WASHINGTON (CN) — Tired and frustrated, federal judges are strategically ordering government agencies to pick up the pace in responding to Freedom of Information Act requests to pressure Congress into allocating more funding to offices tasked with releasing records to the public.
The frustration Moss admitted — during a status conference to discuss a FOIA request for documents on Supreme Court Justice Brett Kavanaugh in a lawsuit filed by Senate Democrats during his confirmation process — was similarly shared last week by U.S. District Judge Reggie Walton.
“It shouldn’t fall on the backs of the citizens to wait years to find out what the government is up to,” Walton said during a hearing in another FOIA case.
Currently overseeing requests from CNN and BuzzFeed for the production of extensive records from former special counsel Robert Mueller’s investigation, Walton said he and colleagues on the bench in D.C. federal court are “overworked” by the litany of FOIA lawsuits filed against the Trump administration.
Walton further questioned why an administration that promised to disrupt Washington was not better prepared for the lawsuits that have followed since President Donald Trump took office.
The FBI alone is currently reviewing documents for production in response to 45 FOIA requests, while still litigating hundreds of other records-related lawsuits, a Justice Department attorney told the judge last week.
While not convinced that agencies under the executive branch can shirk their responsibility to respond to FOIA requests based on limited congressional funding, Walton ordered the Justice Department to look into whether the Trump administration can request more money from lawmakers to multiply the number of federal employees preparing responses to records requests.
A third judge hinted at the burden of FOIA cases in the D.C. federal court on Tuesday, in a hearing on House Democrats’ application for the release of certain grand jury material from the Mueller investigation.
The Justice Department argued before Chief U.S. District Judge Beryl Howell that staff are doing their very best to respond to requests for FBI records in a timely fashion but are slowed by the process of redacting sensitive information.
“For right now, am I going to have to rely on those aggressive FOIA litigants that keep this court so busy?” Howell asked.
In a court filing last month in the lawsuit over records on Kavanaugh, the Justice Department said the request from Democrats on the Senate Judiciary Committee — including 2020 presidential candidates Cory Booker and Kamala Harris — calls for the production of millions of White House records.
The department estimates the task will take several decades to complete, saying the Office of Legal Counsel “cannot be faulted for plaintiffs having submitted broad requests.”
Justice Department attorney Stephen Pezzi told Judge Moss on Thursday that it would be impossible for the Office of Legal Counsel to accelerate the production rate in the case above the current 250 pages per month.
Representing Senate Democrats, attorney Elizabeth France said the government cannot use lack of manpower as a “perpetual excuse” for failing to respond to FOIA requests in the timely manner required under federal law.
Moss said he understands the federal agencies are short-staffed. But he ordered the government to hasten the pace to 400 pages per month and added, “I am not sure I have ever had another case where it is so low.”
The judge closed the hearing Thursday by saying he hopes that Congress will allocate more funding for agencies to fulfill the “significant obligation” imposed under the federal public-records law.