WASHINGTON, D.C. – In a significant victory for open government advocates, the U.S. Court of Appeals for the Second Circuit ruled today that people can sue to enforce the Freedom of Information Act (FOIA) requirement that federal agencies post certain documents online so that they are accessible to the public. The decision was issued in New York Legal Assistance Group (NYLAG) v. Board of Immigration Appeals, in which Public Citizen Litigation Group served as lead counsel along with NYLAG as co-counsel.
“Today’s Second Circuit decision handed a critically important victory not only to NYLAG, our co-counsel Public Citizen, and other immigration advocates, but also to all members of the public who seek government transparency and accountability,” said Beth Goldman, NYLAG president and attorney-in-charge. “For too long, the Board of Immigration Appeals (BIA) has shrouded its orders in secrecy, leaving immigrants at a disadvantage in proceedings that are already stacked against them. Today the Court of Appeals confirmed that the Freedom of Information Act does give courts the power to shine light on this body of ‘secret law,’ and keep agencies like the BIA accountable to immigrants, their lawyers, and the public. This litigation is not over, but we are optimistic that we will achieve our goal of BIA transparency. We are especially grateful to our dedicated co-counsel at Public Citizen—this victory could not have been achieved without their partnership.”
“The court’s ruling today is an important step toward greater government openness,” said Public Citizen attorney Scott Nelson, who argued the case. “The decision will help ensure that FOIA’s requirement that agencies make important documents publicly available online is not a toothless tiger that agencies are free to ignore.”
The court of appeals held that FOIA’s “electronic reading room” provisions, which mandate on-line posting of a wide range of documents that Congress wanted to make readily accessible to members of the public, can be enforced in court.
The case arose when NYLAG, which provides free legal services to immigrants in New York, requested that the Board of Immigration Appeals (BIA) post all of its opinions in immigration cases in its electronic reading room. Since 1996, FOIA has required agencies to provide public, online access to all opinions and orders they issue in cases they decide, but the BIA posts only a tiny fraction of the thousands of opinions it decides each year. The inability to access all the BIA’s opinions hinders NYLAG’s efforts to provide legal assistance to immigrants.
The BIA denied NYLAG’s request and claimed that NYLAG could not use FOIA to force it to comply with the requirement that it post its decisions online. Represented by Public Citizen Litigation Group and its own staff attorneys, NYLAG sued.
After a federal district court in New York agreed with the BIA’s view and dismissed NYLAG’s case, NYLAG appealed. In today’s opinion, the court of appeals reversed the district court and reinstated NYLAG’s case.
As the court stated in its decision, “[t]he text of FOIA’s remedial provision and the 1974 amendment to it, considered in light of FOIA’s history and purpose, make clear that Congress gave courts the authority to enforce an agency’s obligation to make certain documents publicly available.” Rejecting the government’s argument that FOIA’s proactive disclosure provisions are not enforceable, the court found that FOIA’s text, structure and purpose require the conclusion “that Congress intended to give district courts the authority to order agencies to make documents available for public inspection when they fail to comply with their affirmative obligations,” to do so.
The opinion is available here.
Founded in 1990, New York Legal Assistance Group (NYLAG) is a leading civil legal services organization combatting economic, racial, and social injustice by advocating for people experiencing poverty or in crisis. Our services include comprehensive, free civil legal services, financial empowerment, impact litigation, policy advocacy, and community partnerships. NYLAG exists because wealth should not determine who has access to justice. We aim to disrupt systemic racism by serving individuals and families whose legal and financial crises are often rooted in racial inequality. NYLAG goes to where the need is, providing services in more than 150 community sites (e.g. courts, hospitals, libraries) and on our Mobile Legal Help Center. During COVID-19, most of our services are virtual to keep our community safe. NYLAG’s staff of 300 impacted the lives of nearly 90,000 people last year.