This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts' preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally. It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1 % of FOIA cases. It further examines how conducting FOIA trials in appropriate cases might increase the frequency of pro-transparency case outcomes as intended under the Act, using both empirical analysis and qualitative conclusions from interviews with attorneys who have litigated FOIA trials.
Margaret B. Kwoka, The Freedom of Information Act Trial, 61 Am. U. L. Rev. 217 (2011).