The Pinocchio Chronicles: How the Courts Bend the Rules in FOIA Cases, Part I

Turn on the Telly or radio. You will hear: Artificial Inteligence (AI) has landed. You can access many quite impressive AI applications for free on your computer and phone. Among the many, Chatgpt, Claude, and Gemini.

I thought it would be fun to ask Chatgpt what it thought about how courts handle FOIA cases. Today and next time listen to Chatgpt explain how the courts bend the rules to favor the government. But first a bit of background.

FOIA is the federal Freedom of Information Act. It says: Ask the government for records (not questions) and the government will “promptly” give them to you. Subject to 9 exceptions in FOIA 5 U.S.C. § 552(b). In the real world, promptly can mean records dawdling 3 months to 3 years. Absent federal agency promptitude, you must file a FOIA case in federal court. A year or two later, the case ends. But not with a real trial. Just on papers the parties pass to the court. Lawyers call this a motion for summary judgment (MSJ). So if you want McClellan-Palomar FAA records, endure the patience of Job. See https://www.gotquestions.org/patience-of-Job.html In contrast, you will likely receive County of San Diego records within a few months.

The court decides on affidavits (declarations) the government gives the court. The affidavits must be detailed. FOIA requesters can grumble about affidavit defects. But here is the rub. FOIA courts accept government FOIA affidavits that would likely be rejected in non-FOIA cases because they are seldom based on personal knowledge and avoid claiming FAA staff expertise. We now enter Alice in Wonderland land.

I asked Chatgpt to “Cite the cases, especially 9th circuit, explaining what expertise an expert in a FOIA case must show to qualify as an expert in record production. And – given the fact that the government seems to say its FOIA affiants (though having searched for and produced records for many years) do not claim their staff are experts, what is going on?” Chatgpt answered as below.

Expert Witness Qualifications in FOIA Cases. Under Federal Rule of Evidence 702, an expert witness must meet four basic requirements: Qualification: The expert must be qualified by "knowledge, skill, experience, training or education" Relevance: The testimony must address subject matter that can assist the factfinder. Reliability: The testimony must be reliable. Fit: The testimony must "fit" the facts of the case.

The Government's Strategic Position

Your observation about government FOIA affidavits is astute and reflects a deliberate litigation strategy. Here's what's likely happening: Strategic Reasons for Not Claiming "Expert" Status:

Avoiding Expert Witness Requirements: If government FOIA personnel were designated as "experts," they would be subject to more rigorous Federal Rule of Civil Procedure 26 requirements, including detailed expert reports and more extensive discovery.

Limiting Cross-Examination Scope: Fact witnesses have more limited cross-examination parameters than experts, who can be questioned extensively about their methodologies, qualifications, and the basis for their opinions.

Avoiding Daubert Challenges: Expert testimony is subject to reliability challenges under Daubert/Rule 702, while fact witness testimony about what they did is generally admissible.

Practical Experience vs. Formal Expertise: The government can argue their staff have practical, job-related knowledge without claiming the formal expertise that would trigger expert witness rules.

What This Means: Government FOIA officers typically testify as fact witnesses about their search procedures and methods, rather than as experts opining on whether searches were adequate. This allows them to describe what they did without having to defend their methods as meeting scientific or technical standards of reliability. The government essentially treats FOIA searches as administrative tasks performed by competent employees rather than specialized technical work requiring expert-level knowledge - even when those employees may have decades of experience in records management and retrieval.

This approach helps the government avoid the more demanding evidentiary standards that apply to expert testimony while still getting their search procedures into evidence through fact witness testimony.