FOIA Advisor

Court opinions issued Mar. 31, 2025

Court Opinions (2025)Ryan MulveyComment

Campaign Legal Ctr. v. Dep’t of Justice (D.D.C.) — in a case concerning records about the addition of a “citizenship question” to the census, granting in part and denying in part the parties’ renewed cross-motions for summary judgment on remand; holding that a “10-page email thread between DOJ, Commerce, and White House staff” was properly withheld under Exemption 5 and the deliberative-process privilege, despite post-dating the decision to add the citizenship question to the census, because it was “‘not so much [intended] to explain the agency’s already-decided policy,’ but an ‘iterative weighing of legal and policy concerns’”; holding further that records reflecting discussions about a response to the Washington Post, draft correspondence with a Member of Congress, and inter-agency correspondence were all similarly protected by the deliberative-process privilege; declining, however, to accept the adequacy of the agency’s arguments for the privilege as applied to internal e-mail regarding the census and American Community Survey; noting the agency’s declarations do not “describe the withheld emails with sufficient particularity,” and “[a] one-paragraph explanation without detail, or the document itself [submitted for in camera review], is insufficient”; finally, holding that, while the agency could technically satisfy the requirements to withhold draft responses to interrogatories from the U.S. Commission on Civil Rights under Exemption 5, it had failed to meet the foreseeable-harm standard by not connecting “two comments . . . about two lines of a 24-page” document to the asserted “broader harm of weakened inter agency relationships” or the internal “chill” of agency deliberations.

Webb v. Office of Mgmt. & Budget (D.D.C.) — in a case brought by a “highly vexatious [pro se] litigant,” granting, in relevant part, the government’s motion for summary judgment; holding that OMB conducted an adequate search, and rejecting the plaintiff’s arguments that the agency improperly “characterized his FOIA request as implicating classified records” and failed to locate “records indicating that COVID-19 originated in a laboratory”; noting the plaintiff’s “unsubstantiated assertion that there must be records indicating that COVID-19 originated in a laboratory is the kind of ‘purely speculative claim[] about the existence and discoverability of other documents’ that cannot rebut the presumption of good faith accorded to detailed agency affidavits describing a search.”

Soliman v. Threat Screening Ctr. (D.D.C.) — granting the agency’s motion for summary judgment; holding that the Threat Screening Center (formerly, the Terrorist Screening Center) is a subcomponent of the FBI’s National Security Branch, rather than its own “agency,” and therefore the plaintiff failed to exhaust administrative remedies by filing an appeal challenging the adequacy of the agency’s search for responsive records; notably, the FBI did not raise any specific exhaustion argument in its motion for summary judgement, but only as a defense in its answer.

Aviation Servs. LLC, et al. v. Small Bus. Admin.; Russo, et al. v. Small Bus. Admin. (N.D. Cal.) — in a pair of consolidated cases concerning the SBA’s Economic Injury Disaster Loan (“EIDL”) program, granting in part and denying in part the parties’ cross-motions for summary judgment; holding, firstly, that the agency’s failure to provide timely determinations did not, in and of itself, provide grounds for any declaratory or injunctive relief, particularly since the plaintiffs failed to plead any “policy or practice” claim; also holding that the agency, in large part, conducted an adequate search, but reserving judgment as to certain aspects of the reasonableness of the search methodology due to deficient supporting declarations; directing the agency to provide more detail about certain search terms and to run some supplemental searches; concluding the agency properly withheld case file notes under Exemption 5, in conjunction with the deliberative-process privilege, and that it properly withheld the bank account numbers of individual EIDL applicants under Exemption 6; yet also ruling the agency could not use Exemption 6 to withhold either the names and addresses of loan program participants, or the bank account numbers of “non-personal entities,” i.e., any “company or business entity”; rejecting the agency’s categorical use of Exemption 6 to withhold third-party EIDL application information, including aggregate statistical data, because the agency had not made the necessary showing that “all responsive information” refers to “individually-owned or closely-held businesses” or would otherwise be personally identifying; concluding the agency correctly used Exemption 4 to withhold a company’s “confidential unit pricing”; finally, rejecting the requesters’ “reading-room” claims for failure to meet the “threshold” requirement of describing what records have not been made available under 552(a)(2)(B)-(C) in the agency’s FOIA library.

Jewish Legal News, Inc. v. Dep’t of Educ. (N.D. Cal.) — granting in part and denying in part the parties’ cross-motions for summary judgment; holding the requester lacked standing to challenge “certain redactions and withholdings in the FOIA response that were originally made in response to previous FOIA requests” and only “[re-]produced here in response” to an item of the request at issue; holding also that the agency properly applied Exemption 5 and the deliberative-process privilege, except with respect to emails that reflect communications with persons using “accounts outside the government”; rejecting the agency’s contention that such non-government accounts may have been White House employees as unsupported by adequate specificity in its Vaughn index; concluding the agency properly applied Exemptions 6 and 7(A); rejecting the plaintiff’s policy-and-practice claim predicated on the agency having taken “several months to process and produce documents on a rolling bases,” and explaining that productions are distinct from a “determination,” which is what must be provided within a specified timeframe; denying without prejudice the requester’s motion to the extent it alleged a failure to conduct an adequate search or to reasonably segregate non-exempt material from the records at issue.

