The United States Court of Appeals for the Fifth Circuit has allowed Sierra Club to intervene in a reverse Freedom of Information Act (FOIA) records request lawsuit.

The dispute stemmed from FOIA requests made to the Environmental Protection Agency (EPA) in which Sierra Club requested documents relating to power plants operated by Entergy Gulf States Louisiana, LLC and Entergy Arkansas, Inc. (Entergy). Entergy supplied documents to EPA, but designated many of them “confidential business information,” which would render them non-disclosable by EPA.

EPA did not agree with Entergy, and prepared to release 3,685 pages of documents to Sierra Club, holding back approximately 18,000 pages because they contained third-party information that could be confidential. Entergy sued EPA to block disclosure of the documents in what is known as a “reverse FOIA” suit. A reverse FOIA suit is one in which “a plaintiff seeks to prevent a governmental agency from releasing information to a third party in response to the third party’s request for information under FOIA.”

During the litigation, EPA agreed to not release any documents until the issue of the 18,000 documents was resolved, which could take 12 to 18 months. Additionally, EPA indicated they would allow Entergy to “assist” them in determining which documents were disclosable. Sierra Club was not OK with this, and moved to intervene in the lawsuit.

The district court denied this request, finding that EPA was properly representing Sierra Club’s interests in the litigation. After thorough analysis of the law of intervention, the Fifth Circuit disagreed and reversed.

The court found that Sierra Club and EPA had adversity of interest because EPA was willing to sit on the requested documents for years. The court also found that Entergy’s “assistance” to EPA in identifying non-disclosable documents diverged from Sierra Club’s interest in actually obtaining the documents. As such, without determining the merits of any dispute over the lengthy disclosure time frame or Entergy’s interference, the court allowed Sierra Club to intervene as a party in the case.

The reverse FOIA suit is a roguish move used by corporations to prevent the legal disclosure of their dirty laundry. This case is a good example of the lengths to which a company may go to prevent this, as well as how an aggrieved FOIA requester may seek to force disclosure of documents.

Case:  Entergy Gulf States Louisiana, LLC, et al., v. United States Environmental Protection Agency, United States Court of Appeals for the Fifth Circuit, Case No. 15-30397 (March 17, 2016).

Originally published in Prison Legal News on December 11, 2017.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).