FOIA News: D.C. Circuit to hear argument on OLC legal opinions

On April 11, 2025, the U.S. Court of Appeals for the District of Columbia Circuit will hear a FOIA argument in Campaign for Accountability v. DOJ, No. 24-5163 (D.C. Cir.).

The issue on appeal is whether DOJ’s Office of Legal Counsel has an obligation under FOIA’s “reading room” provision, 5 U.S.C. § 552(a)(2), to affirmatively disclose certain legal opinions. The underlying decision authored by now-Justice Ketanji Brown Jackson held that none of the categories of OLC opinions identified by plaintiff plausibly qualified for affirmative disclosure, except for opinions that resolve disputes between federal agencies.

A livestream of three cases on the court’s calendar will begin at 9:30am EDT. The panel will include Judges Srinivasan, Rao, and Pan.

FOIA News: In the land of the blind . . .

In case you missed it, here is a link to yesterday’s FOIA hearing before the U.S. Senate Judiciary Committee, including the written statements of the three witnesses.

FOIA Commentary: Chevron, Loper, and Exemption 3

FOIA Advisor’s Ryan Mulvey wrote the following article, which was published in the Yale Journal on Regulation’s Notice & Comment blog.

Sunshine Week, Loper Bright, and FOIA

Ryan P. Mulvey, Notice & Comment, Apr. 8, 2025

The Freedom of Information Act (FOIA) is codified with the Administrative Procedure Act (APA) as part of Title 5 of the U.S. Code, and FOIA law is uncontroversially considered a subset of administrative law.  At the same time, FOIA is unique, with its own judicial review provision and standards, as well as rather unconventional litigation practice.  Some administrative law practitioners might be surprised to learn the Supreme Court’s groundbreaking decision in Loper Bright Enterprises v. Raimondo, and its overruling of Chevron deference, could be relevant to FOIA.  For that reason, and to mark last month’s celebration of Sunshine Week, I would like to explore how Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.

Read the rest here.

Court opinion issued Apr. 4, 2025

Sanders v. FBI (W.D. Wis.) -- concluding that: (1) FBI’s search for records concerning plaintiff was inadequate because the agency failed to explain why it was reasonable to search only its Central Records System; it neglected to use reasonable variations of plaintiff’s name; and it neglected to explain why its initial search yielded no records and its second (seemingly identical) search located three pages; and (2) FBI did not adequately justify its Exemption 7(C) Glomar response to portion of plaintiff’s request that sought records mentioning plaintiff and various third parties, and remarking that it wasn’t clear why redactions wouldn’t sufficiently protect third parties’ privacy interests.

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

Monthly Roundup: March 2025

Below is a summary of the notable FOIA court decisions and news from last month, as well as a look ahead to FOIA events in April.

Court decisions

We identified and posted 41 decisions in the month of March, our highest monthly count in four years (43 in March 2021). Two notable decisions issued last month emanated from one case, Citizens for Responsibility & Ethics in Wash. v. U.S. DOGE Serv., No. 25-cv-511 (D.D.C.), in which the parties dispute whether FOIA applies to the U.S. Department of Government Efficiency (USDS or DOGE). On March 10th, the court granted in part and denied in part plaintiff’s request for expedited processing and concluded from the preliminary record (mostly news sources) that DOGE exercised substantial independent authority from the President and therefore “likely” was an agency subject to FOIA. The government quickly moved for reconsideration, but the court denied the motion on March 19th, in large part because the government’s “arguments could all have been raised during the last round of briefing” and “none of them provides a basis for reconsideration.” The court acknowledged, however, that “it would be preferable . . . to review the question of whether [DOGE] is subject to the FOIA on the merits based on a more complete record,” and invited the requester to file a motion for limited discovery. On the same date, the government moved for summary judgment. See the case docket to follow subsequent proceedings.

