FOIA Commentary: FOIA Advisor’s 10-year anniversary

FOIA Advisor launched in April 2015 with a two-man crew, Allan Blutstein and Kevin Schmidt, who until a few months earlier had worked together at Cause of Action Institute. They were joined in December 2016 by another mutual colleague, Ryan Mulvey, who was then working for COA Institute from London. In the ensuing years we have all relocated, changed employers, and collectively raised nine children. A heartfelt thank you to our readers for motivating us to keep the blog going. To mark our double-digit anniversary, we’ve independently generated lists of our personal top ten FOIA events over the past decade. First, we present a brief side-by-side comparison; below that, our individual comments on our selections.

                                                               Top 10 FOIA events, 2015-2025

Allan	Kevin	Ryan
10. "Release to One, Release to All" (2015-2017)	10. Requests processed (2015-present)	10. Launch of FOIA.gov (2018)
9. OGIS’s first advisory opinion (2018)	9. NIH "FOIA lady" (2024)	9. OGIS's 10th Anniversary (2019)
8. Human Rights Def. Ctr. v. U.S. Park Police (D.C. Cir. 2025)	8. Cause of Action Inst. v. FTC (D.C. Cir. 2015)	8. FOIA Advisory Committee’s first term (2016)
7. FOIA Advisory Committee’s first term (2016)	7. FOIA personnel layoffs (2025)	7. Food Marketing Inst. v. Argus Leader Media (U.S. 2019)
6. One million FOIA requests (FY 2023)	6. Outside messaging services (2015-present)	6. Outside messaging services (2015-present)
5. Machado Amadis v. U.S. Dep’t of State (D.C. Cir. 2020)	5. Human Rights Def. Ctr. v. U.S. Park Police (D.C. Cir. 2025)	5. Competitive Enter. Inst. v. Office of Sci. & Tech. Policy (D.C. Cir. 2016)
4. Am. Immigration Lawyers Ass’n v. EOIR (D.C. Cir. 2016)	4. Food Marketing Inst. v. Argus Leader Media (U.S. 2019)	4. Am. Immigration Lawyers Ass’n v. EOIR (D.C. Cir. 2016)
3. Cause of Action Inst. v. FTC (D.C. Cir. 2015)	3. COVID pandemic (2020-2021)	3. OMB Fee Guidelines revisions (2020)
2. Food Marketing Inst. v. Argus Leader Media (U.S. 2019)	2. FOIA Improvement Act of 2016	2. Human Rights Def. Ctr. v. U.S. Park Police (D.C. Cir. 2025)
1. FOIA Improvement Act of 2016	1. Hillary Clinton's private email server (2015-2016)	1. FOIA Improvement Act of 2016

Made with HTML Tables

Allan’s comments

10. “Release to One, Release to All” (2016)

The terms “Chuck Cunningham Syndrome” and “Mandyville” each refer to situations in which a television character disappears from a show without explanation and is never mentioned again. DOJ pulled off this Hollywood stunt when it shepherded a proactive posting idea, solicited public comments, and never spoke of it again after the Trump administration killed the proposal Jimmy Hoffa style. I refer readers to our previous commentary about this subject.   

9. OGIS’s first advisory opinion (2018) 

Some requesters naively hoped that OGIS would periodically issue formal advisory opinions--in their favor, of course--after the agency’s 2009 launch. Nine years later, OGIS’s first opinion landed like a relative dud. And OGIS has subsequently issued only one additional advisory opinion. I refer readers to our previous remarks about OGIS’s first opinion.

8. Human Rights Def. Ctr v. U.S. Park Police (D.C. Cir. 2025)

Agencies will have to be extra careful now that federal courts--in the District of Columbia, that is--can no longer use their “inherent judicial authority” to claw back or limit the use of records inadvertently released to FOIA requesters. The D.C. Circuit left open the possibility for such court orders, however, where the records are “subject to any independent legal prohibition on disclosure such as applies to classified documents.” How generous.

7. FOIA Advisory Committee’s first term (2016)

The Committee held the third meeting in its history at about the same time FOIA Advisor launched, and one year later it issued a grand total of one recommendation for the Archivist: namely, to encourage Office of Management and Budget to revise its 1987 fee guidance. OMB finally agreed to make limited changes in December 2020, but only after it was sued.

6. One million FOIA requests (FY 2023)

It was only a matter of time before the million-request threshold was reached, and we are well on our way to two million. This is what happens when the law provides virtually free requests, and new technology enables mass submissions. Note that agencies reported receiving as many as 21.7 million requests before FY 2008, but those counts included Privacy Act requests.

5. Machado Amadis v. U.S. Dep’t of State (D.C. Cir. 2020)

Machado was the first appellate case to consider the application of Congress’s ill-considered foreseeable harm standard, hence its unavoidable appearance on my list. This was a bad test case for requesters, however, given the patently exempt records at issue. The Circuit prudently rejected appellant’s attempt to require the government to submit a geometric proof to show that disclosure of lawyers’ FOIA appeal recommendation could chill agency deliberations.

4. Am. Immigration Lawyers Ass’n v. EOIR (D.C. Cir. 2016)

The court might have been correct that non-responsive redactions “find no home in FOIA’s scheme,” but this decision produced the absurd result of requiring agencies to process material that requesters have never identified in their requests and, if fees apply, requiring requesters to pay for it. DOJ should have nipped this claim in the bud by processing the “NR” material as soon as the requester expressed an interest in it.

