Federal courts issue hundreds of decisions in FOIA cases every year. Most do not break new legal ground or attract media attention. Before 2026 gets too far away, the legal eagles of FOIA Advisor — Allan Blutstein (AB) and Ryan Mulvey (RM) — look back at 2025 and discuss the decisions that stood out to them (in no particular order).
(1) Campaign for Accountability v. Dep’t of Justice, 155 F.4th 724 (D.C. Cir. 2025) — affirming in part and reversing in part the district court’s decision and holding that Office of Legal Counsel’s (OLC) opinions are not subject to FOIA’s “reading-room” disclosure requirements because they are not “final opinions made in the adjudication of cases” nor “statements of policy or interpretations adopted by the agency”; vacating the district court’s order requiring disclosure of OLC opinions resolving interagency disputes, reasoning that OLC opinions offer prospective legal advice, not binding orders or adjudications, and therefore do not resolve “cases” or have determinate consequences; noting that although OLC’s opinions are considered authoritative within the Executive Branch, they are not automatically adopted as the “working law” of client agencies unless an agency actually implements them as its own; in a concurring opinion, Judge Rao emphasized that appellant lacked standing because its claims were a generalized grievance without a particularized injury or concrete harm.
RM: Proactive disclosure of OLC opinions has always been one of the white whales of the requester community. And the decision here seems like the end of the line for a long fight brought by multiple organizations. I’m not surprised the Circuit reversed Judge Cobb, though I’m somewhat disappointed. I had to double-check to see whether her opinion in the district court had been one of our top cases of 2024. Alas, it wasn’t. My real interest for present purposes, though, is the Circuit’s discussion of standing. Informational standing outside the FOIA context was severely limited by the Supreme Court in TransUnion LLC v. Ramirez (2021). Since then I’ve seen the government argue in several jurisdictions that TransUnion now upends Public Citizen v. Department of Justice (1989), such that FOIA requesters must prove some sort of adverse impact beyond the mere denial of access. I’m grateful the majority here rejected that position, holding instead that a requester has standing to bring an “reading room” claim, so long the lawsuit is preceded by a request for the agency to comply with its affirmative disclosure obligations. I think the majority handled well Judge Rao’s dissenting viewpoint on the standing question, too.
AB: We did, to be fair, flag Judge Ketanji Brown Jackson’s 2020 decision from an earlier stage of this dispute as one of our top cases that year, and it was her ruling that kept the claim regarding OLC’s inter-agency opinions alive long enough to reach the Circuit. On the merits, we appear to agree that the decision was unsurprising—at least for me, because it was the correct result. I agree with you that the informational-injury discussion was the more interesting part of the opinion. The majority’s refusal to let TransUnion quietly displace Public Citizen is important, even if it did not ultimately change the outcome here.
(2) State of Georgia v. Dep’t of Justice, 148 F.4th 724 (D.C. Cir. 2025) — reversing the district court in principal part and entering judgment in favor of the government; holding, like the Fourth Circuit, that communications exchanged between an agency and private parties can nevertheless satisfy Exemption 5’s “inter-” or “intra-agency” threshold when those communications reflect “attorney work-product” shared “with aligned parties under a common-interest agreement rooted in shared interests and a need for confidentiality”; noting, in response to Georgia’s arguments, that caselaw on the consultant-corollary doctrine, while informative for reaching a functionalist reading of “intra-agency,” does not “reflexively control in the distinct context of this case”; holding further that, aside from two initial emails which predated the "memorialization of . . . [a] common interest agreement,” the remaining records were, in fact, properly covered by the attorney work-product privilege—an issue Georgia did not dispute—and DOJ had not waived that privilege.
