The last opinion signed by Brett Kavanaugh before his nomination to the Supreme Court dealt a blow to a key provision of the Freedom of Information Action: compensation for successful litigant.
On July 9, Kavanaugh joined a 2-1 majority decision in Morley v. CIA that held that the government did not have to pay my court costs because the CIA had acted reasonably and there was no benefit to the information obtained.
In a powerful dissent, Judge Karen Henderson rebuked Kavanaugh and Judge Gregory Katsas for ignoring precedent and inventing mandate.
The provisions that require the government to pay the court costs of litigants who “substantially prevail” is a key feature of FOIA. This policy incentivizes the Executive Branch to comply with the letter and spirit of the FOIA and it sustains journalists, scholars and whistleblowers who uncover information in the public interest.
Kavanaugh’s decision incentivizes the CIA and other agencies to abuse FOIA and discourages investigative reporting.
Here’s Kavanaugh’s decision with Henderson’s dissent on p. 16.
On August 23, my attorneys, Jim Lesar and Dan Hardway, filed an appeal of the July 9 decision in Morley v. CIA.
Here’s the brief and addendum, as found in PACER.
We are asking news organizations and open government groups to support this appeal with amicus briefs. Amicus briefs are due by August 30. If you or your organization is interested in supporting FOIA, please contact Jim Lesar, or Dan Hardway.