3. Cause Action v. FTC (D.C. Cir. 2015)

Qualifying as a news media representative is a golden ticket for FOIA requesters. So, there was joy in “requester land” when the D.C. Circuit held that the statutorily required “audience” could consist of a single person, and a lack of prior publication history was not disqualifying.  In sum, the court one-upped Oprah’s “You get a car!” episode and told the blogging world “You get free requests!”

2. Food Marketing Inst. v. Argus Leader Media (U.S. 2019)

The highest court upended decades-worth of decisions concerning the meaning of “confidential” information under Exemption 4, notably striking down the substantial competitive harm test. Efforts in Congress to restore that complex test have (fortunately) failed. Although the Second Circuit held in 2022 that the foreseeable harm standard requires a showing of commercial or financial harm to the submitter, that does not materially raise the Exemption 4 bar. 

1. FOIA Improvement Act of 2016

Sergio Leone’s epic spaghetti Western would be a good subtitle for this legislation, namely the Good, Bad, and the Ugly. The good: mandating the creation of an online request portal and establishing a minimum 90-day appeal period; the bad: further limiting the assessment of fees for delayed responses; and the ugly: codification of a foreseeable harm standard. 

Kevin’s comments

10. Requests processed (2015-present)

I personally used FOIA at the federal and state level to break stories and hopefully educate the public on problems and solutions. I appreciate the assistance of all of the records officers that worked hard to respond to my many requests. I cannot leave them out of a 10-year anniversary. None of these stories would be possible without them. 

9. NIH “FOIA Lady” (2024)

A capstone to #3 (below), but it shows how FOIA is only effective if the people responding to requests are honest and committed to transparency. 

8. Cause Action v. FTC (D.C. Cir. 2015)

A big win for requesters. News media status should not be reserved for old establishment media.

7. FOIA personnel layoffs (2025)

What happens to FOIA backlogs and service with the reductions in headcount across the federal government? What happens to smaller agencies subsumed by larger ones like USAID moving to State? These are important questions.

6. Outside messaging services (2015-present)

The ongoing issues of political appointees foregoing official government email and chat programs and instead using third party messaging services, including those with auto delete, is one of the biggest problems for open government advocates at all levels of government. 

5. Human Rights Def. Ctr v. U.S. Park Police (D.C. Cir. 2025)

As someone subjected to one of these improper clawback attempts, I'm glad the D.C. Circuit reined in the practice. If used at all it should be reserved for properly classified information.

4. Food Marketing Inst. v. Argus Leader Media (U.S. 2019)

A FOIA case at SCOTUS is rare, but the impact of this one is still being felt and Congress has been trying to pass a bill to address it. 

3. FOIA during COVID (2020-2021)

FOIA during compelled remote work during the COVID pandemic raised novel questions for FOIA officers. Some could not process certain requests without being in office and others lost basic functionality. 

2. FOIA Improvement Act of 2016

A substantive FOIA reform bill passing Congress is a rare event. 

1. Hillary Clinton’s private email server (2015-2016)

Easily tops the list. The FOIA and the records management angle mix together in my view. The saga went on for years with the CREW FOIA request from Dec. 2012 to all of the follow up FOIA requests for Clinton's and emails of past Secretaries of State. 

Ryan’s comments

10. Launch of FOIA.gov (2018)

The creation of FOIA.gov was mandated by the 2016 Amendments, but it’s a noteworthy development on its own.  We should remember the decommissioning of FOIAonline in the wake of FOIA.gov’s debut, too. Unfortunately, while the former functioned as a proper portal, which housed records that could be accessed by the interested public, FOIA.gov is not a true “portal”—it’s just a redirection tool that doesn’t always work. It’s a clunky mess.

9. OGIS’s 10-Year Anniversary (2019)

The OPEN FOIA Act of 2009 created OGIS. In its first decade, it issued one advisory opinion. It published several compliance reports, facilitated agency self-assessments, and made recommendations about best practices—notably, on the use of “still interested” letters to administratively close requests. It would be great to see OGIS’s staffing and resources beefed up, so that it can serve a stronger independent ombudsman’s role.

8. End of the First Term of the FOIA Advisory Committee (2016)

The end of the first term of the FOIA Advisory Committee speaks for itself. I’d only note that Congress should codify the Committee’s existence, so its continued work is ensured by law.

7. Food Marketing Institute v. Argus Leader Media (U.S. 2019)

Of the two FOIA cases to make it to the Supreme Court in the past decade, Argus Leader is the more consequential one. I filed an amicus brief in support of the respondent. I think the elimination of the “competitive harm” test, and the radical altering of the meaning of “confidential,” has had a real impact on how the government processes alleged confidential commercial information. In the immediate aftermath, I highlighted potential problems on the horizon. I still think there’s cause for amending the statute, although the need to do so has been admittedly lessened by courts clarifying that the foreseeable-harm standard robustly applies in the Exemption 4 context.

6. Outside messaging services (2015-present) 

I continue to hear positive feedback in the FOIA world about the report on electronic-messaging records retention and disclosure that some of my colleagues at AFP Foundation and Cause of Action Institute published in 2020. “Gone in an Instant” explored in detail how  many agencies were so poorly complying with the Federal Records Act and NARA Bulletin 2015-02—and presumably now also Bulletin 2023-02. The problem has deepened with the use of commonplace use of encrypted messaging applications, like Signal, often without agency blessing.  It’s a major problem in the FOIA world right now.

