Towards a Definition of a FOIA “Record”: The D.C. Circuit’s Decision in Cause of Action Institute v. Department of Justice

By Ryan P. Mulvey & James Valvo, III, Yale J. on Reg. June 3, 2021

The Freedom of Information Act (“FOIA”) provides the public with access to “records” of the Executive Branch.  It does not provide for disclosure of “information” in the abstract.  Surprisingly, however, the definition of a “record” has never been established, despite the seeming inclusion of such a definition at Section 552(f)(2)(A).  And although there is no shortage of caselaw on the distinct question of the meaning of an “agency record,” the antecedent question of what a “record” is has only recently started working its way through the courts.  The D.C. Circuit’s recent opinion in Cause of Action Institute v. Department of Justice provides helpful, if incomplete, insight.  The major takeaway from that decision is that agencies should no longer be permitted to break records into small pieces after receiving a FOIA request in order to avoid disclosure.

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