FOIA News: OGIS publishes annual records management report

OGIS Publishes Annual RMSA Report

NARA/OGIS, FOIA Ombuds, Sept. 29, 2025

Almost one fifth of federal agencies report using artificial intelligence (AI) and/or machine learning in FOIA processing and nearly half report finding records responsive to a FOIA request that were beyond their retention period. Those are among the findings in our latest report, Assessing Freedom of Information Act Compliance through the 2024 National Archives and Records Administration’s Records Management Self-Assessment. 

Data collected in the annual Records Management Self-Assessment (RMSA) helps OGIS fulfill its statutory mandate to review agency compliance with FOIA, 5 U.S.C. § 552(h)(2), and complements the observations OGIS makes as the FOIA Ombuds, working to improve the FOIA process for all. The RMSA for 2024 —administered to agency records officers between January 2025 and March 2025 by the National Archives and Records Administration’s Office of the Chief Records Officer (CRO)—included seven questions regarding FOIA administration.

Read more here.

Court opinions issued Sept. 26, 2025

Am. First Legal Found. v. Dep’t of Justice (D.D.C.) — in a case involving records about DOJ’s handling of the prosecuting and sentencing of an arsonist from the 2020 Minneapolis riots, granting in part and denying in part the parties’ cross-motions for summary judgment; concluding that a presentence investigation report (“PSR”), which originated with the U.S. Probation Office, qualified as an “agency record” under DOJ’s legal control because, inter alia, the Bureau of Prisons uses such reports for “multiple purposes post-sentencing,” and the reports are transmitted to the U.S. Parole Commission to be integrated into the “framework of executive branch decision-making”; rejecting, in this regard, DOJ’s argument that the PSR at issue ought to be sealed, as the agency failed to produce a valid sealing order, and its public referencing of the PSR in sentencing filings “waives any residual confidentiality claim[s]”; holding further, with respect to a record reflecting DOJ’s recommendation for a downward variance, that the record was properly withheld under Exemption 5, in conjunction with the deliberative-process and attorney work-product privileges, as well as Exemption7(C), and that DOJ satisfied the foreseeable-harm standard.

Grand Marina Investors v. Internal Revenue Serv. (D.D.C.) — granting the agency’s motion for summary judgment; holding, firstly, that the requester failed to administratively exhaust its challenge to the IRS’s search, in large part because the requester failed to address the issue in its summary-judgment briefing and “‘spell out its arguments squarely and distinctly’”; holding further that the IRS properly applied Exemption 3, in conjunction with I.R.C. § 6103; Exemption 5, in conjunction with the deliberative-process privilege; and Exemption 7(E); describing the requester’s argument, at various points, as “woefully underdeveloped,” “ring[ing] hallow,” and otherwise ungrounded in controlling caselaw.

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

FOIA News: DOJ asks for Rule 65 Bond in FOIA Case

DOJ asks district court to require transparency group to post $50k bond for expedited processing order

[FOIA Advisor: As some helpful background context, the asserted legal basis for DOJ’s bond demand is Federal Rule of Civil Procedure 65(c), which specifies a court “may issue a preliminary injunction or temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”]

From the September 26, 2025 issue of Politco’s “West Wing Playbook”:

DOJ WANTS $50K: DOJ is urging that a nonprofit transparency group be forced to come up with $50,000 if a court decides to accelerate the group’s Freedom of Information Act lawsuit for the classified documents stored at Trump’s Mar-a-Lago residence, Josh writes in.

DOJ lawyers’ request for the $50,000 bond came in a Washington federal court filing in the lawsuit filed by the James Madison Project and journalist BRIAN KAREM. The bond would be forfeited if a higher court decides the group’s FOIA requests should not have been allowed to jump the line.

The highly unusual request appears to stem from an executive memorandum Trump issued in March, directing DOJ to ask judges to require financial bonds from those who sue the government and seek relief at the early stages of a case.

