FOIA News: Another DOGE FOIA lawsuit enters the mix

DOGE Keeps Trying to Dodge the Freedom of Information Act. So We’re Suing.

Shawn Musgrave, The Intercept, Mar. 24, 2025

The Intercept filed a lawsuit on Monday to force the Trump administration to comply with federal transparency law when it comes to the so-called Department of Government Efficiency.

The lawsuit, filed in Manhattan federal court under the Freedom of Information Act, concerns multiple FOIA requests for DOGE records. At first, DOGE simply ignored these requests while Elon Musk’s crew ransacked federal agencies and accessed sensitive data systems.

Then last Tuesday, DOGE sent a brief email to The Intercept claiming it was not subject to FOIA at all because of the way President Donald Trump established DOGE by executive order in January. “We therefore decline your request,” reads the unsigned email.

So we’re suing.

The Intercept’s lawsuit covers five different FOIA requests sent to DOGE since early March.

Read the rest here.

[RPM Comment: The Intercept’s complaint can be found here. Notably, while all the prominent litigation related to DOGE and FOIA to date has been brought in the District of the District of Columbia, this new lawsuit has been filed in the Southern District of New York. Keep an eye out for possible divergent rulings when these cases make their way up to the D.C. and Second Circuits!]

Court opinions issued Mar. 19-21, 2025

Mar. 19, 2025

Citizens for Responsibility & Ethics in Wash. v. U.S. DOGE Serv. (D.D.C.) — denying the government’s motion for reconsideration of a prior preliminary-injunction ruling that held U.S. DOGE Service was likely an “agency” for FOIA purposes, in large part, because the government’s “arguments could all have been raised during the last round of briefing” and “none of them provides a basis for reconsideration”; acknowledging, nonetheless, that “it would be preferable . . . to review the question of whether [DOGE] is subject to the FOIA on the merits based on a more complete record,” and therefore inviting the requester to file a motion for limited discovery under Federal Rule of Civil Procedure 56(d); expressing doubt that the irreparable-harm analysis underlying the Court’s preliminary injunction ruling was erroneous; continuing to point to public statements by President Trump and Elon Musk, as well as press reports, that cast doubt on the government’s various factual claims. [RPM: FOIA Advisor previously reported on this decision when it first issued.]

U.S. Right to Know v. Dep’t of Def. (N.D. Cal.) — granting in party and denying in part the plaintiff’s motion for attorney’s fees; noting the government did “not contest that Plaintiff is eligible to receive an award of fees and costs”; on the question of entitlement, concluding that: (1) the public interest favors the award, as the records, which pertain to COVID-19, could help reveal “‘possible politicization of agency decisionmaking’”; (2) the plaintiff, as a non-profit organization, had no commercial interest in the responsive records; and (3) the agency acted unreasonably by failing to comply with statutory deadlines, or to communicate with the plaintiff “for over two years until after suit was commenced,” and by significantly over-redacting the responsive records in the first instance without any “colorable basis under the law”; ultimately awarding “$74,312.88 in attorneys fees and $688.96 in costs,” or roughly $10,000 less than what plaintiff asked for, after rejecting recovery for: (1) certain administrative tasks, like fixing access problems to USAfx or other “purely clerical tasks,” (2) internal attorney communications that were vaguely described in the ’ fee motion and supporting declarations, (3) pro hac vice fees, and (4) costs related to “expert declarations.”

Mar. 20, 2025

Simmons v. Dep’t of State (D.D.C.) — denying an aggrieved, former State Department employee’s motion for attorney fees in light of her failure to demonstrate under the “catalyst theory” how she “substantially prevailed,” and was therefore eligible for fee recovery; specifically, noting the requester failed to show “this litigation caused [the agency] to comply with her FOIA and Privacy Act requests”; noting also the agency had “immediately started processing records and made several pre-litigation productions”; relatedly concluding the requester “fail[ed] to rebuff evidence that [any] delayed ‘disclosure result[ed] not from the suit but from delayed administrative processing.’”

Leopold v. Dep’t of Justice (D.D.C.) — on remand from the D.C. Circuit for a “third round of summary judgment,” denying the parties’ cross-motions for summary judgment regarding withholding under Exemption 8 of a redacted version of an independent monitor’s report detailing HSBC’s compliance with a deferred prosecution agreement, specifically with respect to the justification for continued non-disclosure under the foreseeable-harm standard; ruling that, while “Exemption 8’s broader protections . . . related to financial institutions apply,” in camera review of the monitor report is needed to resolve the case; noting, inter alia, that another judge “found not harm in disclosing a redacted version,” and that DOJ’s own filings suggest “portions of the . . . [r]eport might be . . . released with minimal risk of harm.”