5. Competitive Enter. Inst. v. Office of Sci. & Tech. Policy (D.C. Cir. 2016)  

The CEI decision marks the first instance of the D.C. Circuit recognizing the simple yet important proposition that records do not leave the control of an agency when they are stored on a private account controlled by an agency official. The historical context of that case cannot be understated—it came on the heels of the FBI opening an investigation into Secretary Hillary Clinton’s use of a private email server, and amidst other FOIA litigation that, in relevant part, sought discovery into Clinton’s email practices. But CEI has proven to be quite a durable precedent as government officials continue (amazingly!) to use personal accounts for conducting official business, perhaps in the hopes of avoiding transparency.

4. Am. Immigration Lawyers Ass’n v. EOIR (D.C. Cir. 2016)      

AILA was an important case because it ended the practice of subject-matter scoping. It also started an ongoing conversation about the foundational question of the definition of a “record”—a question that heretofore focused mainly on easy cases involving requests for tangible non-documentary objects, like JFK’s bloody suit coat or D.B. Cooper’s clip-on tie. I have a personal interest here, since I’ve litigated this question of the meaning of a “record” and written elsewhere about it.

3. OMB Fee Guidelines Revisions (2020)

I’m proud to say OMB’s revisions were prompted by litigation undertaken by Cause of Action Institute. Of course, the FOIA Advisory Committee had recommended that OMB take action, too. Setting aside the limited scope of OMB’s revisions and my personal quibble about their legal nature—are they a “rule” or not?—it’s great that OMB finally recognized the importance of significant court decisions like Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015), and Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). Unfortunately, we’ll probably need to wait another 30 years before OMB does another update!

2. Human Rights Def. Ctr v. U.S. Park Police (D.C. Cir. 2025)

As a requester, I think this case was a fantastic development. Agencies have infrequently invoked claw-back over the years, tut there has been a demonstrated increase in its use recently. That’s one of the reasons I filed an amicus brief in support of the requester. Judge Pillard, writing for a unanimous panel, seemed to accept—or at least not reject—effectively all of our arguments, though she did not reach the First Amendment. This case mattered for a proper reading of the FOIA, but perhaps more importantly, for properly understanding the inherent powers of an Article III court.

1. FOIA Improvement Act of 2016

Despite the slow speed at which they were implemented, the 2016 Amendments have had a positive impact on FOIA administration. Some of the reforms might have proven more theoretically valuable than practically so; the “Rule of 3,” for example, hasn’t worked as intended by Congress. That underscores a broader problem with Sec. 552(a)(2) compliance. And the new fee limitations have created an unexpected dynamic given agency backlogs and average processing times. But, more than anything, the codification of the foreseeable-harm standard has truly shifted the landscape. The standard has real teeth now that we’ve seen strong circuit precedent develop in cases like Reporters Committee for Freedom of the Press v. FBI,3 F.4th 350 (D.C. Cir. 2021), and Seife v. FDA, 43 F.4th 231 (2d Cir. 2022).

FOIA Commentary: Chevron, Loper, and Exemption 3

FOIA Advisor’s Ryan Mulvey wrote the following article, which was published in the Yale Journal on Regulation’s Notice & Comment blog.

Sunshine Week, Loper Bright, and FOIA

Ryan P. Mulvey, Notice & Comment, Apr. 8, 2025

The Freedom of Information Act (FOIA) is codified with the Administrative Procedure Act (APA) as part of Title 5 of the U.S. Code, and FOIA law is uncontroversially considered a subset of administrative law.  At the same time, FOIA is unique, with its own judicial review provision and standards, as well as rather unconventional litigation practice.  Some administrative law practitioners might be surprised to learn the Supreme Court’s groundbreaking decision in Loper Bright Enterprises v. Raimondo, and its overruling of Chevron deference, could be relevant to FOIA.  For that reason, and to mark last month’s celebration of Sunshine Week, I would like to explore how Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.

Read the rest here.

FOIA Commentary: White House FOIA Reading Rooms

Recent media reports have included comments from the requester community about the removal of FOIA “reading rooms” from websites of those components of the Executive Office of the President (“EOP”) that qualify as “agencies,” as defined by Section 552(f)(1). Although these electronic libraries were inexplicably unavailable for several weeks—arguably, in violation of the FOIA’s proactive disclosure requirements—all FOIA landing pages have been restored.

There are five EOP “agencies” subject to FOIA. Links to their FOIA pages are provided below.

1. Office of Management and Budget (“OMB”)

2. Council on Environmental Quality (“CEQ”)

3. Office of Science and Technology Policy (“OSTP”)

4. Office of National Drug Control Policy (“ONDCP”)

5. Office of the U.S. Trade Representative (“USTR”)

To be sure, not all of these components have equally robust reading rooms. All the components have FOIA webpages with details about submitting requests. Further research could reveal whether archived reading rooms from prior Administrations contained more information. At the least, though, the availability of these pages and the restoration of electronic libraries is a promising step towards full FOIA compliance.

[N.B. See our links to all agency Reading Rooms here.]

FOIA commentary: Top 2024 court decisions

Federal courts issue hundreds of decisions in FOIA cases every year. Most do not break new legal ground or attract media attention. In honor of Sunshine Week, and before 2025 gets too far away (we recognize we’re later than usual), the legal eagles of FOIA Advisor — Allan Blutstein (AB) and Ryan Mulvey (RM) — look back at 2024 and discuss the decisions that stood out to them (in no particular order).

1. Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C. Mar. 31, 2024) — on remand from the D.C. Circuit, finding that the names of federal contractors who supplied pentobarbital to the Federal Bureau of Prisons (BOP) qualify as commercial information under Exemption 4; further finding that BOP demonstrated that the disputed contract terms were confidential and that foreseeable harm would result from disclosure of the contractors’ names and contract terms.

AB: To quote the Honeymooner’s Ralph Kramden, “how sweet it is.” This was precisely the decision I was hoping to see on remand, at least with respect to whether the identities of these contractors met the very low threshold of “commercial” information. As the district court nimbly reasoned, “the fact of the contractors’ names is intrinsically linked to the fact of their commercial activity in a particular market. Where a contractor’s identity cannot be separated from its commercial activity, its identity is commercial information. Put another way, the names of the pentobarbital contractors are necessarily commercial not because they are names but because they are names that appear in government contracts.” Notably, plaintiff did not appeal this decision. Do you think they should have, Ryan? Ideally, Congress should pass a shield law to protect lethal drug manufacturers and others, as several states have done. If it doesn’t, nothing stops future requesters from re-litigating this issue. Alternatively, perhaps the federal government should use firing squads for capital punishment, a method of execution Justice Sonia Sotomayor has endorsed.

RM: I don’t have strong views on whether the contract terms CREW sought were properly treated as “confidential.” The district court’s conclusion on that point in this remand turned in large part on how the parties strategically structured their arguments and exemption claims. I’m more frustrated by the court’s decision with respect to the pentobarbital contractors’ identities. Judge Friedrich was wrong the first time around on that issue, and she’s wrong again. As I explained last year, when we discussed the D.C. Circuit’s 2023 reversal of the district court’s original opinion, the beauty of the majority’s test for “commercial” was its objectivity: commercial information must be intrinsically or inherently commercial, that is, “commercial in and of itself.” This decision on remand distorts that standard. Judge Friedrich instead adopted the kind of functional inquiry endorsed by Judge Sentelle in his mediocre concurrence—one that conditions the “commercial” quality of the contractors’ names on the context of the records at issue. To wit, “the names of the pentobarbital contractors are necessarily commercial not because they are names but because they are names that appear in government contracts.” Yet those names sometimes appear on their own, outside the context of any contract! So how are the names commercial “in and of themselves”? It boggles the mind. I do think CREW should have appealed, but I understand they settled for attorney’s fees this past September. So, in a sense, they still won.

AB: There are all sorts of reasons—some unrelated to the merits— why CREW may have abandoned ship. I’d like to think that the prospect of a loss before the Supreme Court, which nullified the D.C. Circuit’s longstanding “substantial competitive harm test” in 2019, was at least in the back of their mind. The government has a strong case that “commercial” information includes any information in which a person has a commercial interest, i.e., it has a value to the person that disclosure threatens to diminish. I am not sure why your mind is boggled by the district court’s reasoning, which essentially is a mosaic theory. Thus, the name of a business may alone appear insignificant, but when combined with other information (such as a government contract) it can reveal important commercial activities. Courts have accepted mosaic theories of harm in the context of Exemptions 6 and 7(C); let’s hear it for Exemption 4.

RM: The district court wasn’t supposed to engage in “harm” analysis. In fact, Judge Friedrich got in trouble the last time around by looking at “commercial or financial repercussions” when deciding the names were “commercial information.” Circuit Judge Pillard’s opinion for the CREW court was clear: Exemption 4, in relevant part, only applies to information that is “commercial in and of itself.” “In and of itself” is commonly understood to mean intrinsically or inherently, and without consideration of contextual factors. Yet Judge Friedrich started her analysis by observing that, “insofar as the contractors’ contracts . . . concern the[ir] commercial operation[s],” then anything within those contracts, including names, is ipso facto “commercial information.” Let’s set aside the fact that the D.C. Circuit explicitly stated names can’t be “commercial” because they “reveal the existence of a contract.” On its own Judge Friedrich’s reasoning fails for incorrectly focusing on the nature of the underlying records (the contracts), rather than the nature of the information in dispute (the contractors’ names"). Again, she didn’t grapple with the “commercial nature” of the names qua names—regardless of their function in the records, or their connection to “an ongoing ‘business purpose,’” or their revelation “that the government is a customer.” And have I mentioned yet how she still thought (again, incorrectly) that the confidential quality of the names was relevant to treating them as “commercial”?

2. Am. Oversight v. HHS (D.C. Cir. May 17, 2024) — reversing the district court’s decision granting judgment to the government and ruling, in most relevant part, that communications between agencies and Congress (or their staffs) did not fall within the Exemption 5’s consultant corollary doctrine, as interpreted by the U.S. Supreme Court in Klamath, because “each side had an independent stake in the potential healthcare reform legislation under discussion”; the dissent contended that FOIA’s “text, purpose, structure, and legislative history” supported withholding under Exemption 5, notwithstanding Klamath, and that “the ramifications of the majority’s contrary interpretation of FOIA are actually quite breathtaking.”

AB: I am not thrilled about the consequences that might ensue from this decision (outlined by the dissent), but I acknowledge that the majority’s holding might be correct. I have no doubt, however, that this case is last year’s most significant one. Ever since Klamath was decided, DOJ has interpreted the Supreme Court’s Exemption 5 threshold test as going “no further than excluding ‘an interested party [that is] seeking a Government benefit at the expense of other applicants.’” DOJ/OIP, Supreme Court Rules in Exemption 5 Case, FOIA Post, Apr. 4, 2001. In DOJ’s view, Klamath did not apply “the Ninth Circuit’s more general test that disqualified an outside party due to the existence of a self-interest alone.” Two of three panelists flatly rejected DOJ’s longstanding position, opining that self-advocacy was, in fact, the “fundamental distinction” identified by Klamath and that “no appellate court” had adopted DOJ’s test. Regardless of how you come out on what the disputed records reveal in this case (i.e., self-interested negotiations, consultations, etc.), the majority’s opinion on the legal standard to be applied is momentous.

