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ADMINSTRATIVE CONFERENCE OF THE UNITED ST TES
Administrative Conference Recommendation 2014-1
Resolving FOIA Disputes Through Targeted ADR Strategies
Adopted June 5, 2014
The Freedom of Information Act (FOIA)1 makes available to any person, upon request,
any reasonably described agency record that is not exempt under nine specified categories.
Congress has stated: disclosure, not secrecy, is the dominant objective of the Act.2 FOIA
provides a two-level agency process for decisions on requests for access to agency records: (1)
an initial determination that is ordinarily made by the component of the agency with primary
responsibility for the subject matter of the request; and (2) an appeal to an authority under the
head of the agency in the case of an adverse initial determination. A requester's formal
recourse following an adverse determination on appeal (or the agency's failure to meet the
statutory time limits for making a determination) is a suit in federal district court to challenge
the agency action or inaction. Attaining the highest level of compliance at the agency level,
without the need for resort to litigation, has long been recognized as a critical FOIA policy
objective. A series of amendments to the Act over the years has provided for more detailed
monitoring of agency compliance and established agency mechanisms to promote compliance.
Despite these efforts, several hundred agency FOIA determinations adverse to requesters are
challenged annually in federal courts, and it is widely assumed that a substantial number of
1 5 U.S.C. § 552, as amended.
2 Openness Promotes Effectiveness in our National [OPEN] Government Act of 2007, Pub. L. No. 110-175, 121 Stat.
2524 (codified at 5 U.S.C. § 552), § 2(4). See also Presidential Memorandum of January 21, 2009, Freedom of
Information Act, which stated, The [FOIA] should be administered with a clear presumption: In the face of doubt,
openness prevails. 74 Fed. Reg. 4683 (Jan. 26, 2009).
The year 2012 saw the highest number of FOIA requests in the history of the law: a striking 650,000 requests
were filed with agencies throughout the Executive Branch by individuals and organizations seeking government
information. Data from the Administrative Office of the United States Courts indicate that the number of FOIA
cases has varied within a range of 280 to 388 over fiscal years 2007 through 2013. Annual agency FOIA litigation
costs hover around $23 million-a conservative estimate by some accounts.
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