Crandell v. Nat’l Archives & Records Admin. (4th Cir.) (unpublished) — affirming dismissal of FOIA lawsuit, where the requester failed to exhaust administrative remedies and failed also to demonstrate that the records he had requested “still existed”; modifying the district court’s ruling, however, by ordering the dismissal to be without prejudice.

Mar. 21, 2025

Wiggins v. Dep’t of Justice (D.D.C.) — granting in part and denying in part the government’s motion for summary judgment; holding that the agency conducted an adequate search where it explained the custodial locations searched and the search terms utilized; noting that plaintiff proffered no “evidence” to support its “assertion of missing records”; holding also that the agency failed to offer adequate explanation for its use of Exemption 5 to withhold “undated and unsigned proposed amended jury instructions,” as well as other “unsigned” and either “undated” or “partially dated” litigation documents, including e-mail records between DOJ personnel “regarding the prosecution of plaintiff and the co-defendant’s criminal cases”; explaining that “EOUSA’s cryptic description” for the various “document[s] or categor[ies] of documents” does not establish their deliberative nature; noting also the agency’s “generic assertions of harm to internal discussions . . . parroted throughout the Vaugh index”; with respect to Exemption 7(C), holding that the agency properly redacted “the names and other identifying information of third-party individuals, including Eastern District employees, third-party witnesses, and co-defendants”; finally, concluding that “EOUSA has not properly justified withholding fifty-one sealed pages,” as it “offered no evidence”; directing the government to “supplement the record” and, if appropriate after re-processing, to “move again for dispositive relief.”

Ctr. for Medical Progress v. Dep’t of Health & Human Servs. (D.D.C.) — granting the agency’s motion for summary judgment and denying the plaintiff’s cross-motion; holding, firstly, that the agency “properly determined the scope of the plaintiff’s FOIA request,” which sought a “specific set of documents” about “grant applications,” especially in light of the plaintiff’s oral and written clarifications upon request from the agency, as well as its agreement to narrow its request post-submission; holding further that the agency conducted an adequate search; noting that “[b]eyond the contract records” that were properly beyond the scope of the request, “the plaintiff provide[d] no further basis to challenge the good faith basis” afforded to the agency’s supporting declarations.

Am. Property Locators, Inc. v. Customs & Border Prot. (D.D.C.) — in a case involving a commercial-use FOIA request for records about stale checks from CPB, granting the agency’s motion to dismiss and approving its inclusion in a fee estimate of expenses related to carrying out the “business submitter process”; explaining that CBP maintains a special process for notifying “submitters” of “commercial information” so that they can object to disclosure of their information under the FOIA, and that the agency has treated “Limited Payability (stale dated check) records” as triggering this “process”; declining to adopt the government’s recommendation to either apply arbitrary-and-capricious review or Auer deference in lieu of the FOIA’s default de novo review standard; holding that CPB provided a “‘reasonable, non-obstructionist explanation’ . . . for applying the business submitter process” based on its published regulations, and that it appropriately assumed responsive records would “encompass emails between CBP and business submitters regarding the original commercial transaction, the status of payee checks, the occurrence of novel financial transactions, and/or bank account information”; rejecting plaintiff’s argument that any possible exceptions to the business-submitter process applied; noting the “process itself is reasonable” as it “‘give[s] effect to Exemption 4,” among other things; finding no basis in the record to doubt the actual fee estimate of $738; finally, concluding that the requester failed to exhaust by “pay[ing] the required fees before suing the challenge the substance of [its] FOIA request.”

Rhodes v. Internal Revenue Serv. (N.D. Ala.) — granting the agency’s motion to dismiss for failure to exhaust administrative remedies; rejecting the requester’s apparent argument, based on the language of his complaint, that “there were no administrative remedies to be exhausted”; rejecting also the requester’s suggestion that the IRS’s determination letter was “insufficient to trigger a duty to exhaust his claims” because it “did not communicate the scope of the documents it withheld” by including a “privilege log.”

Jackson v. Internal Revenue Serv. (N.D. Ala.) — in an almost word-for-word, identical opinion to that published above in Rhodes, granting the agency’s motion to dismiss for failure to exhaust administrative remedies.

Cahill v. Dep’t of Commerce (D.D.C.) — granting the agency’s motion to dismiss for mootness where a pro se requester admitted the agency “finally complied” with his request prior to filing suit; denying also the requester’s motion for costs because the “Department turned over the video [at issue] without a court order, written agreement, or consent decree,” the record was “outside the scope of [the requester’s] FOIA request,” and “the Department would have been able to meritoriously defend its denial of . . . [the] request by arguing that [the requester] had failed to exhaust his administrative remedies.”

Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice (D.D.C.) — in a case seeking access to records related to the “now-closed criminal investigation of former Congressman Matt Gaetz,” in which the requester also pleaded policy-and-practice claims related to the use of Glomar responses and categorical withholdings under Exemptions 6 and 7(C), granting in party and denying in part the government’s motion to dismiss; with respect to allegations about an unlawful Glomar-response policy, holding that CREW can appropriately “aggregate” evidence about the behavior of multiple “components within a larger agency” to sustain its claim; noting, in that respect, how “CREW has identified six instances of potentially violative conduct across four DOJ components,” that this “is numerically sufficient to show a pattern for purposes of a motion to dismiss,” that there is sufficient relation between the examples to suggest a “consistent policy,” and that CREW has otherwise “plead sufficient facts to suggest” the ostensible policy is unlawful; holding also, by contrast, that CREW’s policy-or-practice claim about Exemption 6/7(C) responses must be dismissed because DOJ’s “responses to CREW’s three requests were not uniform,” and therefore undercut any theory that they did not reflect “case-by-case analysis.”

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

FOIA News: The CREW-DOGE FOIA saga continues with the opening of summary judgment proceedings

The U.S. DOGE Service has filed its motion for summary judgment in CREW v. DOGE, arguing that it is not an “agency” as defined by the Freedom of Information Act. The government’s brief can be found here.

FOIA News: Judge Cooper rejects DOGE's motion for reconsideration in FOIA case

Following what can only be described as an extraordinarily speedy round of briefing, Judge Christopher Cooper has denied DOGE’s motion for reconsideration in CREW v. DOGE, No. 25-0511 (D.D.C.):

“Because the government’s arguments could all have been raised during the last round of briefing”—that is, during the court’s consideration of CREW’s request for preliminary injunctive relief to compel expedited processing—“none of them provides a basis for reconsideration.”

Although Judge Cooper denied the government’s motion for reconsideration, he nonetheless decided to extend the “deadlines set forth in its prior order”—specifically, to March 27th to provide an estimate of the number of responsive records at issue, and to April 3rd to propose a production schedule—”to ensure that USDS can provide meaningful responses to CREW’s inquiries.” This appears to have been done to facilitate DOGE’s imminently expected motion for summary judgment (or an appeal to the D.C. Circuit of the preliminary injunction, which so far has gone unnoticed). As the court explained, “it would be preferable . . . to review the question of whether USDS is subject to the FOIA on the merits based on a more complete record.” For this reason, the court has seemingly invited CREW to filed a motion under Federal Rule of Civil Procedure 56(d) to conduct limited discovery.

Notably, the court appeared unimpressed by the government’s creative arguments about the supposedly erroneous irreparable harm analysis underlying its preliminary injunction, and continued to insist on the necessity of “Congress and the public . . . hav[ing] a hope of receiving the requested information while it remains timely.” The court was moreover incredulous that DOGE Administrator Gleason’s declaration could not have previously been offered into evidence, thus rendering it an inapt basis for reconsideration of last week’s PI order. “[T]he declaration appears to be subject to factual disputes that may provide a basis for CREW to seek discovery,” surmised Judge Cooper. For example, the court doubted Ms. Gleason’s averment that “Elon Must does not work at USDS,” given public representations by President Trump and Musk himself to the contrary. Judge Cooper did not address two other—perhaps, central—arguments advanced by the government, namely, his alleged misapprehension of the structure of DOGE—and the distinction between USDS within the White House, on the one hand, and agency “DOGE Teams,” on the other—and his heavy (and now, continued) reliance on press reports rather than sworn evidence.

The full opinion, which also addresses other arguments advanced by DOGE, can be found here.

FOIA Advisor’s previous reports on this case are here, here, and here.

FOIA News: A quick retort . . . DOGE's reply to CREW filed

The government filed its reply in support of its motion for reconsideration in CREW v. DOGE shortly after the requester lodged its opposition earlier today. The court has not announced whether there will be a hearing, or if it will rule on the papers alone.

The DOGE reply is short, totaling only four pages. The government rejects CREW’s characterization of DOGE’s supposed “litigation strategy,” namely, as an effort to avoid the “agency” merits question because it expected CREW to lose on its irreparable harm theory. In so doing, the government tries to distinguish two types of requested relief: (1) expedited processing by a date certain, which it maintains was what CREW sought in its preliminary injunction motion, and (2) expedited processing in the abstract. “If there was no irreparable harm justifying a preliminary injunction by March 10 (which this Court correct found there was not), there was no basis for CREW’s motion. No plausible theory of party presentation or fair notice required USDS to address whether it is an agency[.]”