In a less publicized but nonetheless interesting) decision, the court in Heritage Found. v. DOJ (D.D.C.) considered the meaning of a “request” for the purpose of determining whether plaintiff had exhausted its administrative remedies. Although the FBI administratively divided plaintiff’s single request for three items into three separate requests, the court held that Heritage’s overall submission constituted its FOIA request and therefore Heritage was not required to administratively appeal the FBI’s timely-issued denials for two items (and the separate denial of a fee waiver) because the FBI had failed to timely respond to the third item.

Top News

• After a nearly two-week delay in publishing data from annual agency FOIA reports, DOJ/OIP reported on March 14th that nearly 1.5 million requests had been received across the government in fiscal year 2024, up 25 percent from fiscal year 2023. DHS alone received more than 900,000 requests.

• Sunshine Week (March 16-22) included a privately organized Sunshine Fest that generated a slew of research ideas, as well as a panel discussion hosted by the National Archives. The Department of Justice’s annual event was either canceled or not public; DOJ was silent on the matter.

• DOJ/OIP issued its annual Litigation and Compliance Report on or about March 10th. Of note, requesters filed 889 FOIA lawsuits in calendar year 2024—the highest number of suits DOJ has ever reported.

• DOJ/OIP’s director, Bobak Talebian, was fired on March 8th, along with several other heads of DOJ components.

• The federal FOIA Advisory Committee for the 2024-2026 term met on March 6.

April Events

Apr. 8: Introduction to the FOIA Training,10:00am to 1:30pm EST.

Apr. 8: U.S. Senate Judiciary FOIA hearing, 10:15am EST.

Apr. 11: D.C. Circuit argument in Campaign for Accountability v. DOJ, No. 24-5163, 9:30am EST.

Apr. 16: Processing a FOIA Request from Start to Finish Training, 10:00am to 12:00pm EST.

Apr. 25: Deadline for agencies to report FY25 Q2 data.

FOIA Commentary: White House FOIA Reading Rooms

Recent media reports have included comments from the requester community about the removal of FOIA “reading rooms” from websites of those components of the Executive Office of the President (“EOP”) that qualify as “agencies,” as defined by Section 552(f)(1). Although these electronic libraries were inexplicably unavailable for several weeks—arguably, in violation of the FOIA’s proactive disclosure requirements—all FOIA landing pages have been restored.

There are five EOP “agencies” subject to FOIA. Links to their FOIA pages are provided below.

1. Office of Management and Budget (“OMB”)

2. Council on Environmental Quality (“CEQ”)

3. Office of Science and Technology Policy (“OSTP”)

4. Office of National Drug Control Policy (“ONDCP”)

5. Office of the U.S. Trade Representative (“USTR”)

To be sure, not all of these components have equally robust reading rooms. All the components have FOIA webpages with details about submitting requests. Further research could reveal whether archived reading rooms from prior Administrations contained more information. At the least, though, the availability of these pages and the restoration of electronic libraries is a promising step towards full FOIA compliance.

[N.B. See our links to all agency Reading Rooms here.]

FOIA News: Racket News Story on HHS Layoffs Quotes Allan Blutstein

Timeline: Cutbacks at HHS

By Greg Collard and James Rushmore, Racket News, Apr. 4, 2025

We want to give attention to FOIA staff cuts at HHS, as public records are a key component of our Racket Library.

Staff who fulfill public records requests took a huge hit in RFK Jr’s reorganization.

…

In any case, expect a much longer wait for any public records, says attorney Allan Blutstein of FOIA Advisor:

The records that are of public interest will remain undisclosed, and for longer periods. I suspect what staff remains is likely to be focused on litigation because it’s much easier to ignore a FOIA requester than a plaintiff in court. So unless your request is in litigation, you’ll be likely further back in the processing que and the delays will just intensify.

Read more.

FOIA News: Further details emerge about HHS FOIA reorganization

Kennedy shutters several FOIA offices at HHS

By Ben Johansen, Politico, Apr. 3, 2025

Officials at the Department of Health and Human Services this week shut down several offices tasked with Freedom of Information Act requests, a step billed as consolidation that could weaken transparency as the crucial agency undergoes an unprecedented overhaul, according to four people familiar with the cuts who were granted anonymity to speak freely.

