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 News: Racket News Story on HHS Layoffs Quotes Allan Blutstein

Timeline: Cutbacks at HHS

By Greg Collard and James Rushmore, Racket News, Apr. 4, 2025

We want to give attention to FOIA staff cuts at HHS, as public records are a key component of our Racket Library.

Staff who fulfill public records requests took a huge hit in RFK Jr’s reorganization.

…

In any case, expect a much longer wait for any public records, says attorney Allan Blutstein of FOIA Advisor:

The records that are of public interest will remain undisclosed, and for longer periods. I suspect what staff remains is likely to be focused on litigation because it’s much easier to ignore a FOIA requester than a plaintiff in court. So unless your request is in litigation, you’ll be likely further back in the processing que and the delays will just intensify.

Read more.

FOIA News: Top House Dem seeks details on FOIA staffing amid agency firings

Top House Dem seeks details on FOIA staffing amid agency firings

By Justin Doubleday, Federal News Network, Mar. 20, 2025

A top House Democrat is pressing agencies for details on their Freedom of Information Act operations, citing FOIA staff firings impacting at least one agency under the Trump administration.  

In letters to 24 agencies today, Committee on Oversight and Government Reform Ranking Member Gerry Connolly (D-Va.) requests their plans for complying with FOIA. “Preserving your agency’s ability to respond to FOIA requests is a critical tool to provide the American people the transparency to which they are entitled,” Connolly wrote.

Read more.

FOIA News: Top House Democrats are seeking DOGE details under the Freedom of Information Act

Top House Democrats are seeking DOGE details under the Freedom of Information Act

By Lisa Mascaro, Associated Press, Mar. 18, 2025

Top Democrats on the House Judiciary and House Oversight committees have filed a lengthy Freedom of Information Act request questioning whether the Trump administration’s DOGE Service is operating “outside the bounds of federal law,” The Associated Press has learned.

Rep. Jamie Raskin of Maryland and Rep. Gerald Connolly of Virginia are seeking detailed information about the authority of the Department of Government Efficiency Service, including billionaire Trump adviser Elon Musk and some 40 other people, to carry out firings of federal workers and dismantling of federal agencies.

Read more.

FOIA Advisor's Allan Blutstein Interviewed by Racket News

Do Your Own Research: How to File Your Own Freedom of Information Requests

By Greg Collard, Racket News, Mar. 18, 2024

Public records are a key part of Racket’s library project—not just for the stories we cover, but as a resource to help you access the records that matter to you. I figured talking to a guy with “FOIA” as his vanity license plate would be a good place to start.

Allan Blutstein helps run a site called FOIA Advisor. It’s a labor of love among Blutstein and two others that he jokes is funded by his credit card. All three are involved in conservative politics for their day jobs, but FOIA Advisor is for anyone. It has a roundup of FOIA news, FOIA-related court cases, links to searchable FOIA regulations for federal agencies, samples of FOIA appeal letters by conservative and liberal groups, FOIA letter-generator sites, and electronic reading rooms where you can access records and see what other people are requesting.

Read the whole interview.

FOIA News: New email language may shield more USAID communications from public view

New email language may shield more USAID communications from public view

By Rebecca Heilweil, FedScoop, Feb. 20, 2025

Emails sent by employees of what remains of USAID now come with new language that could be meant to keep agency communications from public view. 

Two sources at the international development agency confirmed to FedScoop that emails sent from agency staff now contain the language “Sensitive But Unclassified.” The designation is used by federal agencies to denote a heightened responsibility to safeguard information. 

Read more here.

FOIA News: MuckRock asks federal agencies about their efforts to use AI in FOIA

We asked federal agencies about their efforts to use AI in FOIA

By Dillon Bergin, MuckRock, Jan. 8, 2025

We want to know more about how federal agencies are using AI initiatives in the FOIA process, described in their yearly Chief FOIA Officer Reports. We’re asking them for the docs.

We’ve filed requests to several agencies for documents related to AI testing in their FOIA offices, including contracts with third party vendors and assessments or audits of the programs so far. To follow along as agencies respond, you can check out our AI in FOIA page, home to all the requests, articles and updates.

Read more here.

FOIA News: Sierra Club boss vows ‘massive FOIA operation’

Sierra Club boss vows ‘massive FOIA operation’

By Robin Bravender, E&E News, Nov. 7, 2024

The Sierra Club plans to launch a “massive FOIA operation” to keep tabs on the incoming Trump administration, the green group’s leader said Thursday.

The club will be watching President-elect Donald Trump’s incoming appointees “very, very closely,” Executive Director Ben Jealous told reporters Thursday. “You can anticipate that we will have a massive FOIA operation up and running, and we will go after them very aggressively.”

Read more here.

FOIA News: Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

By Randall Chase, Associated Press, Aug. 6, 2024

A Delaware judge has refused to vacate a ruling denying a conservative media outlet and an activist group access to records related to President Joe Biden’s gift of his Senate papers to the University of Delaware.

Judicial Watch and the Daily Caller News Foundation sought to set aside a 2022 court ruling and reopen a FOIA lawsuit following the release of Special Counsel Robert Hur’s report about Biden’s handling of classified documents.

Read more here.

FOIA News: Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

By Nika Schoonover, Courthouse News Service, Aug. 5, 2024

A report produced by Congress on the CIA’s post-9/11 detention and interrogation program is not covered by the federal freedom of information law, a Second Circuit panel found Monday.

In the aftermath of the terrorist attacks of September 11, 2001, the Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the CIA. The committee then transmitted the report to various agencies covered under the federal Freedom of Information Act.

Read more here.