The government reiterates, too, that the district court improperly relied “significantly” on “media reports” and failed to “meaningfully address the multiple Executive Orders and presidential memorandum [sic] that delineate USDS’s limited and purely advisory responsibilities as a non-statutory entity[.]” One such example, DOGE maintains, was the court’s focus on the word “implement,” which it considers a “thin reed” to support Judge Cooper’s decision.

In closing, DOGE advised it will file a motion for summary judgment today, March 19th. Although there is, again, no timeline for the court to rule on reconsideration, the government will undoubtedly expect that request to be considered effectively on an emergency basis. DOGE’s proposed summary briefing schedule would end the day before Judge Cooper’s deadline for a production schedule proposal. If action isn’t taken in the government’s favor before that deadline, an appeal to the D.C. Circuit seems quite likely.

Court opinions issued Mar. 14, 2025

Finders Keepers USA, LLC v. Dep’t of Justice (D.D.C.) — on renewed cross-motions for summary judgment, granting in part and denying in part each party’s motion; on the question of search adequacy, (1) finding that the FBI’s chosen search terms were “reasonably calculated to uncover all relevant documents,” (2) rejecting the agency’s cut-off date (i.e., the date of its initial search) as unreasonable because it “should have looked for records through the date of its second search,” and (3) again identifying deficiencies in the FBI’s averments that it searched all files likely to contain responsive material, given the facts of the case and prior proceedings; similarly ruling that the search for certain DVD videos was reasonable; deciding that “a genuine dispute of fact” exists as to whether the FBI was required to produce all versions of a particular operational plan; and, finally, rejecting once again the FBI’s invocation of Exemption 7(E) for failure to identify the risks of circumvention of the law, and for failure to satisfy the foreseeable-harm standard; ordering in camera review and further proceedings.

Francis v. Internal Revenue Serv. (D.D.C.) — granting the agency’s combined motions to dismiss and for summary judgment; dismissing as moot several counts in the complaint because the IRS located responsive records and released them in full, and there was no further challenge to the adequacy of the relevant searches; concluding that, with respect to another count, the requester failed to exhaust administrative remedies by admittedly failing to file an appeal before initiating the lawsuit; rejecting another two counts as pertaining to improper or invalid FOIA requests that “sought information and not records”; and, finally, ruling the IRS conducted an adequate search for all remaining counts, and rejecting the requester’s arguments that the agency “acted in bad faith through its false and misleading representations.”

Tsai v. United States (D.D.C.) — in relevant part, granting the IRS’s motion for summary judgment and holding that the agency conducted an adequate search; noting an apparent “gap between what [the requester] had actually requested and what he . . . intended to request,” but accepting the agency’s arguments that post-submission modification or enlargement of the scope of the request was improper given its “four-corners”; declining to strike the agency’s supporting declaration for lack of personal knowledge because, “[i]n the FOIA context, ‘declarants are not required to have personal knowledge of the search itself, but rather ‘personal knowledge of the procedures used in handling [a FOIA] request and familiarity with the documents in question.’”

White v. Dep’t of Agric. (E.D. Okla.) — denying the agency’s motion for summary judgment and rejecting the adequacy of its search for records about the Rural Development Division’s rental assistance program; explaining that, while the agency’s supporting declaration “indicates that all the records in USDA possession have been produced, it contains no averments pertaining to the agency’s search” methodology, including descriptions of search terms and the types of searches actually performed.

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

FOIA News: Wired dropping paywall for FOIA stories

Wired is dropping paywalls for FOIA-based reporting. Others should follow.

Katie Drummond, Freedom of the Press Found., Mar. 18, 2025

The news business isn’t just any business — it serves a vital role in our democracy, recognized by the First Amendment. But media outlets can’t serve that role if they’re bankrupt. And as a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

That experience is particularly frustrating for readers who are unable to access the groundbreaking investigative reports outlets like Wired magazine have been publishing, particularly over the first couple months of the Trump administration. Fortunately, Wired has a solution — it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act.

This approach makes a lot of sense from the standpoint of civil duty. They’re called public records for a reason, after all. And access to public documents is more important than ever at this moment, with government websites and records disappearing, Elon Musk’s Department of Government Efficiency doing its best to operate outside the public’s view, and the National Archives in disarray.

