Washington College of Law
Home Archive Volume 61 Volume 61, Issue 2 The Freedom of Information Act Trial
The Freedom of Information Act Trial

By Margaret B. Kwoka | 61 Am. U. L. Rev. 217 (2011)

This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts’ preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally.

It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1% of FOIA cases. It further examines how conducting FOIA trials in appropriate cases might increase the frequency of protransparency case outcomes as intended under the Act, using both empirical analysis and qualitative conclusions from interviews with attorneys who have litigated FOIA trials.

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