RM: Judicial interpretation of the Exemption 5 threshold is one of the best examples of how FOIA can turn the most ardent textualists and formalists into purposivists and functionalists! Consider Justice Scalia’s dissent in Department of Justice v. Julian. Classic example. I have to give credit to Judge McFadden for writing what I thought had been a pretty solid opinion in the district court. While acknowledging the D.C. Circuit’s acceptance of the consultant corollary, he took the Supreme Court’s decision in Klamath quite seriously and carefully consider the corollary’s specific application to records reflecting DOJ’s cooperation with non-government parties challenging Georgia’s election laws. I thought his consideration of DOJ’s common-interest arguments vis-a-vis Exemption 5 was strong, too. I disagree strongly with the Circuit’s reversal. Its decision to set aside the consultant corollary altogether and instead side with the Fourth Circuit in adopting common interest agreements as an alternative (but equally atextual) way around Exemption 5’s threshold is a terrible development. It also strikes me as inconsistent with the Circuit’s trend to take the threshold more seriously in other contexts, such as when dealing with communications between agencies and Congress.
AB: I never thought I’d see the day you’d publicly praise a McFadden opinion, but here we are. You should do so more often. I appreciate the consistency of your approach: you’ve made clear that practical concerns are for Congress, not the courts, and you stick to that principle even when the results cut against what is good for America. In sum, you are an intellectually honest wrecking ball. For my part, I agree with the Circuit’s decision in this case. And I was not thrilled with the Circuit’s cramped view of outside collaboration in American Oversight v. HHS (D.C. Cir. 2024), which you supported. Half a loaf, as they say, is better than none.
RM: I’ll take the label of “intellectually honest wrecking ball” as a badge of honor. After all, I’m always free (apparently) to interpret that phrase against its plain meaning when functional needs demand it! In all seriousness, though, the real demolition job here was the Circuit’s decision to treat Exemption 5’s threshold requirement as subject to an agency’s practical interest in secrecy. I don’t see any reason why courts should afford special solicitude to the Executive Branch’s desire to block public access to correspondence with outside groups litigating against an administration’s political opponents. Consultants yesterday—common-interest partners today—what comes next?
(3) Ctr. for Investigative Reporting v. Dep’t of Labor, 145 F.4th 1211 (9th Cir. 2025) — affirming district court’s decision that Exemption 4 did not protect reports filed by certain contractors from 2016 to 2020 describing the composition of their workforces, including employee job categories and demographics; determining that the reports did not meet “plain meaning” of “commercial” information, which the Circuit held must be “made to be bought and sold or . . . describes an exchange of goods or services for profit”; rejecting district court’s reasoning that the reports were not “commercial” because they lacked “commercial value” and would not cause competitive harm if disclosed.
AB: This was a mixed result in my book. The Ninth Circuit rightly rejected the district court’s reasoning that the EEO reports were not “commercial” simply because their disclosure would allegedly not cause competitive harm to contractors. That proposition was precluded by the Supreme Court in Food Marketing Institute v. Argus Leader Media, which has prompted plaintiffs to more frequently challenge the “commercial” threshold of Exemption 4. See, for example, Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 21‑5276 (D.C. Cir. Jan. 31, 2023), and Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 19-cv-3626 (D.D.C. 2024), which we debated in previous commentaries.
I remain unconvinced that a direct connection between the disputed information and an actual exchange of goods or services should be required to qualify as “commercial,” as the Ninth Circuit held here. Thankfully, these types of reports are now maintained exclusively by the EEOC, which is required to treat them as confidential under Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e‑8(e). Congress dropped the ball by not protecting the same information in the hands of the Labor Department.
