The IRS has come up short in its effort to defend its withholdings of approximately 23,000 documents. In a decision dated August 21, 2006, in Mayer, Brown, Rowe & Maw LLP v. Internal Revenue Service, Civil No. 04-2187, Judge Rosemary M. Collyer of the District Court for the District of Columbia ordered the IRS to go back and prepare better declarations justifying its withholding decisions. The Court stated that it could not determine if applicable exemptions applied to the withheld documents "because the descriptions are extremely broad and generic, the agency identified only 'representative samples,' and the Court does not have the Bates-stamped documents with or without the redactions." slip op. at 13. Thus, the Court Ordered new declarations for material withheld pursuant to Exemption 5 and an in camera submission of a representative sample of information withheld pursuant to Exemption 7E.
This is an example of poor representation of the government in a FOIA case, regardless of whether or not the processing of the FOIA request was correct. When I was at the FBI, my main job responsibility was the preparation and review of declarations justifying agency actions in FOIA matters. It is not an easy job, as each Court may want something different and each Justice Department attorney representing the government may have their own idea about how the declaration should look and what they want to file (and sometimes they were wrong). I once had an argument with an AUSA about the tact we should take on the declaration. She won the argument (because she was the one representing the government before the Court) event though I told her that her approach was unworkable. A few years later, after I had left the FBI, and the declarations had been filed, I was proven correct as the Court poked holes through the FBI declarations mainly because of the way they were presented, not because of the underlying FOIA processing.
Therein lies my point. Sometimes winning a FOIA case is made much harder because the parties defending the government don't do their homework before filing declarations and motions. It is very important to know what will adequately tell the story of the agencies processing of the FOIA request in a way that will allow the court to approve the agency action. On the flip side, requesters should not idly accept the papers filed by the government as sufficient. Requesters should be prepared to argue that the declarations filed by the government are not adequate for a grant of summary judgment because the longer a case stays open the better chance that they will receive more of the information they requested in the first place.