As for the dissent, I was confused by the argument that Klamath doesn’t govern this case. The government never suggested that, so I’ll let the majority’s reply speak for itself. Better is the dissent’s contention that the consultant corollary test was met on the grounds that DOJ’s interpretation of Klamath was accurate; the evidentiary record established a common interest between Congress and the Executive (both controlled by the same party); and Congress and their staff have similar obligations to exercise good judgment and to support the Constitution. I wonder why DOJ did not seek certiorari on that ground. Did it concede defeat? Waiting for Congress to amend the statute? Will a future case provide better facts? I can only speculate, of course.

RM: I agree this case might be the most important decision of 2024. The circuit not only rejected the consultant-corollary doctrine as applied to many types of interbranch communications, but it called into question well-established circuit precedents like Public Citizen v. DOJ and Ryan v. DOJ. There’s long been divergent lines of cases in the jurisdiction when it comes to records reflecting agency interactions with Congress; I’m glad we finally got some clarity, but we have yet to appreciate long-term impact.

Some might try to argue the dissent overstated any ill consequences. Judge Garcia, defending the majority, suggested there could still be “[c]ases in which members of Congress or their staffs” satisfy the Exemption 5 threshold. I’m not sure you’re likely to find those cases with any regularity. When is anybody in the Congress acting in a totally disinterested way, as if he had stepped into the “shoes” of an agency employee? That’s the standard if we take Klamath seriously…and in my mind, it’s the proper understanding of the corollary, which is entirely atextual and a judicial invention.

One final note: I was struck by the court’s oblique suggestion that, while Exemption 5 might no longer be useful for withholding records of communications between agencies and Congress, “[n]othing about today’s decision changes the fact that Congress itself is not subject to FOIA requests.” At least in this case, HHS didn’t dispute that everything was an “agency record.” But I imagine we’ll see more attempts by Congress—and the President, especially if DOGE is determined not to be an “agency”—to impose conditions or enter agreements with agencies to retain control over correspondences, so that all such records are either “congressional records” or “presidential records.” I first warned about that possible trend eight years ago.

3. Cox v. DOJ (2nd Cir. Aug. 5, 2024) — affirming district court’s decision that a congressional committee’s report concerning the CIA’s post-9/11 detention and interrogation program was a “congressional” record, not an “agency” record subject to FOIA, even though it was disseminated to various federal agencies; in reaching its decision, the Second Circuit found that because the Committee “manifested a clear intent to control the report at the time of its creation, and because the Committee's subsequent acts did not vitiate that intent,” the agencies that possessed the report did not “control” it under the “intent test” adopted by the Circuit in Behar v. DHS (2nd Cir. 2022).

RM: For those familiar with the D.C. Circuit’s caselaw on the “modified control test” and the treatment of alleged “congressional records,” the outcome here wasn’t terribly surprising, especially given the Second Circuit’s explanation of the relevant control analysis in Behar. Moreover, as the Cox court describes at length, the "CIA “torture” report at issue was already the subject of a rather prominent FOIA cases several years ago in another jurisdiction, ACLU v. CIA, 823 F.3d 655 (D.C. Cir. 2016). The requester in ACLU filed an unsuccessful cert petition, arguing that multi-factor tests like Burka and United We Stand /Judicial Watch v. Secret Service conflict with Tax Analysts. That Mr. Cox didn’t seek Supreme Court review is more likely a reflection of his pro se status, rather than a calculated decision that such an argument isn’t worth making again. To be sure, there are some interesting and important aspects of the modified control test that need to be worked out. What matters most for our purposes, though, is that Cox, together with Behar, reflects a definite embrace of the D.C. Circuit’s approach to the control question, at least for alleged presidential or congressional records.

AB: Describing this ruling as not terribly surprising is being too kind to Mr. Cox; it was a near-slam dunk. Mr. Cox deserved the Second Circuit’s wrap on the knuckles for failing to cite Behar in his opening brief. He’s no ordinary pro se FOIA plaintiff, but an associate law professor and experienced litigator. His prayer for divine intervention, i.e., an intervening reversal, was an interesting strategy. I do not blame the professor for not seeking certiorari in light of the unsuccessful bids by ACLU and Behar. I doubt a third attempt would have been the charm.

4. Nat’l Sec. Archive v. CIA (D.C. Cir. June 7, 2024) — affirming district court’s district decision that the CIA properly invoked Exemption 1 to withhold a 1989 report drafted by Leonard Peroots concerning a 1983 nuclear crisis with the Soviet Union; rejecting plaintiff’s argument that the CIA was precluded from withholding the memo because the State Department previously published a version of the memo with the CIA’s blessing.

