United States: Getting The Facts Straight: FOIA Or Subpoena?

Facts are integral to litigation. Cases rise and fall on their facts. Some of the biggest hold­ers of factual information are government bodies throughout the United States — particu­larly the federal government. Sometimes, a liti­gant needs access to facts in the government's possession, even when the government is not a party to the action. This article explores two different ways to procure information from the federal government when it is not a party to a case: the Freedom of Information Act ("FOIA") and Rule 45 subpoenas.


FOIA is "a broad disclosure statute which evidences a strong public policy in favor of public access to information in the possession of federal agencies." News-Press v. U.S. Dep't of Homeland Sec., 489 F.3d 1173, 1190 (11th Cir. 2007). It requires each federal agency to auto­matically make available to the public certain information set forth in the statutory text. See 5 U.S.C. § 552(a)(1)-(2). In addition, each agen­cy, upon a request that reasonably describes the records pursuant to published procedural rules, "shall promptly" make available perti­nent records to "any person." Id. at § 552(a)(3). Significantly, FOIA does not require a request­er to provide any reason for the request.

However, FOIA exempts from disclosure nine categories of records. 5 U.S.C. § 552(b). There are also exemptions based in the statute but derived from case law. Perhaps the best-known example is the Glomar response, by which an agency neither confirms nor denies the existence of certain records or information. See, e.g., Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009)

Discovery Subpoenas

Non-party discovery subpoenas issued pur­suant to Federal Rule of Civil Procedure 45 are another, often more effective means of eliciting a response from a federal agency in furtherance of litigation. As an initial matter, for a subpoena on a federal agency to be effective, the subpoe­na must be sent from a party to a litigation that originated and remains in federal court; other­wise, the federal government has not waived its sovereign immunity. See, e.g., Beckett v. Serpas, No. 12-cv-1910, 2013 U.S. Dist. LEXIS 28848 (E.D. La. Mar. 4, 2013) (collecting cases). But when a subpoena is properly served, the federal govern­ment waives its immunity pursuant to the Ad­ministrative Procedures Act, 5 U.S.C. § 702.

Just because the government may be ame­nable to a Rule 45 subpoena, however, does not settle the matter. Where it has been con­sidered, the federal appeals courts are split on the proper standard of review of a subpoena served on the federal government. The Fourth and Eleventh Circuits review an agency's deci­sion under the Administrative Procedure Act's arbitrary and capricious standard, see COM­SAT Corp. v. NSF, 190 F.3d 269 (4th Cir. 1999); Moore v. Armour Pharm. Co., 927 F.2d 1194 (11th Cir. 1991), whereas the Ninth and District of Columbia Circuits utilize Rule 45's balancing of the interests favoring disclosure against those asserted against disclosure. See Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994); Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C. Cir. 2001). The Second Circuit initially adopted the APA standard, but later rescinded it and reserved the question for the future. See United States EPA v G.E., 212 F.3d 689 (2d Cir. 2000), amending 197 F.3d 592 (2d Cir. 1999). The Second Circuit also later determined that a par­ty seeking to compel the government's compli­ance with a subpoena must first exhaust its administrative remedies. See Semon v. Stewart, 374 F.3d 184 (2d Cir. 2004). Other circuit courts have not rendered a decision, and courts with­in those circuit courts have not been uniform in their holdings. The authors of this article are of the opinion that the Rule 45 standard of review, which favors the requester, is preferable to the APA standard, which provides greater defer­ence to the agency.

Which Method is Better?

It is difficult to say whether FOIA or Rule 45 subpoena method is a better means of ob­taining information from the government. The answer to that question truly depends on why a litigant needs the information.

FOIA has certain advantages. It is likely less expensive than most lawsuits, even if a party must resolve a dispute with the government over the request. The requester has more free­dom to seek a broad scope of information that does not have to relate to litigation. And, an FOIA request may be made at any time, so it is not bound to the timeframe of a specific liti­gation. Using FOIA prior to litigation may help shape litigation strategy, including whether to pursue a case, legal theories, and which facts require further discovery. FOIA may also be useful as a follow-up to a Rule 45 subpoena.

However, FOIA also has disadvantages. Despite the statute's requirement of "prompt" agency responses, FOIA responses are fre­quently slow. See, e.g., Nikita Lalwani & Sam Winter-Levy, "Freedom of Information Act is slow and creaky as it turns 50," The Buf­falo News, (July 17, 2016), http://buffalonews. com/2016/07/17/freedom-of-information-act-is-slow-and-creaky-as-it-turns-50/. Thus, FOIA requests are not always particularly well-suited for use in the midst of or prior to litigation, where time is of the essence and the clock is running on statutes of limitation. Fur­ther, an agency's refusal to release some or all of a set of records often results in a lawsuit for the purpose of seeking a release under FOIA.

Rule 45 subpoenas also have advantages and disadvantages. Although there may be fewer arguable grounds for exclusion of information as compared to FOIA, a subpoena is subject to the proportionality and relevance requirements of Rule 26. It cannot be used prior to a lawsuit, and follow-up may be limited due to a court's concern for its docket. Further, subpoenas tend to draw more attention to a search for facts, which may not be a party's desire at the time it seeks that information — particularly because an adversary knows what a party is doing. Fi­nally, while not a clear positive or negative, the venue where litigation occurs may affect the disposition of the subpoena because there is no uniform standard of review.

Which method to use? The answer is gener­ally (pardon the expression) fact-specific. It's vital to know the pros and cons of each meth­od and judge accordingly.

About Anderson Kill

Anderson Kill practices law in the areas of Insurance Recovery, Commercial Litigation, Environmental Law, Estates, Trusts and Tax Services, Corporate and Securities, Antitrust, Banking and Lending, Bankruptcy and Restructuring, Real Estate and Construction, Foreign Investment Recovery, Public Law, Government Affairs, Employment and Labor Law, Captive Insurance, Intellectual Property, Corporate Tax, Hospitality, and Health Reform. Recognized nationwide by Chambers USA for Client Service and Commercial Awareness, and best-known for its work in insurance recovery, the firm represents policyholders only in insurance coverage disputes - with no ties to insurance companies and has no conflicts of interest. Clients include Fortune 1000 companies, small and medium-sized businesses, governmental entities, and nonprofits as well as personal estates. Based in New York City, the firm also has offices in Philadelphia, PA, Stamford, CT, Washington, DC, Newark, NJ and Los Angeles, CA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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