FOIA News: This and that

• Tips for filing FOIA requests during a government shutdown, by Lauren Harper, Freedom of the Press Foundation.

• What Does a Government Shutdown Mean for FOIA?, by Rachel Santarsiero, Nat’l Sec. Archive.

• Professor Dru Stevenson at the South Texas College of Law has produced a series of FOIA videos on YouTube as part of his Administrative Law course. Here are videos for Exemption 1; Exemption 2; Exemption 3; Exemption 4; Exemption 5; Exemption 6; Exemption 7; Exemption 8; and Exemption 9; and Glomar responses.

• The Yale Journal on Regulation briefly discusses the D.C. Circuit’s recent reading-room decision, Campaign for Accountability v. DOJ.

Court opinions issued Oct. 17, 2025

Campaign for Accountability v. DOJ (D.C. Cir.) -- affirming in part and reversing in part the district court’s decision and holding that Office of Legal Counsel’s (OLC) opinions are not subject to FOIA’s “reading-room” disclosure requirements because they are not “final opinions made in the adjudication of cases” nor “statements of policy or interpretations adopted by the agency; vacating the district court’s order requiring disclosure of OLC opinions resolving interagency disputes, reasoning that OLC opinions offer prospective legal advice, not binding orders or adjudications, and therefore do not resolve “cases” or have determinate consequences; noting that although OLC’s opinions are considered authoritative within the Executive Branch, they are not automatically adopted as the “working law” of client agencies unless an agency actually implements them as its own; in a concurring opinion, Judge Rao emphasized that appellant lacked standing because its claims were a generalized grievance without a particularized injury or concrete harm.

Husch Blackwell LLP v. Dep’t of Commerce (D.D.C.) -- in a case concerning records on how and why the Bureau of Industry and Security added certain companies to the “Entity List,” which restricts exports to foreign entities for national security reasons, ruling that: (1) BIS had not justified its withholding under Exemption 1, because its declarations merely repeated classification language without explaining how disclosure would harm national security; and (2) although the Export Control Reform Act qualifies as an Exemption 3 statute, BIS failed to show that withheld memoranda fit within the Ac’s enumerated or closely related categories.

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 Oct. 16, 2025

Informed Consent Action Network v. FDA (D.D.C.) -- granting 18-month stay after finding that FDA’s Center for Biologics Evaluation and Research (CBER) faced exceptional circumstances, specifically “skyrocketing” requests since 2019 and litigation rates that had “exploded” in same time period; noting that agency had demonstrated due diligence through staff reallocation, new hires, and a tiered response system; further noting that plaintiff was a “major contributor to the onslaught,” having submitted more than 350 FOIA requests to CBER and accounting for two-thirds of CBER's open FOIA lawsuits.

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

FOIA News: EPA to rescind expedited processing regulation for “environmental justice”

EPA is planning to ax a public records provision that granted expedited processing for marginalized communities.

By Kevin Bogardus, E&E News, Oct. 16, 2025

EPA is preparing to jettison one of its last vestiges of the Biden administration, a rule that sped up Freedom of Information Act requests for marginalized communities burdened with pollution.

As part of President Donald Trump’s sweep of diversity programs across the federal government, the agency is planning to ax a provision added to FOIA regulations during the previous administration. That measure granted expedited processing for requests that showed an “environmental justice-related need” for records pertaining to areas suffering from adverse health and environmental impacts.

The movement to provide relief to polluted places, often occupied by people of color and low income, has become verboten during the Trump administration. The president signed an executive order on his first day back in office to rid agencies of diversity, equity and inclusion, or DEI, programs, including any “environmental justice” offices and services.

Matthew Tejada, former EPA deputy assistant administrator for environmental justice, said ending the FOIA provision would cut off another avenue for ordinary people to access their government.

“Making information requests harder to achieve both further pulls down a veil of secrecy obscuring what this administration is actually up to inside of our nation’s government while simultaneously ensuring that everyone but the most privileged in our country have few to zero means of engaging our government in a meaningful way,” said Tejada, now senior vice president for environmental health at the Natural Resources Defense Council.

Rescinding the rule fits in with a larger pattern at EPA during the Trump administration. This year, the agency canceled grants classified as DEI and closed its environmental justice office, where staff received reduction-in-force or layoff notices.

“Since day one, the Trump EPA has been crystal clear that the Biden-Harris administration shouldn’t have forced their radical agenda of wasteful DEI programs and ‘environmental justice’ preferencing on the EPA’s core mission of protecting human health and the environment,” said agency spokesperson Carolyn Holran in a statement.

EPA is already behind some deadlines on the repeal.

The agency was supposed to issue a notice of proposed rulemaking in July and a “Final Action” this month, according to the administration’s latest regulatory agenda. As of Thursday, visitors to EPA’s FOIA public access link can still ask to expedite their requests based on environmental justice.

EPA’s statement didn’t say when the regulation would be finalized and whether it would have a public comment period, as happened with its proposed rule more than two years ago.

“The government-wide Unified Agenda of Regulatory and Deregulatory Actions represents a snapshot in time, and completions dates are always subject to change,” Holran said.

EPA doesn’t often grant expedited processing under FOIA. In fiscal 2024, the agency sped up 15 requests that sought faster treatment while it denied 293 others, according to its annual report.