RM: To start, let me propose that the background of this case and the record at issue is as interesting as the decision. Shout out to my fellow requester, Nate Jones of the Washington Post, who wrote a book on “Able Archer 83.” A lot of his research depended not only on archival efforts, but also FOIA requests, as I understand it. Turning back to the D.C. Circuit’s opinion, I think the application of the three-factor “official acknowledgement” doctrine was probably correct. It is unclear to me how the State Department’s redacted and transcribed version of the Perroots Memo could effect a waiver of the CIA’s exemption claims, especially since the “record” was neither “as specific” nor identical to what was published in the Foreign Relations of the United States series. Alas, the opinion seemed to focus more on why the State Department’s acknowledgment for the CIA’s “contribution” in publishing the transcribe memo was legally irrelevant. There are two other points that I find significant. First, I have mixed feelings about the Circuit’s rejection of the “public domain doctrine” as something distinct from “official acknowledgement.” I’m not sure the doctrines are actually “interchangeable,” as Judge Childs suggests. There is some confusion here about a record being accessible to the “public”—say, because it was leaked—and it being a “permanent public record,” such as a court filing. Second, I thought it odd that the opinion opened with a discussion of standing. I suspect that is a reflection of Judge Rao being on the panel.

AB: Picking up on your last point, I initially assumed the discussion of standing was triggered by NSA’s attempt to subject the disputed memo to a reclassification review, but the panel ultimately declined to consider that issue. Standing is uncontroversial in FOIA cases litigated under 5 U.S.C. § 552(a)(3), which Judge Rao surely knows, and there’s no indication that the government disputed it. Be that as it may, I agree with all of your points. It would have been helpful if the court had distinguished or reconciled the two “but see” D.C. Circuit “public domain” cases citied in the opinion. For example, in Cottone v. Reno (D.C. Cir. 1999), I presume the tapes introduced in open court during a criminal trial were, or would be, deemed “officially acknowledged” by the government. And in Students Against Genocide v. Dept. of State (D.C. Cir. 2001), there was no or little dispute that U.S. Ambassador Madeleine Albright displayed certain photographs to the U.N. Security Council; the issue was whether such display constituted a public release. Perhaps a law student would like to address this more thoroughly in a journal article.

5. Shapiro v. Dep’t of Justice (D.D.C. Aug. 1, 2024) — faced with “the latest in a very long series of disputes between the parties,” ordering the FBI to process and produce the potentially responsive contents of the agency’s “Freedom of Information and Privacy Act Document Processing System (‘FDPS’)”; rejecting the FBI’s arguments that “substantive entries” in its FDPS were alternatively (1) outside agency control, (2) lacked “sufficient permanence” to be considered a “record,” or (3) would require “record creation” in order to disclose; similarly rejecting the FBI’s argument that production would “involve a ‘gargantuan’ effort,” as creating screenshots would not be “any different [than] the burden imposed in myriad FOIA cases.”  

RM: Poor Judge Moss. This Shapiro case is interminable. It was filed in 2013, and it’s still going. The FBI is in the midst of producing the screenshots of the FDPS, as ordered by the court. As for the outcome, a few observations: I think the agency misfocused by arguing about “agency control.” There’s no serious basis, in my mind, to conclude that the contents and structure of an FBI-owned and operated database, which is regularly used by FBI employees for officials purposes, is not under agency “control.” It would be more persuasive to focus on the antecedent definitional question of whether the database tabs are even “records.” The FBI tried to do that by highlighting the supposed ephemeral quality of certain types of information in the FDPS, but it’s arguments didn’t land. Again, part of that is likely because of Judge Moss’s impression that there was some conflation going on with the control argument. Also, many types of records are dynamic in agency recordkeeping systems—that point by itself means very little, I think. The strongest argument was really the one about “record creation.” And that’s been a hot topic lately. There were big cases in the Second and Fifth Circuit not too long ago—ACLU Immigrants’ Rights Project v. ICE and Rutila v. Dep’t of Transportation, respectively. Rutila, especially, could have been persuasive authority, as it rejected the notion that an agency had to create screenshots of “tabs” in an agency database. Certainly, the line between record creation and the exporting of databased-stored information is a hard one. But the FBI’s downfall was likely Judge Moss’s math about the burden of complying, which he determined to be in simlar to with “regular” FOIA processing.

AB: I wholeheartedly agree that these database cases are challenging—especially so for me because I am not savvy with technology beyond the 1980s. Atari anyone? The FBI gave it the old college try on the “records creation” argument, but the court viewed this as a non-burdensome matter of extracting existing data/information. So, even if cited by the FBI, I am skeptical the court would be persuaded by the Fifth’s Circuit’s 2023 decision in Rutila, which held that DOT was not required to take screenshots “of information it does not store.”

6. Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex. Jan. 5, 2024) — determining that plaintiff’s request for 7.8 million free-text responses to agency’s COVID-19 vaccine safety monitoring system would not be unreasonably burdensome for agency to process, because: (1) the volume of the responsive texts would yield between as little as 83 thousand pages and at most 650 thousand pages; (2) CDC conceded that 93 percent of the responses would require no redaction at all; and (3) any necessary redactions of personal identifying information pursuant to Exemption 6 would be “simple” and “capable of automated assistance”; and (4) plaintiff established a “substantial public interest” in the records.

AB: The Northern District of Texas has become a popular venue for plaintiffs to bring COVID-related FOIA claims, because judges there have not hesitated to order HHS components to process voluminous records at seemingly breakneck speed. In this instance, the court decided that a “mere” 83 thousand pages or “at most” 650 thousand pages would be reasonable to process in one year with monthly quotas. Plaintiffs are wasting no time citing this decision in support of their own requests seeking production of voluminous records from other agencies. In response, defendant-agencies should certainly point out that the judge’s ruling was expressly guided by a substantial public interest concerning a once-in-a-century event. Notably, more reasonable judges in the DDC have granted stays to HHS based on the enormous processing burdens imposed by N.D. Texas See, e.g., Informed Consent Action Network v. FDA (D.D.C. Nov. 20, 2024).

