Supreme Court Amicus Brief Filed in support of FOIA Requesters

Posted on February 27, 2008 by David Colapinto

The National Whistleblower Center has joined an amicus curiae brief submitted to the Supreme Court to support the rights of FOIA requesters.  The amicus brief was filed by the National Security Archive, OpenTheGovernment.org, the Reporters Committee for Freedom of the Press, the National Whistleblower Center, and the Electronic Frontier Foundation. 

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.

Related Documents:

The SCOTUS Blog has more on the case on this page


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New FOIA Law Contains Long Overdue Improvements

Posted on January 4, 2008 by David Colapinto


President Bush has signed into law the first legislation in more than a decade to strengthen the Freedom of Information Act. The Open Government Act of 2007, signed by Bush on New Years eve, contains several important changes and improvements to the Freedom of Information Act.


The new law establishes enforceable deadlines for agencies to process FOIA requests; extends FOIA's reach to certain records maintained by government contractors; establishes an ombudsman to resolve disputes; creates a FOIA tracking system; restores provisions for recovery of attorneys fees by FOIA litigants who successfully prevail in court, including cases where there is a voluntary or unilateral change in the government's position after filing of the lawsuit, so long as the FOIA requester's claim is not insubstantial; and requires that any award of attorneys fees be paid out of an agency's budget and not the Treasury Department's judgment fund.


Legislative improvements to FOIA were long overdue and the Open Government Act of 2007 is intended to speed up citizen access to government information. The Freedom of Information Act is an essential tool to assist whistleblowers, journalists, citizens and watchdog groups discover what their government is up to and provide outside oversight of government activities.


A copy of the Open Government Act of 2007 is linked here

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Bullet-Lead and The Forensic Justice Project

Posted on November 18, 2007 by NWLDEF

The entry below is a special contribution from Dr. Frederic Whitehurst, the Executive Director of the Forensic Justice Project (a special project of the National Whistleblower Center)

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The justice system needs answers, and science never comes up with final answers. Science often discovers that previous answers to questions were not valid. When forensic science renders opinions in courts of law that are in the future found to be no longer valid, such as in the case of bullet-lead analysis, then we have no mechanisms to revisit the cases where people were unfairly accused. The FBI and the DOJ have for the past nine years strongly resisted efforts by the Forensic Justice Project to determine the names of those defendants who were treated unfairly as a result of bad forensic science.


One would assume that the reason for this lack of cooperation would be the perceived liability from discovery of falsely accused individuals who have spent years, possibly decades, incarcerated after being falsely accused by forensic science. Whatever the reason, Special Agents of the Federal Bureau of Investigation take an oath of office before receipt of their badges and credentials. That oath includes their willingness to enforce the law and uphold the US Constitution. That oath means that citizens become more important to FBI Agents than those agents are to themselves. It would seem that the US Department of Justice would agressively seek to protect the safety of all citizens, regardless of the source of any harm coming to those citizens. And therefore when the FBI Crime Laboratory makes mistakes and those mistakes harm US citizens, the FBI and the US DOJ should aggressively pursue making those citizens aware that they have been tried unfairly and offer any assistance necessary to make those citizens whole. The last thing the US DOJ should do is what has been done, to aggressively stop parties from discovery of those citizens harmed. It is obvious that the US DOJ does not have the assets or moral fiber needed to function fairly in this way. Therefore private citizen groups need to acquire the information from investigative files and make that information available and assist individuals who have been harmed by bad forensic science from the FBI Lab or any other crime lab.


Following revelations in 1997 of wrong doing and invalid science at the FBI Crime Lab, the Forensic Justice Project set about determining those individuals who had been harmed. With the mantra, "Stop It, Fix It, and Find Out Who Was Harmed" the Forensic Justice Project acquired a vast amount of information to determine the real reasons for the perceived problems. FJP makes that information available to parties all over the world, looking only for feedback of information from the recipients. The model built has been one of acquiring transcripts, data, lab reports and other information in order to determine the real issues associated with "bad" forensic science. Going beyond the simple "He said, She said" arguments that get nowhere, FJP has acquired the underlying data for open review. The team built around any issue involves criminal defense attorneys (who provide transcripts of testimony and laboratory work product), aggressive Freedom of Information inquiries, scientists who have been willing to provide a great deal of research resulting in papers written in the scientific literature, and victim defendants who are more than willing to share all of their data.


The project works on a shoe-string budget with individual participants conducting their individual parts on a pro-bono basis.


Dr. Frederic Whitehurst
Executive Director
Forensic Justice Project

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