FOIA News: Registration open for next FOIA Advisory Committee meeting

Registration is now open for the next federal FOIA Advisory Committee meeting, which will be held virtually on Thursday, March 6, 2025, at 10am ET. Here are the links to the meeting materials, including registration and a livestream.

FOIA News: Oral argument in the D.C. Circuit

As we noted in our most recent monthly roundup, the U.S. Court of Appeals for the District of Columbia is scheduled to hear argument in a FOIA-related case, Am. First Legal Found. v. Dellinger, 24-5168, on Wednesday, February 12, 2025. The primary issue in dispute is whether 5 U.S.C. § 1216 compels the Office of Special Counsel to investigate any allegation of an arbitrary and capricious withholding of records under FOIA. Although subsection (a)(3) states that OSC “shall” investigate any such allegation, subsection (c) provides that OSC “may investigate and seek corrective action.”

The district court ruled in favor of the government, holding that the statute at issue authorized but did not require OSC to investigate allegations of arbitrary and capricious FOIA withholdings.

Follow the argument live here.

Court opinion issued Feb. 10, 2025

Leopold v. FBI. (D.D.C.) — in a case concerning access to the FBI’s Mar-a-Lago investigative file, rejecting the agency’s reliance on Exemption 7(A) and its Glomar response, in large part because there is no longer any pending law enforcement proceeding (i.e., charges against President Trump have been dismissed), and future proceedings are not reasonably anticipated as President Trump is likely immune from prosecution; noting further that the agency failed to support its position with any suggestion of alleged criminal conduct by President Trump after the 2020 presidential election.

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

FOIA News: More on DOGE and the FOIA

Trump’s Declaration Allows Musk’s Efficiency Team to Skirt Open Records Laws

Government watchdog groups say they will challenge the Trump administration’s decision to put the initiative under the Presidential Records Act, which shields its work from public disclosure.

By Minho Kim, NY Times, Feb. 10, 2025

In October, Elon Musk preached the message of government transparency during a presidential campaign rally he held in Pennsylvania in support of Donald J. Trump, suggesting that nearly all government records should be made public.

“There should be no need for FOIA requests,” Mr. Musk reiterated on social media, referring to the law that gives the public the right to obtain copies of federal agency records: the Freedom of Information Act. “All government data should be default public for maximum transparency.”

But Mr. Musk's cost-cutting initiative, better known as the Department of Government Efficiency, or DOGE, appears to be heading in the opposite direction.

The White House has designated Mr. Musk’s office, United States DOGE Service, as an entity insulated from public records requests or most judicial intervention until at least 2034, by declaring the documents it produces and receives presidential records.

Read more here.

For an in-depth discussion of the relevant case law, see David Cohen, Note, FOIA in the Executive Office of the President, 21 N.Y.U. J. Legis. & Pub. Policy 203 (2018).

Court opinions issued Feb. 6, 2025

Gannett Satellite Info. Network, LLC v. DOJ (D.D.C.) — on renewed motion for summary judgment in a case concerning access to “individual-level data about people who died while in custody of local jails and state and federal prisons between 2010 and 2019,” ruling in favor of the plaintiff on the issues of search adequacy and the application of exemptions; but granting in part the agency’s motion for partial reconsideration, thus excusing disclosure of certain records whose production was previously stayed and which would be covered by Exemption 3 and the “express confidentiality provision” of the Crime Control Act; notably, explaining the agency improperly limited its search by relying on a technical understanding of whether certain BOP data were “relevant” to the request, despite “being on notice about” what the plaintiff actually wanted and having failed to correct information online (and in the case record) that helped perpetuate plaintiff’s (and the court’s) misunderstanding; emphasizing “[t]he circumstances here”—either “sloppiness and inaccuracy” or, “at worst, intentional obfuscation”—“certainly do not flatter defendant”; further holding that Exemption 7(C) did not apply because the Bureau of Justice Statistics “does not specialize in law enforcement” and the agency otherwise failed to offer any evidence linking the requested data to a law-enforcement investigation; rejecting also the use of Exemption 6 because either there is no substantial privacy interest implicated or the public interest in disclosure is overriding.

