FOIA News: The CREW-DOGE FOIA saga continues with the opening of summary judgment proceedings

The U.S. DOGE Service has filed its motion for summary judgment in CREW v. DOGE, arguing that it is not an “agency” as defined by the Freedom of Information Act. The government’s brief can be found here.

FOIA News: Judge Cooper rejects DOGE's motion for reconsideration in FOIA case

Following what can only be described as an extraordinarily speedy round of briefing, Judge Christopher Cooper has denied DOGE’s motion for reconsideration in CREW v. DOGE, No. 25-0511 (D.D.C.):

“Because the government’s arguments could all have been raised during the last round of briefing”—that is, during the court’s consideration of CREW’s request for preliminary injunctive relief to compel expedited processing—“none of them provides a basis for reconsideration.”

Although Judge Cooper denied the government’s motion for reconsideration, he nonetheless decided to extend the “deadlines set forth in its prior order”—specifically, to March 27th to provide an estimate of the number of responsive records at issue, and to April 3rd to propose a production schedule—”to ensure that USDS can provide meaningful responses to CREW’s inquiries.” This appears to have been done to facilitate DOGE’s imminently expected motion for summary judgment (or an appeal to the D.C. Circuit of the preliminary injunction, which so far has gone unnoticed). As the court explained, “it would be preferable . . . to review the question of whether USDS is subject to the FOIA on the merits based on a more complete record.” For this reason, the court has seemingly invited CREW to filed a motion under Federal Rule of Civil Procedure 56(d) to conduct limited discovery.

Notably, the court appeared unimpressed by the government’s creative arguments about the supposedly erroneous irreparable harm analysis underlying its preliminary injunction, and continued to insist on the necessity of “Congress and the public . . . hav[ing] a hope of receiving the requested information while it remains timely.” The court was moreover incredulous that DOGE Administrator Gleason’s declaration could not have previously been offered into evidence, thus rendering it an inapt basis for reconsideration of last week’s PI order. “[T]he declaration appears to be subject to factual disputes that may provide a basis for CREW to seek discovery,” surmised Judge Cooper. For example, the court doubted Ms. Gleason’s averment that “Elon Must does not work at USDS,” given public representations by President Trump and Musk himself to the contrary. Judge Cooper did not address two other—perhaps, central—arguments advanced by the government, namely, his alleged misapprehension of the structure of DOGE—and the distinction between USDS within the White House, on the one hand, and agency “DOGE Teams,” on the other—and his heavy (and now, continued) reliance on press reports rather than sworn evidence.

The full opinion, which also addresses other arguments advanced by DOGE, can be found here.

FOIA Advisor’s previous reports on this case are here, here, and here.

Q&A: Don't give up hope

Q. Can I submit FOIA requests to get records created by the White House Office of Public Engagement (WHOPE) during the Obama and Biden Administrations?

A. If WHOPE still existed, it would not be subject to FOIA requests.  In any event, the records of the Obama and Biden Administrations are now in the legal custody of the National Archives and Records Administration.  Pursuant to the Presidential Records Act, you'll have to wait five years—that is, until Jan. 20, 2030—before making a FOIA request to NARA for Biden Administration records.  You can file a FOIA with NARA's Obama Library by sending an email to obama.library@nara.gov. 

FOIA News: A quick retort . . . DOGE's reply to CREW filed

The government filed its reply in support of its motion for reconsideration in CREW v. DOGE shortly after the requester lodged its opposition earlier today. The court has not announced whether there will be a hearing, or if it will rule on the papers alone.

The DOGE reply is short, totaling only four pages. The government rejects CREW’s characterization of DOGE’s supposed “litigation strategy,” namely, as an effort to avoid the “agency” merits question because it expected CREW to lose on its irreparable harm theory. In so doing, the government tries to distinguish two types of requested relief: (1) expedited processing by a date certain, which it maintains was what CREW sought in its preliminary injunction motion, and (2) expedited processing in the abstract. “If there was no irreparable harm justifying a preliminary injunction by March 10 (which this Court correct found there was not), there was no basis for CREW’s motion. No plausible theory of party presentation or fair notice required USDS to address whether it is an agency[.]”