RM: I read the Ninth Circuit’s opinion as vindicating the D.C. Circuit’s rule in CREW v. DOJ that “commercial” information under Exemption 4 must be “commercial in and of itself,” that is, intrinsically commercial. Thus, in the CIR court’s words, “commercial” information must either be “made to be bought and sold”—i.e., be an “object of commerce”—or otherwise “describe[] an exchange of goods or services for profit”—i.e., be a “subject of commerce.” Applying that standard, it seems incontrovertible that the EEO-1 reports are neither created to be bought or sold nor revelatory of actual commercial operations. To be sure, with additional information extrinsic to the reports, a requester might be able to learn something about federal contractors’ business models and such. But that sort of down-the-line consideration—which I think you analogized to a mosaic theory of harm under Exemptions 6 and 7(C) when we discussed the CREW remand last year—shouldn’t factor into the Exemption 4 analysis. And, for what it is worth, while it’s true the Circuit claimed it was rejecting the district court’s reasoning, I’m not sure I agree with the panel’s characterization of the opinion below. In my mind, Judge Alsup was clear that “merely suggesting that the disclosure of information will result in commercial repercussions does not satisfy the ‘commercial’ requirement.” It was the government, in fact, that kept raising the harm argument! The district court really focused more on whether the EEO reports contained information that would “yield any commercial insight that is specific to the operations of the federal contractor.” And I take that to be exactly what the Circuit ended up saying was key.
(4) Texas Pub. Policy Found. v. Dep’t of State, 136 F.4th 554 (5th Cir. 2025) — reversing lower court in a 2-1 decision and holding that Exemption 6 did not protect the names and email addresses of rank-and-file State Department employees (i.e., non-policy makers) who were involved in developing President Biden’s emissions reduction target after rejoining the Paris Agreement; the majority found that the Department’s fears about potential harassment, doxing, or unwanted attention were not substantiated with credible evidence; that there was a significant public interest in understanding how government policy is formed, even when those involved are not senior officials; and that work-issued emails did not merit the same privacy protections as personal information; the dissent opined that Exemption 6 protected the names and email addresses of rank-and-file employees because their participation in “a high-profile and controversial matter” could expose them to harassment, whereas the rescinded nature of the emissions pledge weakened public interest in disclosure.
AB: This was a close call. The balancing tests under Exemptions 6 and 7(C) are somewhat subjective and occasionally can swing either way. The majority might be right that the agency failed to demonstrate that disclosure “would” constitute a “clearly” unwarranted invasion of privacy. But if I had been on the panel, I’d have been inclined to affirm the lower court. Rank-and-file employees can face serious threats when involved in high-profile or controversial matters, particularly in today’s more violent and polarized political climate. Courts have recognized in Exemption 6 cases involving abortion policy, immigration enforcement, and other contentious issues that disclosure of names or contact information can create real risks of harassment, threats, or doxing. Climate policy fits comfortably within those precedents.
RM: I’ve never been a huge fan of the categorical approach that some agencies take towards the redaction of their employees’ identifying information. Here, the State Department argued that, subject-matter context aside, privacy interests were per se heightened for “working-level officials without decision-making authority.” That aligns with the Department’s position—which I’ve encountered in my own practice—that identifying details about any employee below the rank of Deputy Assistant Secretary (or, if stationed abroad, below the rank of Deputy Chief of Mission) should be withheld. In most cases, I think this kind of broad application of Exemption 6 is inappropriate. There must be a more individualized inquiry. I suspect that was what the Circuit was trying to emphasize. Controversiality, by itself, just like one’s duty station or assignment or rank within an agency, isn’t enough to justify a categorical use of Exemption 6. I’ll grant that the political climate today seems more polarized. But the agency just didn’t do the legwork to proffer evidence establishing how threats of harassment or violence would flow from disclosure. Another point to highlight is the Circuit’s observation that the State Department downplayed the value of the public knowing the identifies of employees who “lack policymaking authority” but were engaged on important projects. This public-interest side of the balancing test tends to get short shrift in my opinion. I can attest from my years of experience in reviewing FOIA productions, that the most useful information is just as frequently (if not more often!) found in the work product of rank-and-file agency personnel as it is in the Secretary’s email account.
