Appeal filed on Brett Kavanaugh’s anti-FOIA decision

kavanaugh trump

Brett Kavanaugh announced.

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.

Judge Karen Henderson

Judge Karen Henderson dissents.

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.




  1. […] the Freedom of Information Act, the government is not liable to pay their legal costs. This “incentivizes the CIA and other agencies to abuse FOIA and discourages investigative reporting,” because whereas the government has virtually unlimited resources to fight, stall, and stonewall in […]

  2. Jeff says:

    When will you receive a response to your August 23rd appeal? Also, were any amicus briefs filed?

    • jeffmorley says:

      The wheels of Justice turn slowly. The CIA asked for an extension in filing their brief. That is now due early next month. Then the court will decide and hopefully schedule oral arguments.

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