Even with professional counsel, Smith says, the suit still took up a lot of her time. The day before her court filing was due, the government made a “substantial” release of information, rendering the previous legal efforts more or less worthless.
Others have succeeded by initially filing suits themselves, and then later retaining professional counsel as the suit progressed. Current Miami Herald contributor and librarian Theo Karantsalis, of Florida, began a suit pro se suit against the Department of Defense and the Air Force that later resulted in a victory and records being handed over. The Associated Press detailed his attempts to get information.
Steve Aftergood, director of the Federation of American Scientists Project on Government Secrecy, has represented himself twice in lawsuits related to requests for information related to federal intelligence budgets. Previously, he received professional counsel from Kate Martin of the nonprofit Center for National Security Studies.
When Martin was unavailable to help with his most recent requests, Aftergood decided that representing himself in court would be “an interesting challenge.” He used the previous filings as a template, since there were both content and case law overlap.
“Even so, it was necessary to do a fair amount of new legal research, and to get acquainted with the rules of procedure,” he said. “I spent quite a bit of time at law libraries, copying old cases and studying them. Pro se litigants should understand that, in courts of law, what you need in order to win is a compelling legal argument. Passion or eloquence (or self-righteousness) is no substitute, and may actually work against you. ‘I really want the document, and I think I am entitled to it’ is not a legal argument. You have to do the research, and to make the case. If you can do that, then you have a chance.”
Prospective litigants should also carefully consider the potential downsides of litigation, Aftergood says. “If they lose their case, they may not only lose time and money,” he told me. “They may also generate adverse rulings that will become part of the legal landscape and that will make life more difficult for future litigants. The fact is, litigation is not always the right move.”
For Aftergood, the hard work ultimately paid off. Though he lost one of his two suits, a judge ruled in his favor and against the government in the other. “For me,” he said, “it was a powerful antidote to cynicism about FOIA and about the legal system.”