But some may argue that, from a business standpoint, not charging for stories primarily relying on public records automatically means fewer subscriptions and therefore less revenue. We disagree. Sure, the FOIA process is time- and labor-intensive. Reporters face stonewalling, baseless denials, lengthy appeals processes, and countless other obstacles and delays. Investigative reports based on public records are among the most expensive stories to produce and share with the public.

Read more here.

FOIA News: The CREW-DOGE FOIA fight continues

Today, Citizens for Responsibility & Ethics in Washington (“CREW”) filed its opposition to the government’s motion for reconsideration in a case where Judge Christopher Cooper has concluded that President Trump’s DOGE is likely an “agency,” as defined by the Freedom of Information Act (“FOIA”).

CREW’s argues, principally, that DOGE fails to identify any “intervening change of controlling law, new evidence, or need to correct a manifest injustice,” such as would justify reconsideration. Instead, “[i]t simply wants a do-over” to provide evidence and argument that should have already been raised during briefing CREW’s request for preliminary injunctive relief—that is, expedited processing of its FOIA request. On CREW’s view, the district court’s consideration of DOGE’s supposed agency status was entirely correct, procedurally speaking, and any attempt to relitigate the “agency” question now has been waived. As CREW’s attorneys put it: “DOGE’s problem is not that it was not aware of or failed to appreciate that FOIA’s applicability to it was in dispute; its problem is that it recognized and raised the issue but chose not to make an essential argument.”

As for the proffered declaration of DOGE Administrator Amy Gleason, CREW insists this new factual evidence is similarly improper ground for reconsideration, and hardly establishes “extraordinary circumstances” that would warrant disturbing the district court’s PI order: “Nothing in Ms. Gleason’s declaration is new in any sense,” notwithstanding questions about her availability to have offered such averments during the previous round of briefing, and instead the declaration “raises more questions than it answers.”

CREW also argues that the government’s attempt to seek a stay pending potential appeal is unwarranted and “falls woefully short of its burden.”

Finally, CREW asks the court, if it decides to grant reconsideration, to order expedited discovery into DOGE’s structure, authority, and operations, so as to avoid a new judgment based solely on “Defendants’ one-sided evidentiary presentation.” Limited discovery into the functions of EOP components is not unprecedented and has indeed been ordered in the past in other cases involving entities such as the Office of Administration, the Office of Homeland Security, and the National Security Council. It seems that CREW anticipates any successful motion for reconsideration to be followed by summary judgment briefing on DOGE’s disputed “agency” status.

The government, for its part, could file a reply brief—although it is possible the court will act on the motion without waiting for such a filing. If the motion for reconsideration is ultimately denied, it is possible—and perhaps even very likely—that DOGE will notice an appeal to the D.C. Circuit. As always, FOIA Advisor will continue to monitor and report on this important and interesting case.

FOIA News: ICYMI: DOJ-OIP 2024 Litigation and Compliance Report

2024 FOIA Litigation and Compliance Report Now Available

DOJ-OIP, FOIA Post, Mar. 18, 2025

Earlier this month, the Office of Information Policy (OIP) posted the Department’s 2024 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing OIP’s efforts to encourage agency compliance with the FOIA.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.  The report also contains lists of all FOIA litigation cases received and decided in the prior calendar year. 

This year's report highlights new guidance issued by OIP such as guidance for further improvement in light of OIP’s assessment of agency Chief FOIA Officer Reports and guidance on FOIA reporting requirements.  As detailed in the 2024 Report, OIP fielded over 750 direct one-on-one counseling calls via OIP’s FOIA Counselor Line.  OIP also hosted and facilitated numerous training programs and briefings on the FOIA and offered training to over 8,000 registered attendees.  The Report also summarizes the recently updated chapters to the DOJ Guide to the FOIA, searchable summaries of court decisions, and information about FOIA news and events published in the FOIA Post blog.

The 2024 Report also details OIP’s work in continuing to maintain and enhance the National FOIA Portal on FOIA.gov that allows the public to submit a request to any Federal agency from a single site.  In 2024, OIP enhanced the FOIA Search Tool on FOIA.gov that utilizes machine learning to help members of the public quickly and accurately locate commonly requested records.  OIP continues to refine the tool to best serve the public.  

Along with the narrative portion of the report, every year OIP compiles charts listing the FOIA litigation cases received and decided during the reporting year.  As in previous years, OIP again provides these charts in both PDF and open (CSV) formats.

OIP invites both agencies and the public to review its 2024 Litigation and Compliance Report to learn more about all our efforts to encourage agency compliance with the FOIA.  OIP looks forward to building on these efforts as we continue to work with agencies and the public to improve the overall administration of the FOIA in the years ahead.

Read the original post here.

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.