Kalbers v. U.S. Department of Justice

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Nov. 6, 2024

Background: In 2018, professor Lawrence Kalbers filed a Freedom of Information Act request seeking access to records from the U.S. Department of Justice concerning its high-profile prosecution of Volkswagen for cheating on diesel emissions tests. For example, he sought records that Volkswagen counsel turned over to the DOJ in connection with the investigation.  

Kalbers later sued after the department denied his request for those records. After nearly three years of litigation, the U.S. District Court for the Central District of California ordered the Justice Department to turn over the records. 

After obtaining an extension to comply with the order, and instead of appealing to the U.S. Court of Appeals for the Ninth Circuit, the department filed a petition with a federal district court in Michigan, asking that court to review the materials to decide whether they should be disclosed. The federal district court in Michigan then transferred the petition back to the Central District of California, where the court once again ordered the Justice Department to disclose the records. 

In February 2024, the Justice Department appealed the district court’s second order to the Ninth Circuit.

Our Position: The Reporters Committee argues in a friend-of-the-court brief that the Ninth Circuit should dismiss the Justice Department’s appeal as untimely.

• Prompt disclosure of records is an essential feature of FOIA’s framework.

• The Justice Department’s petition to another federal district court was legally unsupported and undercuts FOIA’s purpose to make agency records available promptly.

• Compliance with FOIA’s prompt disclosure requirement is particularly important to the press, which relies on timely access to agency records to inform the public.

From the Brief: “Over the course of more than six years of litigation and despite multiple orders to disclose withheld records, DOJ has yet to produce a single document responsive to the request at issue in this litigation. In doing so, it has prevented him and other members of the public from learning about the government’s investigation into one of the largest corporate-environmental scandals in U.S. history — one that resulted in Volkswagen being assessed more than $30 billion in fines and damages.”