Court opinions issued Feb. 25-26, 2025

February 26, 2025

Leopold v. Dep’t of State (D.D.C.) — deciding that: (1) agency improperly relied on the deliberative process privilege’s consultant corollary doctrine to withhold its communications with pending nominees to Senate-confirmed positions, because a nominee has a self-interested, independent stake in the confirmation process; (2) agency properly withheld talking points and many other—but not all— records under the deliberative process privilege; and (3) agency met the foreseeable harm and segregability requirements.

February 25, 2025

Transgender Law Ctr. v. ICE (D.D.C.) — in case concerning agency’s treatment of transgender detainees, concluding that: (1) ICE’s search was deficient because the agency neglected to clearly show that it searched the email accounts of two relevant employees, it unreasonably omitted one search term, and it unreasonably used another search term only in combination with other words; and (2) ICE failed to properly support its withholdings under Exemption 5’s attorney-client and deliberative process privileges, including whether foreseeable harm would result from disclosure; (3) ICE did not show how the records withheld under Exemptions 7(C) and 7(E) met the law enforcement threshold; (4) ICE improperly relied on Exemption 6 to withhold agency email domain addresses, to categorically withhold the names of “lower-level” agency employees and third parties, and to withhold name of a training video narrator.

Summaries of all published opinions issued in 2025 are available here. Earlier opinions are available for 2024 and from 2015 to 2023.

Jobs, jobs, jobs: Weekly report Mar. 3, 2025

The 90-day hiring freeze imposed by the White House on January 20, 2025, has significantly reduced the number of fillable government FOIA positions. Below are vacancies that appear to be exempt from the freeze.

Att’y-Advisor, Dep’t of Homeland Sec./USCG, GS 13-14, Wash., DC, closes 3/3/25 (public).

Records & Info. Mgmt. Specialist, Dep't of Justice, OSG, GS 13, Wash., DC, closes 3/10/25 (non-public).

Att’y-Advisor, Dep’t of Homeland Sec./OGC, GS 14-15, Wash., DC, closes 3/12/25 (public).

Att’y-Advisor, Dep’t of Homeland Sec./OGC, GS 13-15, Wash., DC, closes 3/12/25 (public).

FOIA News: FOIA doesn’t apply to DOGE, notes DOJ

Trump Admin Argues DOGE Is Exempt From Records Requests in FOIA Lawsuit

Elon Musk promised "maximum transparency," but that apparently doesn't include Freedom of Information requests to DOGE.

By C.J. Ciaramella, Reason, Feb. 28, 2025

In response to a Freedom of Information Act (FOIA) lawsuit, the Trump administration is arguing that its much-hyped Department of Government Efficiency (DOGE) is exempt from public records requests.

Justice Department lawyers stated in a court filing Thursday that DOGE is no longer subject to FOIA requests after President Donald Trump issued an executive order in January moving DOGE, formerly U.S. Digital Services (USDS), out of the White House Office of Management and Budget (OMB). OMB is subject to the public record law, unlike most of the offices and agencies within the Executive Office of the President.

"After January 20, 2025, USDS moved out of OMB and became a free-standing component of [the Executive Office of the President] that reports to the White House Chief of Staff," the government's motion stated in a footnote. "As a result, USDS is not subject to FOIA.

Read more here.

FOIA News: Transportation Dep't posts annual report

The Department of Transportation has published its annual FOIA report for fiscal year 2024. Below is a summary of the key statistics:

• 18,345 requests received, a 7 percent increase from FY 2023 (17,136).

• 16,080 requests processed, a 2.2 percent decrease from FY 2023 (16,458).

• 8,048 backlogged requests, a 36 percent increase from the end of FY 2023 (5,913).

• 166 appeals received, more than twice as many as it received in FY 2023 (78).

• 156 appeals processed, exactly twice as many as it processed in FY 2023 (78).

• 226 backlogged appeals, three fewer (229) from the end of FY 2023.

• Average responses time for processed perfected requests was 76.1 days for simple requests and 268.5 days for complex requests. NHTSA had the slowest response times of all components: 127.5 average days for simple requests and 552.1 average days for complex requests.

• $17.2 million in total processing and litigation-related costs, a 7.5 percent decrease from the $18.6 million in total costs incurred in FY 2023.