Tran v. DOJ (D.D.C.) — in a case brought by a former FBI agent seeking records about his own “criminal investigation and prosecution,” granting in part and denying in part the government’s motion for summary judgment; holding that, while the FBI’s Glomar response was justified for certain records, the agency failed to meet its burden with respect to others about an “undercover informant” who had revealed himself to the public and whom the FBI had “officially acknowledged" as serving in such capacity in another lawsuit; directing the government to provide further explanation for an apparent discrepancy between its initial estimate of responsive pages and the number of pages actually produced; finally, rejecting the plaintiff’s arguments about agency “bad faith” as “baseless and without merit.”

Stevens v. DHS (N.D. Ill.) — rejecting, in large part, a requester’s search-adequacy challenge because she “failed to rebut the presumption of good faith” afforded to agency declarations and because the agency’s search methodology (such as limiting efforts to certain offices or databases) was otherwise reasonable; nevertheless concluding that one no-responsive-records search conducted by an ICE field office involved unreasonably limited keywords because two other field offices were able to locate records with “more expansive search terms”; requiring limited supplemental searches for one request where ICE failed to explain its search terms and omitted search terms for subparts of the request; holding the government properly withheld records under Exemption 4 because “private contractors submitted the commercial information . . . with an assurance of privacy,” and Exemption 5 and the deliberative-process privilege; ordering ICE to “re-process and re-evaluation its withholdings” of records not included in the parties’ agreed-upon initial “representative sampling”; finally, ordering ICE to reproduce an “unreadable . . . PDF of a spreadsheet” in native Excel format.

Burrus v. USDA (9th Cir.) (unpublished) -- affirming district court’s decision dismissing pro se plaintiff’s FOIA claim, because plaintiff’s “general request for documentation supporting the agency's employment actions included in a letter that described its purpose as protesting those actions did not constitute a FOIA request”; noting that plaintiff’s letter was not addressed to a FOIA office and failed to include the phrase ‘FOIA request” as required by agency regulations.

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 2/10/25

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 12, Stuttgart, Germany, closes 2/10/25 (non-public).

• Gov’t Info. Specialist, Dep’t of the Navy, GS 11, Patuxent River, MD, closes 2/10/25 (non-public).

• Gov’t Info Specialist, Dep’t pf Def./DLA, GS 9-12, multiple locations, closes 2/12/25 (non-public).

• Gov’t Info. Specialist, Dep’t of Homeland Sec./CBP, GS-13, location negotiable, closes 2/12/25 (internal only).

• Info. Release Specialist, Dep’t of the Army, GS 9-12, Quantico, VA, closes 2/13/25 (public).

FOIA News: Senate bill would extend FOIA to DOGE

Scholten introduces bill to open Musk and DOGE to FOIA provisions

By Jon King, Michigan Advance, Feb. 6, 2025

U.S. Rep. Hillary Scholten (D-Grand Rapids) on Thursday introduced legislation she says will provide accountability about the actions of billionaire Elon Musk and his Department of Government Efficiency, or DOGE.

According to a press release from Scholten’s office, the Consistent Legal Expectations and Access to Records (CLEAR) Act, clarifies that temporary organizations like DOGE are subject to the Freedom of Information Act (FOIA). 

“Given the breadth of power these organizations wield, they should be subject to the same standard of scrutiny and public information sharing that other agencies are beholden to,” stated the release. 

Read more here.

Court opinions issued Feb. 5, 2025

Ctr. for Immigration Studies v. USCIS (D.D.C.) — after in camera review, holding that USCIS properly withheld an internal policy memo concerning a “temporal tweak” to the Temporary Protected Status designation of Haiti under Exemption 5 and the deliberative-process privilege; describing the memo as a “recommendary proposal”; rejecting the requester’s “adoption” argument because the factual record did not suggest “an express choice to use a deliberative document as a source of agency guidance”; similarly rejecting the requester’s “working law” argument given the nature of the advisory memorandum at issue; concluding the agency satisfied the foreseeable-harm standard because “release would chill candid speech about sensitive issues of foreign policy.”