“This is nothing short of a $50,000 shakedown demand merely to expedite release of the 'definitely not classified' records that Mr. Trump concealed from the Government at Mar-a-Lago,” one of the project’s attorneys, BRAD MOSS, said in a statement. “This is not 1920s Chicago and Mr. Trump is not Al Capone. We will not accede to this demand and we will contest it vigorously in court.”

U.S. District Judge LOREN ALIKHAN, a Biden appointee, will consider whether to expedite disclosure of the Mar-a-Lago files and how much money, if any, the group will have to come up with to speed up their requests.

Court opinions issued Sept. 25, 2025

Jones v. DOJ (D.D.C.) -- on renewed summary judgment in case concerning pro se plaintiff’s prosecution records, ruling that: (1) DOJ cured its deficient search by following an “obvious lead” to discover additional records; (2) DOJ properly relied on the attorney work-product privilege to withhold interview notes, prosecution memoranda, draft or unfiled pleadings, and case file notes; and (3) DOJ properly invoked the deliberative process privileges to withhold a prosecution memorandum used internally to help decide whether to charge plaintiff.

Power the Future v. Dep’t of the Interior (D.D.C.) -- concluding that the agency performed a reasonable search for text messages after crediting the agency’s explanation that the messages were unrecoverable due to the loss and damage of the employee’s phones and that all plausible means to retrieve the messages were attempted.

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 Sept. 24, 2025

Informed Consent Action Network v. Ctrs. for Disease Control & Prevention (D.D.C.) — denying each party’s motion for summary judgment; concluding the government had not established whether its “contract employee” functioned “just as an employee would” in a “disinterested” way; concluding further that the agency had failed to adequately demonstrate the applicability of the deliberative-process privilege and justify its segregation of factual and deliberative material; rejecting the requester’s argument that, under the foreseeable-harm standard, the potential for “public confusion” is not a recognized interest protected by the deliberative-process privilege, but also determining the government had failed to offer anything but a “boilerplate” “rationale” here for the link “between the specified harm—public confusion—and the nature of the withheld documents”; directing the parties to refile their motions, thus providing the agency “a second bite at the apple.”

Am. Oversight, Inc. v. Dep’t of Health & Human Servs. (D.D.C.) — on remand from the D.C. Circuit, 101 F.4th 909, denying the intervening U.S. House Committee on Ways & Means’s motion for summary judgment and granting the requester’s cross-motion; concluding, under the D.C. Circuit’s so-called “modified control test,” that “five sets of email communications and attachments” comprising communications between agencies and Congress about “healthcare reform legislation,” which cannot be exempt under Exemption 5, qualify as “agency records” and are not under Congress’s legal “control”; rejecting Congress’s argument that the mere affixing of an email “Legend” asserting control is adequate because it is only a “generally applicable disclaimer” without the required “specificity” to treat the records at issue as congressional in nature, and no other evidence exists to demonstrate any effort to “set parameters [reflecting Congress’s retention of control] for the information exchanged with the Agency”; noting also that the agencies conceded they had used the records “as they saw fit” for their own decision-making processes,” a fact Congress did not deny but attempted to argue should not be considered as part of the Court’s control analysis.

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

FOIA News: NARA fumbles congresswoman's military file

Archives released too much of Mikie Sherrill's military record to her opponent in governor's race

By James LaPorta, CBS News, Sept. 25, 2025

A branch of the National Archives released a mostly unredacted version of Democratic Rep. Mikie Sherrill's military records to Nicholas De Gregorio, an ally of Jack Ciattarelli, her GOP opponent in the New Jersey governor's race. The disclosure potentially violates the Privacy Act of 1974 and exemptions established under the Freedom of Information Act. 

