a FOIA request to be followed up by identical requests by the group’s individual members or the firm’s clients. Beyond the implication that such scenarios could overwhelm government FOIA offices,  Roberts stopped short of saying so directly.