(5) Am. Oversight, Inc. v. Dep’t of Health & Human Servs., No. 17-0827, 2025 WL 2718977 (D.D.C. Sept. 24, 2025), appeal filed, No. 25-5375 (D.C. Cir. Oct. 24, 2025) — on remand from the D.C. Circuit, 101 F.4th 909, denying the intervening U.S. House Committee on Ways & Means’s motion for summary judgment and granting the requester’s cross-motion; concluding, under the D.C. Circuit’s so-called “modified control test,” that “five sets of email communications and attachments” comprising communications between agencies and Congress about “healthcare reform legislation,” which cannot be exempt under Exemption 5, qualify as “agency records” and are not under Congress’s legal “control”; rejecting Congress’s argument that the mere affixing of an email “Legend” asserting control is adequate because it is only a “generally applicable disclaimer” without the required “specificity” to treat the records at issue as congressional in nature, and no other evidence exists to demonstrate any effort to “set parameters [reflecting Congress’s retention of control] for the information exchanged with the Agency”; noting also that the agencies conceded they had used the records “as they saw fit” for their own decision-making processes,” a fact Congress did not deny but attempted to argue should not be considered as part of the Court’s control analysis.
RM: Last year, we agreed the D.C. Circuit’s opinion in American Oversight was perhaps the most significant decision of 2024. Now, on remand, the district court has come out with another important opinion, which is again bound for the Circuit. Although HHS agreed with the requester that the records at issue here were under agency control, Congress successfully intervened and tried to argue that the Ways & Means Committee had, in fact, intended its e-mail correspondence with HHS to remain under congressional control. The fact we have the agency and requester on the same side here is noteworthy in and of itself! But Judge Sullivan has also written a strong opinion explaining why the Committee’s proposed change to the “modified control test” was unpersuasive, and how application of the test cuts in favor of agency control. As I explained years ago, Congress’s push to keep its communications with agencies out of the reach of FOIA is a serious problem, and that effort hasn’t abated.
AB: Whether HHS will remain on the same side of the requester on appeal remains to be seen; the briefing before Judge Sullivan predated Trump and RFK, Jr. That aside, I have no strong objections to the test used by the court, its analysis of the facts, or the result. Bottom line: an email legend from a staff flunky won’t cut it. Unlike you, I do not necessarily fault Congress for intervening in this case or others given how its communications with agencies are being treated under Exemption 5. If disclosures weren’t potentially harmful to Congress, it wouldn’t bother intervening.
(6) Gun Owners of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 21-2919, 2025 WL 2061705 (D.D.C. July 23, 2025), appeal filed, No. 25-5309 (D.C. Cir. Aug. 26, 2025) — granting the agency’s motion for summary judgment and denying the requester’s motion to lift a “temporary protective order” as moot; holding the agency properly applied Exemptions 3, 6, 7(C), 7(D), and 7(E), which plaintiff did not contest; after distinguishing the D.C. Circuit’s recent opinion in Human Rights Defense Center v. U.S. Park Police, holding further that the court retained inherent equitable authority to prohibit the requester from further dissemination of “inadvertently disclosed” information “‘related to the FBI and ATF’s warrantless NICS Monitoring Program’” and protected by Exemptions 3 and 7(E).
RM: I think this decision is deeply problematic. In my opinion, it demonstrates complete disregard the Circuit’s decision in Human Rights Defense Center. I understand the rejection of clawback authority was unpopular in some circles. But the Gun Owners decision simply recasts the clawback fight as implicating a court’s equitable, as opposed to inherent, authority under the FOIA. I won’t belabor the point. I filed an amicus brief in the pending appeal, which can be read here. And for good measure, my brief in Human Rights Defense Center is here. I don’t like making predictions in cases, but I do sense the government faces an uphill battle in arguing for affirmance, at least if they want to limit Human Rights Defense Center to the facts of that case.