Allan Blutstein, a FOIA lawyer for pro-Republican research firms since 2015, opposed the environmental justice provision when it was first issued and now backs its rescission. He urged repeal of the measure in a direct message sent in February to the so-called Department of Government Efficiency team at EPA.

Blutstein said the regulation “effectively tilts the playing field in favor of certain individuals based on demographic factors, creating a form of identity politics within the FOIA process.”

He noted requests could still receive expedited processing in other ways under the public records law.

“Keep in mind that requests about pollution may still qualify for expedition under the ‘compelling need’ standard, and nothing — beyond considerations of fairness — prevents the EPA from interpreting that standard broadly in a different administration,” Blutstein said.

Read more here (with free 7-day trial).

Court opinion issued Oct. 12, 2025

Buckley v. DOJ (2nd Cir.) (unpublished) — affirming district court’s decision that: (1) the FBI properly relied on Exemptions 7(D) and 7(E) to withhold records concerning their domestic terrorism investigation of plaintiff-appellant, which concluded without charges, and (2) plaintiff-appellant was ineligible for attorneys’ fees. The Court rejected the argument that Exemption 7 was inapplicable because the records were allegedly compiled for “political reasons,” explaining that circuit precedent requires courts to presume that all investigatory records from law enforcement agencies are compiled for a law enforcement purpose. On fees, the court held that plaintiff-appellant failed to show he was a prevailing party under the catalyst theory. Notably, he failed to raise an argument in district court that earlier-submitted release forms supported his catalyst claim, thus precluding the Court from considering it on appeal.

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

FOIA News: Mini-conference with FOIA

On October 27, 2025, the Simmons Center for Information Literacy at Simmons University will host a three-hour, interactive mini-conference entitled “Information is Power: The First Amendment, Public Records, and the Press.” The Electronic Frontier Foundation’s Beryl Lipton will lead a FOIA discussion in which participants learn “how to file a FOIA request like a pro.”

See more details here.

Court opinions issued Oct. 10, 2025

Informed Consent Action Network v. Ctrs. for Disease Control & Prevention (D.D.C.) — in a case involving access to records about COVID-19 vaccines, denying the requester’s fee motion on entitlement grounds; noting the parties agree that the requester is “eligible” to receive attorney’s fees; explaining that of the four factors to be considered when determining entitlement to a fee award, “the first three . . . weigh slightly in plaintiff’s factor,” but the fourth—i.e., the “reasonableness of the agency’s withholding”—”weighs heavily against plaintiff”; with respect to the fourth factor, concluding the agency’s application of Exemption 6 to withhold the names of CDC personnel was reasonable in light of a perceived “palpable threat” to employee privacy, and danger of harassment, at the time the request was submitted, and an assessment that the asserted public interest in disclosure was minimal.

Popov. v. Dep’t of Homeland Sec. (9th Cir.) (unpublished) — affirming district court’s decision that DHS properly withheld a third party’s Alien File under Exemption 6, noting that plaintiff-appellant failed to substantiate his allegations that the third party had committed any fraud or crimes or that DHS had acted improperly.

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

FOIA News: Shutdown slows down FOIA responses

Transparency takes a hit during shutdown

Public records responses and open government websites are anticipated to stall, if not outright stop, during the lapse in funding.

By Kevin Bogardus, Greenwire, Oct. 10, 2025

Federal agencies’ regular online disclosure and routine management of the Freedom of the Information Act are expected to fade as the government shutdown lingers on.

Reviewing and redacting documents takes staff, many of whom are the first to be furloughed during a funding lapse. And as more federal employees get sent home, government websites grow glitchy and public records requests gather dust, creating an increasing pile of work that civil servants will have to slog through when they’re back on the job.

Read more here.

Court opinion issued Oct. 9, 2025

Egana v. U.S. Dep't of Treasury (W.D.N.C.) -- deciding that the Bureau of Fiscal Service performed a reasonable search for records—and found none—related to a $10,000 Series E savings bond allegedly issued in 1964 in plaintiff’s name or under a custodian, claiming entitlement to over $91,000 in value.

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 Oct. 8, 2025

N.Y. Times Co. v. U.S. Def. Counterintelligence & Sec. Agency (S.D.N.Y.) — denying the government’s motion for summary judgment and ordering the release of a “single, two-page document listing any security clearances granted to Elon Musk”; rejecting the agency’s invocation of Exemptions 6 and 7(C); with respect to Exemption 6, concluding that “substantial public interests in disclosure” outweigh Mr. Musk’s valid, albeit “limited,” privacy interests; noting Mr. Musk’s past history of “publicly discuss[ing] his drug use, NASA’s requirement that he submit to random drug testing . . . , and his contacts with foreign leaders”; explaining that the public interest in disclosure is particularly strong for two reasons, namely, (1) “the public has an interest in knowing whether the leader of SpaceX and Starlink holds the appropriate security clearances,” and (2) because “courts have repeatedly recognized a public interest in understanding the thoroughness, fairness, and accuracy of government investigations and operations”; with respect to Exemption 7(C), bypassing the threshold inquiry of whether the record at issue was “compiled for law enforcement purposes,” and holding that the balancing inquiry favors disclosure.

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