RM: Yes, Judge Kacsmaryk has gotten a reputation for these sort of scheduling orders that impose huge burdens on agency components, especially at HHS. I don’t know if I have much to add, except to emphasize that the case implicated significant public-interest reasons for expediting production, and that the court took a fairly detailed look at the burden its order would impose. I don’t think things would have turned out so favorably for the requester if the agency hadn’t admitted that nearly all of the records (93%) would require no redaction, or if the remainder weren’t “simple” in terms of the application of Exemption 6.

7. Louise Trauma Ctr. v. Wolf (D.D.C. Sept. 18, 2024) — ruling that: (1) plaintiff was eligible for attorney’s fees because its litigation was the “most natural explanation for the sudden movement” on plaintiff’s FOIA requests; (2) plaintiff was also entitled to attorney’s fees, notwithstanding the government’s seemingly valid argument that plaintiff was “a front for the collection of attorney’s fees”; and (3) no award was warranted, however, because plaintiff’s time records were “vague, inadequately descriptive, or made in error,” the request was “grossly out of line with requests in similar cases, reflecting an extraordinary lack of billing judgment,” and plaintiff has been “admonished repeatedly” for engaging in the “same unreasonable and improper billing practices.”

AB: You have to hand it to plaintiff’s counsel for blowing this one. How difficult is it to keep adequate billing records? Interestingly, in another fee-related decision issued three weeks earlier, the court noted USCIS’s seemingly valid concerns that Louise Trauma Center’s executive director and its counsel shared the same last name, that plaintiff does not operate as a non-profit or disseminate any information beyond posting records on its website, and that plaintiff or counsel may have a personal incentive to use FOIA to obtain fees. Although Louise Trauma Center was awarded fees in that case, the amount was slashed by 61 percent for unreasonable billing. Better than nothing!

RM: As our summary paragraph notes, the court went so far as to highlight the government’s complaint that this particular requester is a “front for the collection of attorney’s fees.” Although that didn’t prevent the judge from concluding that the requester was entitled to fees, I do think it colored the analysis—including on the reasonableness of the fee aware—and perhaps rightfully so. On a related note, Judge McFadden has claimed repeatedly that non-profit groups are ruining FOIA. That particular claim has been debunked, in my mind, despite its persistence among some jurists. (See, e.g., here, here, and here!) But groups like this requester help perpetuate the stereotype.

Honorable Mentions

Reclaim the Records v. U.S Dep’t of State (S.D.N.Y. Aug. 7, 2024); Reclaim the Records v. U.S. Dep't of State (S.D.N.Y. Aug. 26, 2024); and Reclaim the Records v. U.S. Dep’t of State (S.D.N.Y. Sept. 9, 2024) — ruling that State Department performed adequate searches for indices, lists, or extracts of various information that could not be extracted from computer systems with technical limitations, and that compiling the requested records would either entail the creation of new records and/or be unduly burdensome.

McWatters v. ATF (D.D.C. Feb. 16, 2024), aff’d (D.C. Cir. 2025) (per curiam) — on renewed summary judgment, finding that ATF properly relied on Exemption 7(C) to withhold portion of a tape recording made by one of the 100 victims of a Rhode Island nightclub fire in 2003; crediting ATF declaration that faint human voices could be heard on the recording and that surviving family of the deceased had privacy interests even if voices could not be attributed to specific victims; further, rejecting plaintiff’s asserted public interest as nothing more “than having the information for its own sake,” similar to case involving the recording of the last minutes of NASA’s Challenger shuttle.

Insider, Inc. v.. GSA (D.C. Cir.) — affirming district court’s decision that GSA properly invoked Exemption 6 to withhold the names of several low-level members of President Trump’s and Vice President Pence’s outgoing transition teams; reasoning that such individuals were not government employees, disclosure would not shed light on GSA activities, and the mere possibility that such individuals might be aware of government conduct was too speculative to qualify as a public interest.

FOIA Commentary: Major news outlets misreport recent steps in FOIA case about Prince Harry’s immigration records

Recently, several major news sources have published articles claiming that a federal judge "ordered the Department of Homeland Security to “release Prince Harry’s immigration records.” NBC News, for example, reported that the release of these records could reveal the Duke of Sussex’s “prior drug use before coming to America.” USA Today filed a similar story.

These reports are incorrect, as FOIA Advisor’s Ryan Mulvey explained on X, formerly known as Twitter. The confusion appears to stem from a misreading of the district court docket and Judge Carl Nichols’s ruling on the Heritage Foundation’s motion for reconsideration.

In September 2024, Judge Nicholas ruled against Heritage, as FOIA Advisor thrice reported (here and here and here). Heritage subsequently moved for reconsideration, arguing that the court had failed to review the government’s in camera filings (as well as a transcript of an ex parte hearing), which were sealed from Heritage and the public docket. Looking to D.C. Circuit caselaw, Heritage maintained that Judge Nicholas should have reviewed these filings to ensure everything that could be made public was accessible.

Judge Nichols granted the motion for reconsideration in part roughly one month ago. He directed the government to provide its position on “whether and to what extent (1) the declarations it provided in camera, (2) the transcript of the in camera hearing, [(3)] the Court’s August 15, 2024 Order, and/or (4) additional parts of the Memorandum Opinion can be redacted and made available to Heritage.”

