A copy of the amicus brief can be found here>>.
The Supreme Court granted certiorari in Taylor v. Sturgell (No. 07-371) to review the D.C. Circuit’s decision denying a FOIA requester access to documents on the grounds of issue preclusion. The D.C. Circuit affirmed dismissal of Taylor’s FOIA case on res judicata grounds because a prior FOIA requester was a "close associate" of Taylor's, and had been his "virtual representative" in a prior FOIA case that was brought unsuccessfully seeking the same documents. The principal reason the D.C. Circuit held that the second FOIA case was barred by res judicata was that both FOIA requesters were represented by the same attorney in both cases.
Amici argue that “virtual representation applied in a FOIA matter raises serious concerns. FOIA requests are filed by many different people for many different reasons... No one lawsuit will achieve FOIA's public purpose (or, indeed, another requester's individual interest); the statute is designed to fulfill the public part of its purpose through many individuals each reminding federal agencies that they cannot operate in secret."
If res judicata is broadly applied to FOIA cases, then citizens will be denied access to records when there are multiple FOIA requesters making requests for information on the same subject matter. Advocacy groups, journalists, researchers, scientists or historians may all have an interest in seeking records on the same subject matter, but that does not mean that each requester’s interest is the same. Because many different reasons may apply to the denial of FOIA requests from different requesters at different times, one FOIA requester should not be automatically barred by the denial of requests made by another.