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

Court opinion issued Mar. 30, 2025

Court Opinions (2025)Allan BlutsteinComment

Farris v. Garland (D.D.C.) -- determining that: (1) the Executive Office for U.S. Attorneys conducted a reasonable search for certain records related to plaintiff’s conviction for drug trafficking, and it had no obligation to obtain records maintained by other federal or local agencies; (2) government properly withheld certain information from investigative “DEA 6 Reports” pursuant to Exemptions 7(C), 7(D), and 7(E).

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

Court opinion issued Mar. 28, 2025

Court Opinions (2025)Allan BlutsteinComment

Ctr. for Biological Diversity v. U.S. Forest Serv. (D.D.C.) -- finding that: (1) federal contractor’s appraisal of a land exchange between the government and defendant-intervenor, a private mining company, qualified as an “agency record” because the agency “constructively controlled” the appraisal based on the four-factor test set forth in Burka v. HHS, 87 F.3d 508 (D.C. Cir. 1996); using the same test, finding that the contractor’s documents containing data underlying the appraisal were not agency records; (2) agency justified withholding information that would result in foreseeable economic harm to defendant-intervenor, but offered only inadmissible hearsay as to whether withheld information that would result in foreseeable harms to the appraiser and third-party experts’ business interests; (3) agency properly invoked Exemption 5’s deliberative process privilege to withhold the appraisal, summary, and technical report as pre-decisional and deliberative, but rejecting the reasonableness of the harms foreseen by the agency; and (4) agency’s segregability analysis was insufficient because the agency inconsistently processed an appraisal summary and a technical report.

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

FOIA News: HHS slashes FOIA staff at multiple agencies; centralized FOIA office in the works, says HHS.

FOIA News (2025)Allan BlutsteinComment

RFK Jr. purges CDC and FDA's public records teams, despite "transparency" promises

By Alexander Tin, CBS News, Apr. 1, 2025

Teams handling Freedom of Information Act requests at the Centers for Disease Control and Prevention and the Food and Drug Administration were gutted Tuesday as part of the widespread job cuts ordered by Health and Human Services Secretary Robert F. Kennedy Jr., multiple officials said. 

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All of the workers in the CDC's FOIA office were cut, two officials said. Two-thirds of the Food and Drug Administration's records request staff were also cut, down to 50 remaining. 

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Many FOIA staff at the National Institutes of Health were also let go, one official said, but not all. No explanation was given for why some were cut while others remain on the job, the official said, in an apparent violation of the federal government's procedures for prioritizing for some employees based on their military and federal service.

The goal of the cuts is to create a central place to handle FOIA requests for the entire department, an HHS official said, making it easier for the public to submit their requests. 

Read more here.

[Earlier in the day, Bloomberg News reported that the FDA, CDC, and the NIH had sacked all of their FOIA employees.]

FOIA News: This and that

FOIA News (2025)Allan BlutsteinComment
  • The FBI’s “Vault” has posted material on comedian Richard Pryor, U.S. Senator John Glenn, Defense Secretary Donald Rumsfeld.

  • Bloomberg reported that the FBI agents and FOIA staff are working overtime to review Jeffrey Epstein files.

  • See the following article for tips on making FOIA requests to improve nonprofit grant applications.

  • DOJ/OIP has collected and posted agency Chief FOIA Officer Reports for 2025 here.

  • The Office of Government Information Services has posted a profile of federal FOIA Advisory Committee member Margaret Kwoka.

FOIA News: DOGE releases records retention policy in ongoing FOIA battle

FOIA News (2025)Ryan MulveyComment

As it stands, FOIA Advisor has identified four pending lawsuits that involve a fight over whether the White House’s Department of Government Efficiency, or “DOGE,” is an “agency,” as defined at 5 U.S.C. § 552(f)(1). In one of those lawsuits—American Oversight v. U.S. DOGE—the requester has moved for a preservation order. The government filed its opposition to that motion on Thursday evening. DOGE’s argument focuses on its claimed status as a non-agency component of the Executive Office of the President, which would make it subject to the Presidential Records Act. It also highlighted existing efforts to preserve records pursuant to an official records retention policy and a litigation hold. Notably, DOGE filed a copy of its records retention policy, which appears to have gone into force at the beginning of the week—March 25, 2025.

FOIA News: Roughly 58,000 documents at issue in CREW's DOGE FOIA suit

FOIA News (2025)Ryan MulveyComment

According to a notice filed on Thursday evening, the government estimates that “approximately 58,000 documents” maintained by the U.S. DOGE Service are responsive to a FOIA request being litigated by Citizens for Responsibility & Ethics in Washington. DOGE explained it “has not yet been able to conduct a review for responsiveness, and deduplication.” The parties continue to contest whether DOGE is an “agency” for purposes of the FOIA, but the presiding judge has already denied the government’s recent motion for reconsideration on that very question, thus leaving in place a preliminary injunction compelling DOGE to process CREW’s request for the time being. FOIA Advisor has previously covered developments in this case. Just over a week ago, DOGE filed its motion for summary judgment, which should be decided on an expedited basis.