As we noted in our most recent monthly roundup, the U.S. Court of Appeals for the District of Columbia is scheduled to hear argument in a FOIA-related case, Am. First Legal Found. v. Dellinger, 24-5168, on Wednesday, February 12, 2025. The primary issue in dispute is whether 5 U.S.C. § 1216 compels the Office of Special Counsel to investigate any allegation of an arbitrary and capricious withholding of records under FOIA. Although subsection (a)(3) states that OSC “shall” investigate any such allegation, subsection (c) provides that OSC “may investigate and seek corrective action.”
The district court ruled in favor of the government, holding that the statute at issue authorized but did not require OSC to investigate allegations of arbitrary and capricious FOIA withholdings.
Follow the argument live here.