How to file a FOIA lawsuit

If your appeal is denied, or if the agency fails to respond to your appeal within 20 working days, you may file a FOIA lawsuit in the United States District Court most convenient to you, nearest the agency office where the records are kept or in the District of Columbia. Though technically you have up to six years after the date on which your appeal was denied to file a lawsuit, you should try to file the suit as soon as possible in order to demonstrate to the court your need for the information.18

The Federal Courts Improvement Act removed the automatic expedited judicial review provisions from a number of statutes, including FOIA. However, under that law expedited processing will still be given by a court whenever “good cause” can be shown. The statute does acknowledge that in FOIA cases the need for timely release of information will qualify under the “good cause” standard.19

Although there are immediate financial costs for filing any complaint in federal district court, filing a FOIA complaint should be relatively inexpensive and simple. Sometimes, as soon as a complaint is filed, the government will capitulate and release documents without further litigation. Federal courts allow non-lawyers to file complaints against the government without the assistance of an attorney. If your case is a routine denial of documents that you think are clearly covered by FOIA, you may wish to draft and file your own “short-form” complaint using our iFOIA system, or by copying a Sample FOIA Complaint.

Also consider filing a “Motion for Vaughn Index” using our iFOIA system, or by copying a Sample Vaughn Motion. This is a formal request asking the court to order the government to give you an index describing the documents it is withholding and the justification it claims for withholding each piece of information.20

However, while a Vaughn index is extremely useful in establishing your case, it may not be granted immediately by the court if you ask for it along with your complaint. You must often wait until the government has answered your complaint before the court will consider your motion for a Vaughn index.

If your case appears to be complex or to involve special problems, you might want to obtain the services of a private attorney. Journalists can contact the Reporters Committee to help you decide if an attorney would be helpful.

After you file your complaint, the burden is on the government to come forward and justify the withholding of the information. Courts often demand that the government show precise and detailed reasons why it refuses to release the information. When the government replies, you will obtain a fairly good indication of how strong or weak its case is and how much it will cost to continue the lawsuit.

FOIA provides for the payment of your attorneys fees and court costs if you have “substantially prevailed” in your lawsuit. Prior to the 2007 amendments this required a court order declaring release of the information. Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — you are considered to have “substantially prevailed” and may recover fees.

Some courts will not award you attorney’s fees if you have argued your case yourself.

18 28 U.S.C. § 2401(a). The general statute of limitations for civil suits against the federal government is six years.

19 28 U.S.C. § 1657.

20 Vaughn v. Rosen (II), 523 F.2d 1136 (D.C. Cir. 1975).