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).
