FOIA News: Yale journal analyzes recent Fifth Circuit decision

Texas Public Policy Foundation v. Department of State and Its Potential Unanticipated Consequences

By Bernard Bell, Yale L.J. on Regs., Notice & Comment, June 9, 2025

Recently, as noted in this blog, a Fifth Circuit panel considered whether the names and email addresses of low-level federal employees who worked on climate change issues must be provided to a Freedom of Information Act (“FOIA”) requester.  The divided panel issued a strong pro-transparency decision, concluding that government employees, even low-level ones, generally lack a privacy interest in their identities and official email accounts.  Texas Public Policy Foundation v. Department of State, 136 F.4th 554, 2025 WL 1287890 (May 5, 2025).  Indeed, the information requested would enable the public to learn the “seniority, backgrounds, and areas of expertise” of employees who contributed to the development of an important public policy, furthering FOIA’s transparency goals.[1] 

However, the Fifth Circuit’s decision may produce unanticipated anti-transparency consequences.  It may enhance the government’s justification for withholding records prepared as a part of developing public policy under FOIA Exemption 5’s deliberative process privilege.  And such potential consequences take on special meaning in the context of the “foreseeable harm standard” of disclosure added to FOIA in 2016, FOIA Improvements Act of 2016, Pub. L. 114-186, §2, 130 Stat. 538, 539 (codified at 5 U.S.C 552(8)(A)(i)(I)). Under that standard, agencies must disclose records falling within FOIA’s exemptions unless their release risk the types of harms the exemption was designed to prevent.  See, OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard[2]  Ultimately, then, the Fifth Circuit panel’s decision may result in less, not more, transparency.

Read more here.

FOIA News: Tesla claims its crash data is protected under Exemption 4

Tesla Moves to Shield Crash Data from Public Disclosure, Citing Competitive Risk

By Samir Gautam, Techstory, June 8, 2025

In a move that underscores the increasing tension between corporate secrecy and public transparency, Tesla Inc. has formally requested a U.S. federal judge to block the release of certain vehicle crash data maintained by the National Highway Traffic Safety Administration (NHTSA). The electric vehicle (EV) giant claims that disclosing the data could provide competitors with insights into Tesla’s proprietary technology, causing significant commercial damage.

Read more here.

FOIA News: DOJ seeks to dismiss NYT suit for Mar-a-Lago report

‘Conflicting court orders’: Trump admin moves to dismiss FOIA lawsuit for Jack Smith’s Mar-a-Lago report because ‘Judge Cannon’s injunction’ is still in effect

By Colin Kalmbacher, Law & Crime, June 7, 2025

The U.S. Department of Justice on Friday filed a motion to dismiss a Freedom of Information Act (FOIA) lawsuit aimed at unearthing the second volume of former special counsel Jack Smith’s final report on the Mar-a-Lago investigation into President Donald Trump.

The underlying litigation is a relatively terse five-page lawsuit filed in January by The New York Times and one of their reporters.

The plaintiffs accuse the DOJ of failing to make a determination for expedited processing of their FOIA request for the second volume of the Smith report – within the timeline mandated by federal law.

Now, the Trump administration, in no uncertain terms, wants to wash its hands of the matter and have the lawsuit dismissed. The filing also offers itself as, in the alternative, a motion for summary judgment.

Read more here.

FOIA News: SCOTUS limits discovery request against DOGE

Supreme Court limits outside access to DOGE records

The high court said a judge’s directive allowing a watchdog group to examine DOGE’s recommendations for cost savings at executive branch agencies was “not appropriately tailored.”

By Josh Gerstein, Politico, June 6, 2025

The Supreme Court has reined in a lower-court order that allowed a watchdog group wide-ranging access to records of the Trump administration’s Department of Government Efficiency.

The high court’s majority said a judge’s directive allowing Citizens for Responsibility and Ethics in Washington to examine DOGE’s recommendations for cost savings at executive branch agencies was “not appropriately tailored.”

In a two-page order Friday, the Supreme Court said such access was not a proper way to resolve an ongoing dispute about whether DOGE is a federal agency subject to the Freedom of Information Act or operates as a presidential advisory body that does not have to share its records with the public.

Read more here.

Court opinion issued June 2, 2025

Pomares v. U.S. Dep't of Veterans Affairs (S.D. Cal.) -- on reversal and remand from the Ninth Circuit, ruling that: (1) agency properly reprocessed email messages and released certain names that had been redacted under Exemption 6; (2) agency properly relied on Exemptions 6 and 7(C) to withhold names and personal information of third parties that appeared in Inspector General interview transcripts, which agency had previously withheld in full pursuant to Exemption 7(E); (3) agency failed to sufficiently demonstrate that it processed all exhibits referenced in the interview transcripts; and (4) court would not consider two new arguments raised for the first time in plaintiff’s reply brief, nor would it grant plaintiff’s discovery request.