The government reiterates, too, that the district court improperly relied “significantly” on “media reports” and failed to “meaningfully address the multiple Executive Orders and presidential memorandum [sic] that delineate USDS’s limited and purely advisory responsibilities as a non-statutory entity[.]” One such example, DOGE maintains, was the court’s focus on the word “implement,” which it considers a “thin reed” to support Judge Cooper’s decision.

In closing, DOGE advised it will file a motion for summary judgment today, March 19th. Although there is, again, no timeline for the court to rule on reconsideration, the government will undoubtedly expect that request to be considered effectively on an emergency basis. DOGE’s proposed summary briefing schedule would end the day before Judge Cooper’s deadline for a production schedule proposal. If action isn’t taken in the government’s favor before that deadline, an appeal to the D.C. Circuit seems quite likely.

Court opinions issued Mar. 14, 2025

Finders Keepers USA, LLC v. Dep’t of Justice (D.D.C.) — on renewed cross-motions for summary judgment, granting in part and denying in part each party’s motion; on the question of search adequacy, (1) finding that the FBI’s chosen search terms were “reasonably calculated to uncover all relevant documents,” (2) rejecting the agency’s cut-off date (i.e., the date of its initial search) as unreasonable because it “should have looked for records through the date of its second search,” and (3) again identifying deficiencies in the FBI’s averments that it searched all files likely to contain responsive material, given the facts of the case and prior proceedings; similarly ruling that the search for certain DVD videos was reasonable; deciding that “a genuine dispute of fact” exists as to whether the FBI was required to produce all versions of a particular operational plan; and, finally, rejecting once again the FBI’s invocation of Exemption 7(E) for failure to identify the risks of circumvention of the law, and for failure to satisfy the foreseeable-harm standard; ordering in camera review and further proceedings.

Francis v. Internal Revenue Serv. (D.D.C.) — granting the agency’s combined motions to dismiss and for summary judgment; dismissing as moot several counts in the complaint because the IRS located responsive records and released them in full, and there was no further challenge to the adequacy of the relevant searches; concluding that, with respect to another count, the requester failed to exhaust administrative remedies by admittedly failing to file an appeal before initiating the lawsuit; rejecting another two counts as pertaining to improper or invalid FOIA requests that “sought information and not records”; and, finally, ruling the IRS conducted an adequate search for all remaining counts, and rejecting the requester’s arguments that the agency “acted in bad faith through its false and misleading representations.”

Tsai v. United States (D.D.C.) — in relevant part, granting the IRS’s motion for summary judgment and holding that the agency conducted an adequate search; noting an apparent “gap between what [the requester] had actually requested and what he . . . intended to request,” but accepting the agency’s arguments that post-submission modification or enlargement of the scope of the request was improper given its “four-corners”; declining to strike the agency’s supporting declaration for lack of personal knowledge because, “[i]n the FOIA context, ‘declarants are not required to have personal knowledge of the search itself, but rather ‘personal knowledge of the procedures used in handling [a FOIA] request and familiarity with the documents in question.’”

White v. Dep’t of Agric. (E.D. Okla.) — denying the agency’s motion for summary judgment and rejecting the adequacy of its search for records about the Rural Development Division’s rental assistance program; explaining that, while the agency’s supporting declaration “indicates that all the records in USDA possession have been produced, it contains no averments pertaining to the agency’s search” methodology, including descriptions of search terms and the types of searches actually performed.

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

FOIA News: Wired dropping paywall for FOIA stories

Wired is dropping paywalls for FOIA-based reporting. Others should follow.

Katie Drummond, Freedom of the Press Found., Mar. 18, 2025

The news business isn’t just any business — it serves a vital role in our democracy, recognized by the First Amendment. But media outlets can’t serve that role if they’re bankrupt. And as a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

That experience is particularly frustrating for readers who are unable to access the groundbreaking investigative reports outlets like Wired magazine have been publishing, particularly over the first couple months of the Trump administration. Fortunately, Wired has a solution — it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act.