The documents, which were also obtained by CBS News, appear to show that the National Personnel Records Center, a wing of the National Archives and Records Administration charged with maintaining personnel records for service members and civil servants of the U.S. government, released Sherrill's full military file — almost completely unredacted. CBS News discovered the egregious blunder while investigating whether Sherrill was involved in the 1994 Naval Academy scandal, in which more than 100 midshipmen were implicated in cheating on an exam. Sherrill was not accused of cheating and said her only involvement was not informing on her fellow classmates. 

The documents included Sherrill's Social Security number, which appears on almost every page, home addresses for her and her parents, life insurance information, Sherrill's performance evaluations and the nondisclosure agreement between her and the U.S. government to safeguard classified information. 

Read more here.

Jobs, jobs, jobs: Just the two of us . . .we can make it if we try

Gov’t Info. Specialist, Dep’t of Justice/OIP, GS 9-11, Wash., DC. closes 10/7/25 (non-public).

Gov’t Info. Specialist, Dep’t of Justice/OIP, GS 12-13, Wash., DC, closes 10/8/25 (non-public).

Court opinion issued Sept. 23, 2025

Gov’t Accountability & Oversight v. SEC (D.D.C.) -- partially granting SEC’s summary judgment motion in case concerning internal emails withheld under Exemption 5’s deliberative process privilege; finding that the SEC adequately justified using the privilege for records related to climate rulemaking, and adequately addressed foreseeable harm and segregability; however, the agency failed to justify withholdings for three entries vaguely described as concerning “various rulemakings.”

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

FOIA News: Monday Morning FOIA Commentary

ICE May Be Breaking the Law to Stonewall Reporters

By Dave Levinthal, Columbia Journalism Review, Sept. 22, 2025

Since late December, J. Dale Shoemaker, a reporter for the Investigative Post, a nonprofit newsroom based in Buffalo, has filed seventeen Freedom of Information Act requests with the US Immigration and Customs Enforcement and US Customs and Border Protection to guide his deep dives into federal law enforcement activity, deportation actions, and ICE detention centers in upstate New York. In return, he says, he has gotten only documents that were redacted beyond comprehension, or nothing at all. “I have not received a satisfactory response to a single one of them,” Shoemaker said.

Ryanne Mena, of the Los Angeles Daily News, sent ICE a FOIA request on January 24 for all grievance forms filed by detainees at facilities in Adelanto, California, between 2016 and early 2025. Nearly eight months later, she said, she’s received nothing: ICE “has failed to provide me with an estimated date of production despite repeated requests.”

Read more here.

FOIA follies: How the deep state avoids transparency

By Mike Chamberlain, Washington Examiner, Sept. 22, 2025

* * *

But to make FOIA requests with any frequency is to encounter a variety of glitches, delays, misunderstandings, frustrating redactions, and more. Sometimes, these incidents are simple mishaps. Other times, they look like intentional stalls and mistakes to slow the process in the hope that the requester gets discouraged and goes away.

And many do go away because when a federal agency is uncooperative with FOIA requests, the ultimate recourse is to sue. For organizations like mine, Protect the Public’s Trust, that’s part of what we do. We are built to pursue information into court. For most news organizations whose entire legal budget is reserved for libel, plagiarism, and copyright infringement (let alone for private citizens without legal budgets), the legal costs are prohibitive.

Read more here.

Court opinion issued Sept. 18, 2025

Crow Creek Sioux Tribe v. Bureau of Indian Affairs, Office of Justice Servs. (D. S.D.) -- awarding plaintiff $27,484 in attorney’s fees and costs after finding it was both eligible and entitled to such an award; as to eligibility, the court concluded that the lawsuit was the catalyst for the agency’s delayed response, noting that the agency did not begin searching for records until nearly two months after the complaint was filed and did not attempt to extend the statutory deadline; regarding entitlement, the court determined that plaintiff’s request served a significant public interest, involved no commercial motive, and that the government lacked a reasonable legal basis for the delay; lastly, the court deemed the requested fees largely reasonable, except for time spent on an unfiled summary judgment motion, which warranted a 50 percent reduction.

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