The Centers for Disease Control and Prevention was among the agencies that had its FOIA office eliminated late Monday night, according to a synopsis of the cuts shared at a CDC staff meeting Tuesday and seen by POLITICO.

Each agency, such as the CDC and FDA, had its own individual FOIA offices, which received thousands of requests per year. Now, in accordance with Secretary Robert F. Kennedy Jr.’s reconstruction of the department, HHS will consolidate its FOIA requests into one HHS-wide office, according to a senior HHS official who was granted anonymity to discuss ongoing deliberations. Next steps are still in flux.

Read more here.

FOIA News: IRS FOIA Backlog Expected to Grow

IRS FOIA Backlog Expected to Grow

By Lauren Loricchio & Amanda Athanasiou, TaxNotes, Apr. 3, 2025

The backlog of Freedom of Information Act requests at the IRS and Treasury is expected to increase during President Trump’s second term, amid mounting concerns about the administration’s transparency.

“There was a pretty healthy increase in the volume of FOIA requests” during Trump’s first term, said Matt Topic of Loevy & Loevy.

Topic, an attorney who specializes in FOIA litigation, said the first Trump administration failed to do what was necessary to keep up with the volume of requests, and the Biden administration “did absolutely nothing to fix those backlogs.”

The COVID-19 pandemic also contributed to FOIA backlogs at the IRS and other federal agencies.

The number of FOIA requests backlogged at the IRS as of the end of the fiscal year (from the previous annual Treasury FOIA report) has varied, increasing from 605 in 2008 to 916 in 2024, according to data on FOIA.gov. In 2008 there were 1,297 backlogged requests at the end of the fiscal year at Treasury, and in 2024 there were 2,468.

“Backlogs have been a long-standing issue,” Chioma Chukwu of government watchdog American Oversight said, adding that President Obama signed the FOIA Improvement Act of 2016, which hasn’t “helped with the backlog in the way one would have thought.”

“It’s still too early to tell how things will play out, but we have reason to believe it will be infinitely worse in the second [Trump] administration,” Chukwu said.

Read more here. [NB: This article contains multiple quotes from FOIA Advisor’s own Ryan Mulvey.]

FOIA News: Federal judge enters preservation order in DOGE FOIA case

On April 2, 2025, Judge Beryl Howell, who sits on the U.S. District Court for the District of Columbia, granted American Oversight’s motion for a preservation order in American Oversight v. U.S. Department of Government Efficiency, one of several lawsuits challenging the status of DOGE as an “agency” for purposes of the FOIA. As FOIA Advisor previously reported, DOGE released a copy of its records retention policy under the Presidential Records Act as part of its opposition to American Oversight’s motion.

Among other things, Judge Howell explained in her minute order that, “[n]otwithstanding the fact that DOGE has issued a litigation hold,” its personnel “‘may not fully appreciate their obligations to preserve federal records,’ under either the FOIA or the Presidential Records Act, as ‘many of [the] staffers are reported to have joined the federal government only recently and . . . may not be steeped in its document retention policies,’ . . . which, under FOIA, reaches even those government records stored on private devices[.]” She also noted that “[a]dditional concerns arise due to the fact that DOGE ‘operat[es] with unusual secrecy,’ which includes the use of ‘Signal, an encrypted messaging app with an auto-delete function,’ . . . and has refused to stipulate to its preservation obligations of documents that are at the heart of this litigation.” Finally, Judge Howell reasoned that, “to the extent that DOGE insists that this entity's compliance with the Presidential Records Act . . . is sufficient compliance with preservation obligations in this case” that “only confirms plaintiff's concern about the need for a preservation order since . . . what qualifies as a record and the respective retention obligations differ between the PRA and the FOIA[.]” Moreover, “DOGE's actual compliance with PRA record retention obligations mitigates any burden of DOGE also complying with obligations to preserve records at issue in this case and prevent spoliation of records and information during the pendency of this litigation.”