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Our Stance: Litigation Exemption in FOIA bill


It is being claimed that the lawsuit exemption being proposed to the FOIA is “narrow.” That is not true.

While the bill says the exemption is only for pending litigation or litigation which “is anticipated in light of a plausible threat that has been documented in writing,” the provision on anticipated litigation is no limitation at all. What is a “plausible threat”?

“Plausible” is so broad it could be almost any situation imagined by the custodian of records. But, the threat has to be “documented.” Doesn’t that help limit the exemption? NO. To have documentation, all the custodian has to do is write down his or her reason, no matter how poor the reason, and that is documentation. The legislation includes text that is supposed to serve as a limitation, but the words are really no limitation at all.


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