This past weekend, upon consideration of the government’s recommended disclosures, the court directed DHS to lodge those redacted versions on the public docket. The documents should be available tomorrow, March 18th. Notably, the court accepted DHS’s contention that no further portion of the memorandum opinion granting summary judgment to the agency could be released.

Although there might be some very minimal amount of information substantively related to Prince Harry contained in the documents to be released by DHS, it will almost certainly not be anything that could be protected by Exemptions 6 and 7(C). More importantly, these records will not constitute Prince Harry’s immigration file or “visa records”—they are simply the supporting declarations and court transcripts created in the course of litigating Heritage’s case.

Commentary: Top 2024 FOIA news

As 2025 gets underway, the FOIA Advisor staff is pleased to provide a summary of the most notable FOIA developments that occurred outside the courtroom in 2024. We will discuss our top 2024 court decisions in a forthcoming post.

Legislation

On June 3, 2024, U.S. Representative Mike Quigley (IL-05) re-introduced the Transparency in Government Act, H.R. 8597, which would require agencies to, among other things, post all FOIA-disclosed records online, affirmatively disclose additional records, and conduct a public interest balancing test in addition to assessing foreseeable harm. No action has been taken on the bill since its introduction and referral to several committees.

On July 23, 2024, Congressman Adam Schiff introduced the “Judicial FOIA Expansion Act,” H.R. 9108, which would permit the public to request records from federal courts through the same process used for federal agencies. The bill was referred to the House Oversight Committee on the same date. No further actions have been taken. Read FOIA Advisor’s commentary on the bill here.

Regulatory updates

By our count, four agencies proposed changes to their FOIA regulations in calendar year 2024 that have not yet been finalized: Council on Environmental Quality; Federal Election Commission; Office of the Comptroller of the Currency; and Selective Service System.

Five agencies issued final rules amending their FOIA regulations in calendar year 2024: Social Security Administration; Defense Nuclear Facilities Safety Board; Postal Regulatory Commission; Office of Management and Budget; and Peace Corps. The Department of Education and the Department of Defense also issued technical corrections in early 2024 to rules they finalized in 2023.

Federal FOIA Advisory Committee

The FOIA Advisory Committee for the 2022-2024 term wrapped up its business with the issuance of its final report on June 13, 2024. In sum, the Committee made 16 recommendations to the Archivist. Several recommendations pertained to “improvements in staffing, training, and technology.” The Committee also addessed “best practices aimed at improving dialogue with individual FOIA requesters, as well as with the FOIA community and civil society at large.”

The Committee’s 2024-2026 term convened its first two meetings in September 2024 and created three subcommittees to advance the Committee’s work: Implementation Subcommittee; Statutory Reform Subcommittee; and Volume and Frequency Subcommittee. FOIA Advisor’s Ryan Mulvey co-chairs the Statutory Reform Subcommittee.

Other agency actions

• The Department of Justice announced on March 4, 2024, that federal agencies had received a record-high total of 1,122,166 requests in fiscal year 2023, a nearly 30 percent increase from FY 2022. DOJ published a more comprehensive summary of agency FY 2023 annual reports on June 7, 2024.

• On March 7, 2024, the U.S. Government Accountability Office issued a report about agency FOIA backlogs.

• A new search tool for law enforcement records was added to the FOIA.gov website on July 18, 2024.

• The Office of Government Information Services published written recommendations on three issues in calendar year 2024: (1) Using FOIA to Access Intelligence Community Records (Dec. 9, 2024); (2) Estimated Dates of Completion Challenges Symptoms of Larger Delay Issue (Oct. 30, 2024); and (3) NCND/Glomar: When Agencies Neither Confirm Nor Deny the Existence of Records (Mar. 24, 2024).

Stories of interest

We typically do not post news stories about the filing of FOIA requests or stories that are based on records obtained via FOIA. But some are too quirky or consequential to ignore entirely. Here are a few that captured our attention in 2024.

• The Heritage Foundation’s “oversight project” deluged federal agencies with thousands of FOIA requests targeting the emails of federal employees. See, e.g., Robin Bravender, Heritage Foundation’s record requests rattle feds, Greenwire, Oct. 2, 2024. A debate about Heritage’s FOIA practices ensued. Compare Lauren Harper, Heritage Foundation sends lots of FOIAs. That shouldn’t be a problem Freedom of the Press Found., Oct. 8, 2024, with Michael Ravnitzky, The Heritage Foundation’s Reckless Misuse of FOIA to Target Individuals, LLRX, Oct. 9, 2024, and Pub. Employees for Envtl. Responsibility, Press Release, Feds Should Stifle Heritage Foundation Witch Hunt, Oct. 17, 2024.

  • This debate occurred before the November 2024 election, so partisans might change their positions on Heritage’s tactics. Indeed, less than 48 hours after Election Day, the Sierra Club announced a “massive FOIA operation.” See Robin Bravender, Sierra Club boss vows ‘massive FOIA operation’, Greenwire, Nov. 7, 2024.

• In May 2024, the U.S. House’s Select Subcommittee on the Coronavirus Pandemic disclosed evidence suggesting that NIH employees deleted messages and tried to evade FOIA. See, e.g., Benjamin Mueller, Health Officials Tried to Evade Public Records Laws, Lawmakers Say, NY Times, May 28, 2024.

• The Internal Revenue Service’s online FOIA portal directs requesters to register with a private identity credentialing service, a system the IRS defended. See Rebecca Heilweil, IRS defends use of biometric verification for online FOIA filers, FedScoop, June 10, 2024.