AB: I was among those who disagreed with HRDC and therefore found this opinion deeply satisfying—or at least entertaining. The district court went to some lengths—particularly in footnote 6—to distinguish HRDC rather than simply ignoring it, effectively “tap-dancing” around the Circuit’s holding. I was impressed by how your amicus brief thoroughly addressed and countered the court’s reasoning point by point. Alas, the government seemingly mooted a large portion of the case by releasing previously withheld records prior to oral argument. What is your sense of the case now?
RM: Yes, the government has gone out of its way to moot most of the case. It even released records it previously insisted were protected by Exemption 3 and the Tiahrt Rider. I attended the oral argument in person. My sense is that the whole panel—certainly, Judges Garcia and Childs—believes the lower court misread Human Rights Defense Center. The judges seem to agree there is neither inherent nor equitable authority under the FOIA to order clawback. Whether an ostensible non-disclosure provision like the Tiahrt Rider provides an independent ground for clawback will probably remain an open question. Judge Pillard’s line of questioning (which dominated the argument) focused on whether the requester’s disavowal of interest in using certain categories of information protected by Exemption 6 could be construed as affirmative consent for entry of clawback as part of a consent decree. There are issues with trying to recast the lower court’s protective order in this way. And argument veered too far into the weeds of that theory. But that might be where the Circuit is likely to go. It’s the easiest way to make the appeal go away: reversal with instructions on remand to reenter relief for the government as a type of consent order. I could live with that result.
(7) Am. Oversight v. DOJ, 779 F. Supp. 3d 40 (D.D.C. 2025) & N.Y. Times v. Dep’t of Justice, No. 25-0562, 2025 WL 2549435 (S.D.N.Y. Sept. 4, 2025) — both holding that DOJ did not “improperly” withhold Volume II of Special Counsel Jack Smith’s report concerning President Trump’s alleged mishandling of classified documents, because an injunction issued by a federal court in Florida prohibited the report’s release.
AB: These similar cases make our list primarily because they concern an exceptionally high‑profile matter that attracted intense media attention, not because the FOIA issue was novel or complex. Once the Florida court’s jurisdiction to enter an injunction prohibiting release of the report was established, the judges handling these FOIA suits had little choice but to defer to Supreme Court precedent. The matter remains ongoing, so stay tuned. The current Florida injunction is set to expire on February 24, 2026, and our former Cause of Action Institute colleague Kendra Wharton is leading President Trump’s effort to obtain a permanent injunction blocking disclosure.
RM: It’ll certainly be interesting to see how things turn out. As something of an aside, I wonder whether the GTE Sylvania exception to the exclusivity of the FOIA’s statutory exemptions, which featured prominently in both these cases, can now be grounded in the statute itself. Or at least grounded in something clearer than the phrase “improperly withheld” in Section 552(a)(4)(B)’s description of a court’s remedial authority in a FOIA suit. Here’s my thinking…When Congress codified the foreseeable-harm standard in 2016, it amended subsection (a)(8) to permit withholding “only if” an agency shows it “reasonably foresees that disclosure would harm an interest protected by an exemption” or if “disclosure is prohibited by law.” To be sure, the legislative history suggests the “prohibited by law” language was meant to relieve agencies of undertaking foreseeable-harm analysis with so-called non-discretionary exemptions like (b)(1) or (b)(3). But Attorney General Holder’s FOIA memo, which is the original source of the phrase, as far as I can tell, and the inspiration for Congress’s codification, does not actually suggest that much. (And “prohibited by law” isn’t found in any earlier guidelines issued by Ashcroft (2001) or Reno (1993)!) If we set aside the legislative history, and just focus on the plain text, it seems a judicial order or injunction barring disclosure would fit quite comfortably within the scope of Sec. 552(a)(8)(A)(i)(II).
AB: Leave it to a brand new professor to raise an interesting question that isn’t likely to matter. The Office of Information Policy discusses the foreseeable-harm requirement and GTE Sylvania sequentially in the Procedural Requirements section of its FOIA Guide, but it hasn’t expressly addressed your question. Perhaps DOJ will in a distant brief.