This approach makes a lot of sense from the standpoint of civil duty. They’re called public records for a reason, after all. And access to public documents is more important than ever at this moment, with government websites and records disappearing, Elon Musk’s Department of Government Efficiency doing its best to operate outside the public’s view, and the National Archives in disarray.

But some may argue that, from a business standpoint, not charging for stories primarily relying on public records automatically means fewer subscriptions and therefore less revenue. We disagree. Sure, the FOIA process is time- and labor-intensive. Reporters face stonewalling, baseless denials, lengthy appeals processes, and countless other obstacles and delays. Investigative reports based on public records are among the most expensive stories to produce and share with the public.

Read more here.

FOIA News: The CREW-DOGE FOIA fight continues

Today, Citizens for Responsibility & Ethics in Washington (“CREW”) filed its opposition to the government’s motion for reconsideration in a case where Judge Christopher Cooper has concluded that President Trump’s DOGE is likely an “agency,” as defined by the Freedom of Information Act (“FOIA”).

CREW’s argues, principally, that DOGE fails to identify any “intervening change of controlling law, new evidence, or need to correct a manifest injustice,” such as would justify reconsideration. Instead, “[i]t simply wants a do-over” to provide evidence and argument that should have already been raised during briefing CREW’s request for preliminary injunctive relief—that is, expedited processing of its FOIA request. On CREW’s view, the district court’s consideration of DOGE’s supposed agency status was entirely correct, procedurally speaking, and any attempt to relitigate the “agency” question now has been waived. As CREW’s attorneys put it: “DOGE’s problem is not that it was not aware of or failed to appreciate that FOIA’s applicability to it was in dispute; its problem is that it recognized and raised the issue but chose not to make an essential argument.”

As for the proffered declaration of DOGE Administrator Amy Gleason, CREW insists this new factual evidence is similarly improper ground for reconsideration, and hardly establishes “extraordinary circumstances” that would warrant disturbing the district court’s PI order: “Nothing in Ms. Gleason’s declaration is new in any sense,” notwithstanding questions about her availability to have offered such averments during the previous round of briefing, and instead the declaration “raises more questions than it answers.”

CREW also argues that the government’s attempt to seek a stay pending potential appeal is unwarranted and “falls woefully short of its burden.”

Finally, CREW asks the court, if it decides to grant reconsideration, to order expedited discovery into DOGE’s structure, authority, and operations, so as to avoid a new judgment based solely on “Defendants’ one-sided evidentiary presentation.” Limited discovery into the functions of EOP components is not unprecedented and has indeed been ordered in the past in other cases involving entities such as the Office of Administration, the Office of Homeland Security, and the National Security Council. It seems that CREW anticipates any successful motion for reconsideration to be followed by summary judgment briefing on DOGE’s disputed “agency” status.

The government, for its part, could file a reply brief—although it is possible the court will act on the motion without waiting for such a filing. If the motion for reconsideration is ultimately denied, it is possible—and perhaps even very likely—that DOGE will notice an appeal to the D.C. Circuit. As always, FOIA Advisor will continue to monitor and report on this important and interesting case.

FOIA News: ICYMI: DOJ-OIP 2024 Litigation and Compliance Report

2024 FOIA Litigation and Compliance Report Now Available

DOJ-OIP, FOIA Post, Mar. 18, 2025

Earlier this month, the Office of Information Policy (OIP) posted the Department’s 2024 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing OIP’s efforts to encourage agency compliance with the FOIA.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.  The report also contains lists of all FOIA litigation cases received and decided in the prior calendar year. 

This year's report highlights new guidance issued by OIP such as guidance for further improvement in light of OIP’s assessment of agency Chief FOIA Officer Reports and guidance on FOIA reporting requirements.  As detailed in the 2024 Report, OIP fielded over 750 direct one-on-one counseling calls via OIP’s FOIA Counselor Line.  OIP also hosted and facilitated numerous training programs and briefings on the FOIA and offered training to over 8,000 registered attendees.  The Report also summarizes the recently updated chapters to the DOJ Guide to the FOIA, searchable summaries of court decisions, and information about FOIA news and events published in the FOIA Post blog.

