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Thursday, January 10, 2013

7th Circuit Addresses Use of FOIA in Government Litigation


A party in litigation is entitled to obtain the other side’s evidence through what is called “discovery.”  There are a variety of exceptions or privileges that might apply to certain evidence, including attorney-client work product or attorney-client privilege.  Governmental bodies are subject to discovery requests like any other party in litigation.  Governmental bodies are also subject to either a state or federal Freedom of Information Act.  Those statutes require governmental bodies to release public records upon request, subject to a variety of exemptions.  Governments often find themselves in a situation where an opposing party attempts to use FOIA instead of discovery to obtain litigation records.  It is an open question in Illinois whether a litigant can use FOIA as a substitute for discovery to obtain government records in litigation.  The U.S. Court of Appeals for the 7th Circuit recently addressed this issue in Appleton Papers, Inc. v. Environmental Protection Agency and the U.S. Department of Justice. 

In this case, the federal government alleged that Appleton and other companies caused $1,000,000,000 in contamination in the Fox River near Green Bay, Wisconsin.  The government lawyer hired a consultant to prepare reports on the company’s responsibilities for the contamination.  Appleton unsuccessfully sought discovery of the reports, and then filed a FOIA request for the same records, which was also denied based on "attorney work product."  The trial court ruled in favor of the government, and Appleton appealed to the 7th Circuit.

The Court first determined that the requested records were “attorney work product,” finding that, the court “must protect against the disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney.”  The Court rejected Appleton’s argument that because the government allowed certain portions of the material to be included within a consent decree, it waived all parts of the reports.  To adopt the rules suggested by Appleton would discourage governments from settling with some defendants in a lawsuit for fear that by entering into consent decrees, they would have to release all information to future litigants.  It would also disadvantage governments in settling cases because it would require the disclosure of information that would otherwise be confidential. 

Although the case deals specifically with the federal FOIA and not any particular state statute, it is of interest to local governments for two reasons.  First, the ruling stands for the proposition that if a sensible argument asserting “attorney/client privilege” can be made, a court will uphold it.  In some cases, an entire document will be protected under the work product rule, avoiding the need for governments to separate out “opinion” material from “purely factual” material within a particular document.  Second, the Court specifically stated that a FOIA request “is not a substitute for discovery.” Federal decisions interpreting the federal FOIA have been used in the past to interpret similar provisions in state FOIA laws where no state case provides guidance.  This issue continues to plague local governments in Illinois, where litigants routinely use FOIA to circumvent otherwise applicable discovery rules. 

Post Authored by Stewart Diamond and Julie Tappendorf, Ancel Glink

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