Tag Archives: plans

Sizing Up A Successful FOIA Litigation

Bill Moyers drafted this paragraph for President Johnson’s FOIA signing statement in 1966. LBJ rejected it, but it’s a good reminder of what FOIA is really all about, or should be about.

My Boundary Waters Freedom of Information Act case, Galdieri v. Department of  the Interior, is about to wrap up, with a Stipulation of Dismissal to be filed shortly.*

In my first outing as a pro-se FOIA plaintiff, I obtained over 6,500 pages of previously unreleased records. Some of these records made their way into congressional hearings, news stories public commentopinion pieces, and a webinar. Maybe they contributed to the public understanding of decisions the previous administration made; maybe they even helped change some minds. I’ll probably never know. Instead, I’m trying to sort through what I learned in the process and how these lessons might apply to my work in the future.

While there’s no formal judgment I can tout, a Settlement Agreement covers my litigation costs (a $400 filing fee), and I’m happy to take that as tacit admission that I “substantially prevailed,” in terms of the Freedom of Information Act. The statute says “a complainant has substantially prevailed” — and is therefore entitled to litigation costs and attorney fees — “if the complainant has obtained relief… through a voluntary or unilateral change in position by the agency.” That’s essentially what happened here, when the Department of the Interior agreed to review over 25,000 pages of records it had held back.

I might have pressed for even more than the filing fee, but I am not sure how strong my case would have been. In Cuneo v. Rumsfeld, the DC Circuit Court of Appeals offered this reasoning:

In enacting [The Freedom of Information Act,] Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service. Under current federal attorney fee statutes when the social service rendered by the prevailing party is substantial, the courts have been willing to dispense with formal and rigid attorney and client requirements. … A successful FOIA litigant is entitled to similar consideration.

The question how I might value the time spent on this project doesn’t really come down to dollars and cents anyway. There’s another register of value in the language the court uses in Cuneo regarding “the public interest” and in the language about “good government” Bill Moyers uses in his draft of LBJ’s FOIA signing statement. These texts help hitch my efforts to a serious purpose, and I reach for them with that in mind.

I hope that doesn’t sound self-aggrandizing. This three-year-long episode started with an idea for a film, an investigative documentary that would travel from New York to Minnesota, Washington DC, and Santiago, Chile. That was ambitious. Instead, I ended up on a paper chase and locked down in Brooklyn during a pandemic. That was frustrating and humbling.

Along with what I learned during that period about the putative subject of my investigation, I am reminded (once again!) that there’s always meaningful work to be done after things fall apart or plans go awry.  A small consolation for mice and men.

*Update, 19 May 2022: A stipulation of dismissal was filed this morning and the judge ordered the case dismissed.

Neither Here Nor There

I set out for Lake Superior on Saturday, with the intention of spending the better part of this week meeting and interviewing people for a documentary project I’m developing. The day got off to a rocky start: at 4:30AM, United Airlines called and emailed to tell me that my 8AM flight to Chicago would be delayed. I would miss my connection to Hancock unless I hustled and got myself to Chicago on an earlier flight – the 7AM — which I did. I arrived with plenty of time to spare, and was at Gate F1A and ready to board the Hancock flight when my phone buzzed. Flights to Hancock were cancelled, due to a blizzard in the Keweenaw — lake effect snow.

The woman at the customer service counter had clearly had a rough morning. Her allergies were making her miserable: all the dust from the heater, she said; she had just turned it on for the first time this winter. She did her best, but when all was said and done my options were limited to waiting out the storm in Chicago (which probably meant the dreary and overpriced airport hotel) or making a dash to Detroit, switching from United to Delta (I never found out exactly how this was to be accomplished, or what it would cost), and trying to catch the evening flight to Marquette. Both sounded expensive, exhausting and damaging to the soul. I told myself that I could probably accomplish everything I’d set out to do on this trip the next time around. So I decided to call it a day, turn around and head back to New York.

The woman behind the counter seemed relieved, and marked my ticket “Carrie Over Carrie Back” [sic]. I moved to a new gate to wait for the next New York flight, and ate an airport sandwich that registered on the receipt as “CEB Tur Goud.” That’s about how it tasted. carrieovercarrie

Now I am here when I expected to be there, here in New York with a strange sense of being absent from the UP. This confusion of presence and absence, here and not there, is not quite the same as missing a place; it’s not like nostalgia and doesn’t involve longing to be elsewhere. It’s more like misplacing myself – a sense of dislocation. I can’t shake the feeling that I shouldn’t be here: none of my planning included that possibility. Plans commit us to a time and place. They tell us where we belong, and when. They are ways of making ourselves belong. I simply don’t belong here, at least not until Thursday, when I’d planned to come back. Until then, I am neither here nor there.

I hit on that familiar expression yesterday. It’s a colloquial way of talking about irrelevance, things that are of no account, and though I have plenty to keep me busy until Thursday, I am also seriously exploring this feeling that I am of no account, and will be for a couple days to come.

The expression neither here nor there is, I now understand, a good place to start reflecting on our plans and purposes and how they give us a sense of belonging in the world. It goes way back, and was popular and well-worn even before Shakespeare used it in Othello. That much is clear from the earliest instance cited by the OED: Arthur Golding’s 1583 translation of The Sermons of J. Calvin on Deuteronomie.

This is Golding’s translation of Calvin’s 92nd sermon, on “the law of the tithe” as it’s presented in Deuteronomy 14.24-29 — a passage which is itself already about being displaced and absent, about being “far” from the place where “God shall choose to set his name” (as the King James version has it). Tithes of money are offerings “if the way be too long for thee…or if the place be too far from thee.” Seeing that God has dealt so generously with us, Calvin writes,

what an unthankfulnesse is it for me to despise him that sheweth himself so liberall towardes me? True it is that our so dooing is neither here nor there (as they say,) in respect of God: the seruice that we do him doth neither amend him nor appaire him: but he giueth vs the poor among vs, to bee succored at our handes, to the ende that none of vs should so glutte himself by cramming his owne bellie, as to despise others that are in necessitie, but that we shoulde bee well advised to make an offering vnto God of the thinges that he hath put into our handes, and that the same might become holy by that meanes. Not that wee should paye it as a ransoume to God; but that the acknowledgement which we make vnto him in having compassion upon our poore needy brethren, is as though our Lord should allow of our eating and drinking, saying thus: Now is all lawful for you, I lyke well of it, I giue it vnto you; and that is because ye honor me in dooing almesdeedes to such as are in pouertie.

It’s a wonderful and complicated passage about making things “holy” and honoring the bounty and plenty of the world by sharing it and making an offering of it – the sort of thing we’d expect to find Lewis Hyde writing about in The Gift. Louis CK, a very different kind of Louis, makes roughly the same point Calvin makes here in a profanity-laced routine called “If God Came Back.” It all starts with the question why Christians don’t seem to believe they have to look after the creation:


This morning, sitting here in New York, and feeling as if I belong elsewhere, it seems downright uncanny that I was thinking about precisely this routine just minutes before my flight to Hancock was cancelled on Saturday. An exhibit called “Ice: Portraits of Vanishing Glaciers” – currently running at Chicago O’Hare in Terminal 2 – brought it to mind. Huge photographs of glaciers by James Balog had been hung on the wall and a sign instructed travelers to “teach your children about landscapes their children will never know.” That sentence alone left me aghast — I had plenty of time to contemplate it, sitting there at the gate — and it made me wonder what purpose could justify the things we do every day, all the running back and forth, the going here and there. We hardly ever give it a second thought.