(8) Heritage Found. v. Dep’t of Justice, 775 F. Supp. 3d 424 (D.D.C. 2025) — in a case where the parties contested the proper meaning of the term “request,” denying the government’s motion for summary judgment and adopting the plaintiff’s proposed interpretation; holding that the FBI improperly split-up the plaintiff’s three-item FOIA request into three separate “requests”; explaining that, despite the agency having issued timely adverse determinations on two of the three parts, the requester was not required to exhaust administrative remedies as to those denials (and the separate denial of a fee waiver) before filing suit on the entirety of its submission after the agency failed to provide a timely response to the third item; suggesting that common usage, relevant caselaw, and statutory context all point to “request” best “refer[ring] to an overall FOIA submission,” rather than individual parts of a multi-item “submission”; noting that, while FOIA provides explicit authority to aggregate or consolidate distinct requests, there is no mention of splitting-up a request; expressing skepticism towards the agency’s contention that ruling for the plaintiff would “allow requesters to strategically circumvent the administrative appeal process.”
AB: A case of first impression is bound to make our list. What stands out is how long it took a case like this to be decided. DOJ components routinely split FOIA requests that identify multiple individuals or distinct subject areas, and most requesters don’t really care when this happens. And I understand why agencies divide requests: it makes the work easier to spread among analysts, or for one analyst to track searches, document processing, etc.—and it helps inflate request counts for reporting purposes. The court’s decision is correct, in my opinion, because it is consistent with the statute, common sense, and procedural fairness.
RM: Agreed on all counts, especially in terms of the issue not having come up sooner in the caselaw. It’s also striking to me that, while the FOIA provides authority for agencies to promulgate regulations for the aggregation of requests—something that I understand is happening with greater frequency given the advent of high-volume, “bot” driven requesting—it is silent about the sort of maneuver the FBI tried in this case.
Honorable Mention
Citizens for Responsibility & Ethics in Wash. v. U.S. DOGE Serv., 769 F. Supp. 3d 8 (D.D.C. Mar. 10, 2025) — in most notable part, granting plaintiff’s request for expedited processing of various records from the U.S. DOGE Service (USDS) because the “preliminary record” indicated that USDS “likely” wields substantial independent authority from the White House and therefore is any agency subject to FOIA.
RM: This case hasn’t been in the news lately, at least not since the Supreme Court waded into the parties’ discovery dispute last June. (A rare example of discovery in a FOIA case, as we noted here!) We covered a number of breaking developments early in 2025, including this opinion, as well as a subsequent one denying the government’s motion for reconsideration. I have bets with friends in the transparency community about how this case will turn out on the merits! It’s definitely an interesting question whether DOGE, which is a reimagined U.S. Digital Service (formerly part of OMB, which is subject to FOIA), qualifies as an “agency.” Based on the record before the court, however, I’m not sure Judge Cooper got things right. The atmospherics at the time, coupled with a lack of public knowledge about what DOGE was doing, might explain the holding. But I still think there wasn’t enough close analysis of the DOGE executive order and the actual structure of the White House DOGE, as opposed to the “DOGE teams” at various agencies. In any event, I’m eager to see how summary judgment briefing unfolds once discovery is over. We might learn a great deal!
AB: Sometimes when an older celebrity dies, you think, “Oh, I didn’t even realize they were still alive.” That’s kind of how I feel about this case. Last year, the litigation over USDS and whether DOGE qualify as an “agency” was all the rage in transparency circles, with expedited processing and discovery battles making headlines. But with the demise— or apparent demise—of DOGE (or at least Elon Musk’s departure), it now feels more like a faded curiosity. Still, the case raises genuinely interesting questions about FOIA’s applicability, and we may learn a lot once the merits are fully litigated. I hope you got favorable odds on your bets!