Energy & Policy Inst. v. Tenn. Valley Auth. (E.D. Tenn.) — ruling that plaintiff was ineligible for attorney’s fees and litigation costs totaling $150k, notwithstanding the agency’s release of previously withheld records after the litigation started; accepting TVA’s argument that a business submitter, not the agency, changed its position on the confidential nature of certain records that had been withheld under Exemption 4; rejecting plaintiff’s argument that the “buck stops with TVA” with respect to withholdings, noting that the “statute expressly envisions cooperation of non-agency parties.”

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

FOIA News: This and that

• The D.C. Circuit entertained arguments yesterday in Hettena v. CIA, No. 24-5110, a case in which appellant disputes the agency’s redactions to a 2005 OIG report about the death of a suspected Iraqi terrorist at Abu Ghraib prison. Audio is available here.

• In a February 4th article, the Freedom of the Press Foundation raises concerns about the treatment of USAID records if that agency is dissolved, including the status of pending FOIA requests.

• A client alert from law firm Gibson Dunn yesterday includes transparency requirements of the Department of Government Efficiency (DOGE). Mother Jones opined last week that DOGE was established within the Executive Office of the President instead of as an advisory group in order to dodge transparency.

• The FBI has posted additional investigatory records about D.B. Cooper.

Monthly Roundup: January 2025

Below is a summary of the notable FOIA court decisions and news from last month, as well as a look ahead to FOIA events in February.

Court decisions

We identified and posted 12 decisions in the month of January. Of note, the U.S. Court of Appeals for the District of Columbia Circuit held in Human Rights Def. Ctr v. U.S. Park Police that a district court had no inherent judicial authority to prevent a FOIA requester from disclosing, disseminating, or making use of Exemption 6-protected information that the agency inadvertently released. In reaching its decision, the D.C. Circuit acknowledged but gave no weight to a 2022 Tenth Circuit ruling that affirmed a district court’s “clawback” order. The D.C. Circuit expressed no opinion as to whether a court may claw back inadvertently released documents that are “subject to any independent legal prohibition on disclosure such as applies to classified documents”; it also declined to consider appellant’s argument that the district court’s order violated the First Amendment.

In a less significant (but arguably more entertaining) decision, a court in the Northern District of Illinois rebuked the U.S. Immigration for Customs Enforcement for redacting information from a publicly filed document readily available on a public docket. The court pulled no punches in its opinion, stating that the redactions were “egregious,” “ludicrous” “preposterous,” and a “blatant misuse of exemptions” that “defies comprehension” and “screams of bad faith.” See Stevens v. HHS (N.D. Ill.).

Top news

• FOIA reading rooms went offline at several agencies, including OSTP, OMB, CEQ, following President Trump’s inauguration on January 20, 2025.

• A White House-ordered hiring freeze has significantly reduced the number of available government FOIA jobs.

• The sponsors of Sunshine Week announced an in-person FOIA conference on March 19-20.

• DOJ/OIP posted two ”updated” sections of the FOIA Guide: Exemption 4 and Reverse FOIA.

February calendar

Feb. 4: D.C. Circuit hears argument in Hettena v. CIA, No. 24-5110, a case in which appellant disputes the agency’s redactions to a 2005 OIG report about the death of a suspected Iraqi terrorist at Abu Ghraib prison.

Feb. 5: DOJ/OIP’s virtual Advanced Freedom of Information Act Training for government employees and contractors.

Feb. 7: Deadline for agencies receiving 50 requests or less in fiscal year 2023 that choose to report to submit their Chief FOIA Officer Report to OIP.

Feb. 12: D.C. Circuit hears argument in Am. First Legal Found. v. Dellinger, 24-5168, which raises the issue of whether 5 U.S.C. § 1216(c) compels the Office of Special Counsel to investigate any allegation of an arbitrary and capricious withholding of records under FOIA.