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.
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