FOIA News: EEO-1 reports are exempt, argues gov’t to 9th Circuit

Feds urge Ninth Circuit to keep lid on contractor workforce data

The feds say records sought by an investigative nonprofit are commercial in nature and shouldn't be released.

By Michael Gennaro, Courthouse News Serv., Feb. 14, 2025

Federal lawyers on Friday morning asked a Ninth Circuit Court of Appeals panel to reverse a lower court's decision that it must release data on federal contractors to a San Francisco nonprofit.

The fight is specifically over EEO-1 reports. These reports reflect the breakdown by job classification of a company’s workforce by race, ethnicity, and sex.

The Center for Investigative Reporting, a San Francisco nonprofit news organization that investigates and reports on injustices in the United States, had submitted a Freedom of Information Act for reports from 2016 to 2020.

The federal government notified its employees of the request, and nearly 5,000 objected to the release of their information. The government released the remaining reports to the Center for Investigative Reporting, prompting the organization to sue in 2022 for the rest of them.

A federal judge sided with the Center for Investigative Reporting in 2023, ruling that EEO-1 reports were not exempt from disclosure under FOIA. The government appealed, arguing that they were.

Read more here.

FOIA News: Interview with Ryan Mulvey

The Office of Government Information Services has posted an interview with our own Ryan Mulvey as part of a series of OGIS posts on members of the federal FOIA Advisory Committee. Keep up the excellent work, Ryan!

FOIA News: CIA's requests ballooned in FY 2024

The Central Intelligence Agency recently posted its annual FOIA report for fiscal year 2024. Here’s a rundown of the main stats:

• 4087 requests received, a 68 percent increase from FY 2023 (2426 requests).

• 2603 requests processed, a 66 percent increase from FY 2023 (1567 requests)

• Backlogged requests increased 71 percent from 2844 at the end of FY 2023 to 4879 in FY 2024.

• The median and average response times for administrative appeals were 688 days and 838 days, respectively. up more than 40 percent from 472 median days and 586 average days in FY 2023

• The agency denied 105 of 106 requests for expedited processing; it denied 86 of 89 such requests in FY 2023.

• The agency employed 50.73 full-time FOIA staff, incurred nearly $4.7 million in processing costs, and collected zero dollars in fees; in FY 2023, it employed 64.42 fill-time FOIA staff, incurred $5.3 million in processing costs, and collected $40 in fees.

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.