Creating a Freedom of Information court

By Ryan Mulvey and James Valvo, Americans for Prosperity Foundation, Mar. 14, 2022

One idea — which has rarely, if ever, been suggested — is the creation of a new federal court dedicated solely to hearing and deciding FOIA cases.

It goes without saying that FOIA’s judicial review provision needs some refurbishing. The volume of FOIA litigation nationwide has outpaced the ability of federal courts to deal with those cases in a timely manner. And most FOIA litigators and DOJ attorneys would agree that, quite apart from the increased volume of lawsuits, FOIA cases are often given the least attention of any on a district judge’s docket. To be sure, there are always exceptions; but few judges appear to enjoy, let alone dedicate much of their time and attention, to FOIA questions. This can have particularly significant consequences when courts decide novel questions about, say, the definition of a “record” or the complicated interaction of FOIA with other statutes.

A new Article III tribunal specializing in FOIA could have concurrent jurisdiction with the other federal courts already identified in the FOIA’s venue provision, thus allowing requesters a wider variety of potential fora in which to bring suit. The statute could direct that all appeals be heard by the D.C. Circuit. It may also be worth considering expanding the subject-matter jurisdiction of such a court to allow it to hear cases arising under other transparency statutes, such as the Privacy Act, Federal Records Act, and Presidential Records Act.

Read more here.