The 2024 Report also details OIP’s work in continuing to maintain and enhance the National FOIA Portal on FOIA.gov that allows the public to submit a request to any Federal agency from a single site.  In 2024, OIP enhanced the FOIA Search Tool on FOIA.gov that utilizes machine learning to help members of the public quickly and accurately locate commonly requested records.  OIP continues to refine the tool to best serve the public.  

Along with the narrative portion of the report, every year OIP compiles charts listing the FOIA litigation cases received and decided during the reporting year.  As in previous years, OIP again provides these charts in both PDF and open (CSV) formats.

OIP invites both agencies and the public to review its 2024 Litigation and Compliance Report to learn more about all our efforts to encourage agency compliance with the FOIA.  OIP looks forward to building on these efforts as we continue to work with agencies and the public to improve the overall administration of the FOIA in the years ahead.

Read the original post here.

FOIA News: Trump critics predict doomsday for transparency

Sunshine Week comes amid darkening clouds for open gov advocates

It's Sunshine Week, but transparency advocates say open government, already in peril, may be reaching a new low under the Trump administration.

By Justin Doubleday, WFED, Mar. 17, 2025

The Justice Department’s Office of Information Policy (OIP) typically marks Sunshine Week, an annual occasion to celebrate open and transparent government, with a public awards ceremony to honor the contributions of Freedom of Information Act (FOIA) professionals across government.

This year, however, DoJ OIP appears to have abandoned previous plans to host the annual FOIA awards on March 17. DoJ did not respond to a request for comment.

For open government experts, the cancellation of what was a routine ceremony is just the latest blow in a new assault on government transparency. They point to how the Trump administration has fired FOIA staff, removed public websites and data, terminated 18 inspectors general, and resisted efforts to disclose DOGE records, among other actions.

“I think this is the darkest Sunshine Week within living memory,” Daniel Schuman, chief executive of the American Governance Institute, told me in an interview. “Nothing less than a collapse of open and accountable government is happening all around us.”

Read more here.

[ALB commentary: We’re glad to see our earlier reporting on the growing request backlog and about Sunshine Week echoed here.

Mr. Schuman apparently has a short memory. A mere five years ago in mid-March, the entire country was shut down by COVID-19 and scores of agency FOIA offices were crippled for months—in some cases for all of 2020 and beyond (e.g., the National Archives and Records Administration). Mr. Schuman’s dramatic comment reminds me of a recent observation by Pennsylvania Senator John Fetterman about the state of the Democratic Party:  “A sad cavalcade of self owns and unhinged petulance . . . We’re becoming the metaphorical car alarms that nobody pays attention to − and it may not be the winning message.”

Further, Professor Cuillier is off base in claiming that the Department of Justice’s Office of Information Policy “favors secrecy.” No, OIP is dedicated to faithfully applying the statute, which inconveniently for some open government advocates includes exemptions. The FOIA is not, as many like to say, a “records disclosure statute”; it is a partial disclosure statute. The exemptions are as much a part of FOIA’s purpose as is the general purpose of access.

FOIA News: Top House Democrats are seeking DOGE details under the Freedom of Information Act

Top House Democrats are seeking DOGE details under the Freedom of Information Act

By Lisa Mascaro, Associated Press, Mar. 18, 2025

Top Democrats on the House Judiciary and House Oversight committees have filed a lengthy Freedom of Information Act request questioning whether the Trump administration’s DOGE Service is operating “outside the bounds of federal law,” The Associated Press has learned.

Rep. Jamie Raskin of Maryland and Rep. Gerald Connolly of Virginia are seeking detailed information about the authority of the Department of Government Efficiency Service, including billionaire Trump adviser Elon Musk and some 40 other people, to carry out firings of federal workers and dismantling of federal agencies.

Read more.