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

Monthly roundup: May 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 June.

Court decisions

We identified and posted eight opinions in May, a rather lethargic total for federal courts. Of note, the U.S. Court of Appeals for the Fifth Circuit held, in a split 2-1 decision, that the State Department failed to show that Exemption 6 protected the names and work email addresses of employees who had worked on President Biden’s emissions reduction target for the Paris Agreement. See Texas Pub. Policy Found. v. U.S. Dep’t of State (5th Cir.). In addition to these eight opinions, the U.S. Supreme Court stayed a district court’s order requiring DOGE to respond to discovery requests in a FOIA case.

Top news

• Bloomberg uncovered and reported a wild story about two OPEXUS employees who tampered with agency FOIA databases in February 2025.

• OGIS issued its annual report to Congress on May 21, 2025.

• On May 20, 2025, DOJ released the full audio of Joe Biden’s interview with special counsel Robert Hur following a FOIA litigation battle. All the major headlines, however, went to Axios several days earlier when it published a leaked audio clip.

June events

June 3-5: Graduate School USA, Freedom of Information and Privacy Acts course

June 4: DOJ/OIP Exemption 1 and Exemption 7 Training, 10:00am-12:15pm

June 12: FOIA Advisory Committee meeting, 10:00am-noon

June 12: Digital Gov’t Inst., Artificial Intelligence & Machine Learning in Records Mgmt., 12:30pm-3:00pm.

June 17: DOJ/OIP Exemption 4 and Exemption 5 Training, 10:00am-12:15pm

June 17: ARC, Navigating Public Record Requests: Minimizing Barriers to Client Records, 1:00pm

Court opinion issued May 29, 2025

Biear v. Attorney Gen. (3rd Cir.) (per curiam) -- affirming district court’s decision to deny pro se requester’s motion to reopen FOIA case and concluding that that FBI and Criminal Division complied with district court’s orders to release supplemental information material.

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

Court opinions issued May 27, 2025

Libarov v. ICE (7th Cir.) -- affirming district court’s decision and holding that: (1) requester was not entitled to a declaratory judgment that ICE violated FOIA for missing statutory response deadline; (2) district court did not clearly err in ruling—after in camera review—that Exemption 7(A) protected investigatory information concerning requester’s sham marriage; and (3) requester could not maintain an Administrative Procedure Act claim against ICE for an alleged policy of delaying FOIA responses, because FOIA provided an adequate remedy.

Alper v. DOJ (D.D.C.) -- ruling that: (1) FBI could not rely on Exemption 7(A) to withhold in full all records concerning plaintiff, a death-row inmate who murdered a sheriff’s deputy in 1995, because agency failed to show how disclosure of records would compromise government’s position at two pending enforcement proceedings; (2) FBI properly relied on Exemption 7(C) to withhold identities of FBI personnel, other law enforcement personnel, and civilian third parties; (3) FBI did not show that Exemption 7(D) protected information about cooperative efforts provided by a foreign law enforcement agency more than 30 years ago; (4) FBI properly invoked Exemption 7(E) to withheld identities of investigative databases it used, but a discrepancy with agency’s Vaughn Index precluded use of same exemption to withhold documents requesting assistance from foreign law enforcement agency; and (5) FBI properly invoked Exemption 5’s attorney-client privilege to withhold communications between DOJ counsel and an FBI special agent regarding legal guidance.

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

FOIA News: SCOTUS pauses DOGE discovery

US Supreme Court temporarily halts access sought by watchdog group to DOGE records

• Watchdog group sought records on DOGE's operations

• Lower court found DOGE is likely subject to FOIA law

By Andrew Chung, Reuters, May 23, 2025

The U.S. Supreme Court on Friday temporarily paused judicial orders requiring the Department of Government Efficiency, established by President Donald Trump and spearheaded by his billionaire adviser Elon Musk, to turn over records and answer questions in the coming days and weeks concerning its operations.

The court put on hold Washington-based U.S. District Judge Christopher Cooper's orders for DOGE to respond to a government watchdog group's requests for information after finding that DOGE likely is a government agency covered by the federal Freedom of Information Act.

Read more here.

FOIA News: OGIS reminds agencies to update OIP-run website

In a memo sent to agencies on May 20, 2025, the Office of Government Information Services asked Chief FOIA Officers and FOIA Officers to update their contact information in the directory of FOIA.gov, which is maintained by DOJ’s Office of Information Policy. The memo was prompted by the likelihood of “a number of staffing changes . . . in FOIA programs this year.” Those changes prominently include the dismissal of OIP’s director in March.