FOIA News: Defense Dep't posts annual report

The Department of Defense has published its annual FOIA report for fiscal year 2024. Below is a summary of the key statistics:

• 61,858 requests received, a 2.9 percent increase from FY 2023 (60,109).

• 57,662 requests processed, a 3.4 percent increase from FY 2023 (55,731).

• 21,436 backlogged requests, a 7.8 percent increase from the end of FY 2023 (19,882).

• 1105 appeals received, only three fewer than it received in FY 2023 (1108).

• 1105 appeals processed, a 12.8 percent decrease from FY 2023 (1247)

• 607 backlogged appeals, down 17.5 percent from the end of FY 2023 (736)

• Average responses time for processed perfected requests was 30.3 days for simple requests and 199.7 days for complex requests.

• $104.9 million in total processing and litigation-related costs, a 16.5 percent increase from the $90 million in total costs incurred in FY 2023.

FOIA News: Annual reports, where art ye?

Five agencies that typically receive the most FOIA requests annually, DHS, DOJ, DOD, NARA, and Veteran Affairs, have not yet published their annual reports due on March 1st. Additionally, the government’s central website for FOIA has not been update to include annual date for fiscal year 2024. We’ll keep you updated.

Court opinion issued Feb. 21, 2025

Hvistendahi v. DOJ (S.D.N.Y.) -- in case concerning an Office of Inspector General’s report about personal misconduct of FBI employees overseas, concluding that: (1) FBI established that dates and locations of the misconduct, as well as the direct quotations from OIG interviews, implicated personal privacy interests under Exemption 7(C), but those interests were outweighed by a “significant public interest” in disclosure; and (2) FBI properly relied on Exemption 7(C) to withhold the “unsubstantiated allegations against FBI officials and the reasons why OIG found them unsubstantiated.”

Summaries of all published opinions issued in 2025 are available here. Earlier opinions are available for 2024 and from 2015 to 2023.

FOIA News: CFO tech committee issues white paper

New White Paper on FOIA Data from Chief FOIA Officer Council Technology Committee’s Working Group

BY DOJ/OIP, FOIA Post, Feb. 24, 2025

A white paper issued by the Chief FOIA Officer (CFO) Council Technology Committee’s Data Working Group (DWG) has been posted to FOIA.gov.  The white paper summarizes the DWG’s work, which included interviews with other FOIA programs to gain a better understanding of how they utilize data in managing their operations and how FOIA programs respond to FOIA requests for data.

Read more here.

Jobs, jobs, jobs: Weekly report Feb. 24, 2025

The 90-day hiring freeze imposed by the White House on January 20, 2025, has significantly reduced the number of fillable government FOIA positions. Below are vacancies that appear to be exempt from the freeze.

Gov’t Info. Specialist, Dep’t of the Army, GS 9, Fort Jackson, SC, closes 2/26/25 (non-public)

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Fort Belvoir, closes 2/28/25 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GS 11, Fort Belvoir, closes 2/28/25 (non-public).

Att’y-Advisor, Dep’t of Homeland Sec./USCG, GS 13-14, Wash., DC, closes 3/3/25 (public).

Att’y-Advisor, Dep’t of Homeland Sec./OGC, GS 14-15, Wash., DC, closes 3/12/25 (public).

Att’y-Advisor, Dep’t of Homeland Sec./OGC, GS 13-15, Wash., DC, closes 3/12/25 (public).

FOIA News: HHS posts FY 2024 FOIA report

The U.S. Department of Health and Human Services has published its annual FOIA report for fiscal year 2024. Below are the significant metrics.

• 51,800 requests received, up 11.3 percent from 46,530 requests received in FY 2023.

• 49,271 requests processed, up 4.5 percent from 47,038 requests processed in FY 2023

• 12,685 requests in backlogged status, a 12.6 percent increase from 11,256 backlogged requests in FY 2023.

• 730 appeals in backlogged status, up 14 percent from640 backlogged appeals in FY 2023.

• $66.1 million in processing costs and $14.1 million for litigation ($80.2 million in total), more than double the $39.7 million in total costs incurred in FY 2023.

  $752k fees collected for processing requests.