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.

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).

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.

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.

FOIA News: Updating E-FOIA reading room links

Attention FOIA Advisor readers. Our list of agency reading rooms may be incomplete or contain broken links as a result of website redesigns since January 20, 2025. We will review and update our links on a regular basis. Feel free to contact us about any problems you find.

FOIA News: OIP "updates" multiple sections of FOIA Guide

The Department of Justice’s Office of Information Policy has revised seven sections of its online-only Department of Justice Guide to the Freedom of Information Act over the past six weeks. See list below. When we last checked the Guide in early December, we criticized OIP for excluding many new court decisions from its updates. OIP’s efforts primarily remain lackluster.

• Exemption 1 (posted Jan. 7, 2025) (“primarily includes case law, guidance, and statutes up until November 30, 2022”)

• Exemption 3 (posted Dec. 20, 2024) (“primarily includes case law . . . up until September 30, 2022”)

• Exemption 4 (posted Jan. 29, 2025) (“primarily includes case law . . . up until December 31, 2022”)

• Exemption 7(B) (posted Dec. 10, 2024) (“primarily includes case law . . . up until September 30, 2023”)

• Exemption 7(F) (posted Jan. 21, 2025) (“primarily includes case law . . . up until January 31, 2024”)

• Exclusions (posted Dec. 20, 2024) (“primarily includes case law . . . up until May 31, 2024”).

• Reverse FOIA (updated Jan. 15, 2025) (primarily includes case law . . . up until [actual cut-off date]”). What OIP’s “actual cut-off date” is for “Reverse FOIA” is a mystery. To quote Rick Perry, “oops.” Stay tuned for another update!

FOIA News: More annual reports available

We have located several more annual FOIA reports published by agencies since we first posted an initial batch on January 6, 2025. Only a few warrant commentary.

• Council of the Inspectors Gen. on Integrity & Efficiency: CIGIE did not fulfill its efficiency mission in FY 2024 with respect to processing FOIA requests. The agency completed only 100 requests after starting the fiscal year with 56 requests on hand and receiving an additional 207 requests.

• Dep’t of the Interior: The Department treaded water in FY 2024, receiving 8305 requests and fulfilling 8,426 requests; its request backlog rose slightly from 4,320 in FY 2023 to 4,412 at the end of FY 2024.

• Securities & Exchange Comm’n: The SEC received 10,811 requests and processed 10,985 requests, cutting its request backlog from 819 in FY 2023 to 475 at the end of FY 2024. Although the agency’s records are often sought by commercial requesters, the agency collected a meager $311 in fees while bearing more than $13.2 million in processing costs.

• AmeriCorps

• Amtrak

• Fed. Election Comm’n

• Merit Sys. Prot. Bd.

• Millennium Challenge Corp.

All agencies are required to publish their annual reports on their websites by March 1, 2025.

FOIA News: FCC raises FOIA fees

On January 23, 2025, the Federal Communications Commission published a notice announcing increases to its hourly FOIA processing fees due to the government-wide salary increases on January 1, 2025.

FOIA News: This and that

• In fiscal year 2024, the Defense Department’s Office of the Secretary of Defense and Joint Staff received more than 1500 requests targeting 401 officials from the Heritage Foundation, according to a Law Street Media analysis.

• The New York Times filed a FOIA lawsuit on January 21, 2025, that seeks access to former Special Counsel Jack Smith’s report about the Trump classified documents case.

• The Government Attic recently posted heavily-redacted memos from DOJ’s Office of Legal Counsel concerning the Treasury’s ability to issue a $1 trillion coin if Congress failed to raise the debt ceiling.

• The FBI’s Vault recently recently added the personnel records of James Kalstrom, who notably headed the criminal investigation into the TWA Flight 800 crash in 1996; part 4 of OJ Simpson’s file; and various records about Sheldon Adelson.

• The 2024 annual FOIA report of the Office of Science and Technology Policy (OSTP) is not currently accessible on the White House’s new website, but it is available here. The FOIA resources of the Council of Environmental Quality (CEQ) have been archived here; the Office of Management and Budget’s FOIA resources are here.