Case Report – US Supreme Court revives FOI request precluded as res judicata

On June 12th, the Supreme Court of the United States unanimously held that an FOI claim filed by an acquaintance of a person who was unsuccessful in previously filing the same claim should not be barred.

The first requester asked the Federal Aviation Administration for technical documents related to a model of vintage airplane he owned and was seeking to restore. The FAA denied the request based on the FOIA’s third-party trade secrets exemption. The first requester eventually filed a lawsuit that was heard by the Tenth Circuit Court of Appeals. The Tenth Circuit upheld the lower court’s finding that the third-party restored its right to protect the records (despite an earlier waiver) by objecting after the FOI request had been filed. It did, however, significantly qualify its decision by noting that the first requester had not challenged whether it was possible to “restore” trade-secret status once waived and, if so, whether the timing of the third-party’s objection enabled such restoration.

The second requester then filed the same request and eventually filed suit, but was barred in the first instance and on appeal based on a finding that he was “virtually represented” by the first requester. The virtual representation doctrine expands the traditional exceptions (in American federal law) to the rule that one must be a party to be barred by a prior judgement. It had not previously been considered by the Supreme Court.

The Supreme Court rejected the virtual representation doctrine but remanded the matter for a determination as to whether the second requester filed suit as the first requester’s agent. This may have seemed a possibility to the Court because the first requester had a greater interest in the records (he owned the aircraft, the second requester did not) and had asked the second requester to help him restore the aircraft and because both requesters used the same legal counsel. There was no determination of the question of agency on the record, however, so the Court let the agency issue live with a note that “courts should be cautious about finding preclusion on this basis.”

The Supreme Court’s decision does not turn on the specific nature of a public right of access, though it did reject an argument that the second requester had a reduced interest in controlling the first reqeuster’s litigation because a duty to disclose is “owed the public generally.” It said, that notwithstanding the general public interest in access to government records, a grant of relief under the FOIA is personal.

Taylor v. Sturgell, 553 U.S. 2008.

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