Accounting for Nonprofit FOIA Litigators 

Allan Blutstein 

In an essay for AFPF’s Sunshine Week symposium last year, Rutgers University law professor Bernard Bell defended public interest groups against criticisms concerning the quantity and nature of their FOIA requests and their proclivity to litigate.¹  In doing so, Professor Bell indirectly referenced a study by the FOIA Project that identified the most active nonprofit FOIA litigators from 2001 to 2018.²  As a former nonprofit FOIA litigator (albeit briefly), I could not resist picking up where the FOIA Project left off.³   

To set the stage, FOIA requesters of all types filed approximately 3,777 lawsuits against federal agencies from 2019 to 2023.⁴  As Table 1 indicates below, the ten most active nonprofit FOIA litigators in the same time period filed 724, or 19.1 percent, of those lawsuits.  Notably, a half-dozen of these nonprofits also appeared in top-ten list from 2001 to July 2018, namely, Judicial Watch, Inc. (previously first); American Civil Liberties Union (previously second); Public Employees for Environmental Responsibility (previously third); Citizens for Responsibility and Ethics in Washington (previously fourth); Center for Biological Diversity (previously seventh); and American Oversight (previously tied for ninth).⁵   

The four nonprofits that fell out of the top-ten from 2001 to 2018 were Electronic Privacy Information Center; Natural Resources Defense Council; Cause of Action Institute; and Electronic Frontier Foundation.  Newcomers to the list include America First Legal Foundation, Energy Policy Advocates, Heritage Foundation, and Democracy Forward Foundation. 

Table 1.  Most Active Nonprofits Filing FOIA Suits: 2019-2023 

Rank	Plaintiff in FOIA Suit	Number Filed
1	Judicial Watch, Inc.	217
2	American Oversight	122
3	Citizens for Responsibility and Ethics in Washington	57
4	Center for Biological Diversity	50
4	Public Employees for Environmental Responsibility	50
6	American Civil Liberties Union	45
7	America First Legal Foundation	41
8	Energy Policy Advocates	41
9	Heritage Foundation	39
10	Democracy Forward Foundation	37

Below is a separate top-ten list for the years of the Biden Administration through 2023.  All but two of the top-ten organizations there also qualified for the overall top-ten list for the past five years:  American Wild Horse Campaign and Informed Consent Action Network.  Conversely, only two organizations from the overall top-ten for the past five years failed to make the top ten during the Biden Administration: Center for Biological Diversity and Democracy Forward Foundation.⁶ 

Table 2.  Most Active Nonprofits Filing FOIA Suits: Biden Administration, 2021-2023 

Rank	Plaintiff in FOIA Suit	Number Filed
1	Judicial Watch, Inc.	146
2	America First Legal Foundation	41
3	Heritage Foundation	39
4	Energy Policy Advocates	38
5	Citizens for Responsibility and Ethics in Washington	33
6	American Wild Horse Campaign	29
7	Informed Consent Action Network	28
7	Public Employees for Environmental Responsibility	28
9	American Civil Liberties Union	26
10	American Oversight	25
10	Institute for Energy Research	25

Lastly, Table 3 below captures the top-ten nonprofit litigators during the final two full years of the Trump Administration.  All but two of these organizations, Cato Institute and Citizens United, appeared on the top ten list compiled by the FOIA Project for the Trump presidency through July 2018.⁷  And only three of these top-ten filers did not make the overall top-ten for the 2019 to 2023 period: Cato Institute, Citizens United, and Natural Resources Defense Council.   

Table 3.  Most Active Nonprofits Filing FOIA Suits: Trump Administration, 2019-2020 

Rank	Plaintiff in FOIA Suit	Number Filed
1	American Oversight	97
2	Judicial Watch, Inc.	71
3	Center for Biological Diversity	33
4	Democracy Forward Foundation	32
5	American Civil Liberties Union	29
6	Citizens for Responsibility and Ethics in Washington	24
7	Public Employees for Environmental Responsibility	22
8	Cato Institute	17
9	Citizens United	15
10	Natural Resources Defense Council	11

The above findings indicate that a stable number of nonprofit organizations continue to be the most active FOIA litigators, which is consistent with the FOIA Project’s longer-term study.  The Democratic Party’s takeover of the White House and Congress in 2021 unsurprisingly led to the emergence of several new active filers on the opposite side of the political spectrum,⁸ not unlike what occurred after Republicans attained unified control of the government in 2017.⁹       

Allan Blutstein is a public records lawyer and the founder of FOIA Advisor, a non-commercial website that provides daily FOIA news, summaries of court decisions, reference material, and a question-and-answer forum.  He previously served as a staff attorney with the Department of Justice’s Office of Information and Privacy, and as the principal legal counsel for the FOIA staff of the U.S. Department of the Treasury’s Office of Financial Stability.  Mr. Blutstein joined the requester community in 2013 at Cause of Action Institute, a nonprofit oversight group, and subsequently became the Director of FOIA Operations for America Rising Corp., a pro-Republican research firm.