FOIA Advisor

FOIA News: Exemption 4 and Public-Private Partnerships

FOIA News (2025)Allan BlutsteinComment

Public Money, Private Secrets: Rethinking FOIA in the Age of Public-Private Governance

By Morton Katz, Law & Political Econ. Project, Nov. 25, 2025

Public-private partnerships are, as the saying goes, kind of a big deal. By “public-private partnerships,” I mean arrangements where private, usually corporate, actors work with the government to accomplish a common public good. They take two main forms: contracting, where private firms carry out government tasks, and regulation, where the government relies on private disclosures and compliance systems to pursue public interests like safety or fairness.

Read more here.

Court opinions issued Nov. 24, 2025

Court Opinions (2025)Allan BlutsteinComment

Bermudez v. EOIR (5th Cir.) (unpublished) -- affirming district court’s denial of plaintiff’s motion for attorney fees and rejecting plaintiff’s argument that the Circuit’s two-prong eligibility and entitlement test had been reversed by the U.S. Supreme Court.

Democracy Forward Found. v. DOJ (D.D.C.) -- finding that with limited exceptions, plaintiff demonstrated that its requests for records concerning DOJ’s handling of files related to Jeffrey Epstein investigation qualified for expedited review under agency regulation as a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.”

Ball v. DOJ (D.D.C.) -- denying plaintiff-inmate’s motion to add Executive Office of U.S. Attorneys in an amended Complaint, because the proposed claim was barred by both claim preclusion and issue preclusion based on earlier litigation.

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

FOIA News: Culturally sensitive FOIA exemption introduced

FOIA News (2025)Allan BlutsteinComment

Leger Fernández Introduces Bill to Protect Sacred Tribal Sites and Cultural Items and Practices from Public Disclosure

Press Release, Rep. Teresa Leger Fernandez, Nov. 24, 2025

SANTA FE, NM — Congresswoman Teresa Leger Fernández (D-NM) introduced H.R. 6206, the Protect Culturally Sensitive Information Act to make sure Native American Tribes, Alaska Native Entities, and Native Hawaiian Organizations can share sacred and culturally important information with the federal government without fear that it will be made public under the Freedom of Information Act (FOIA). 

The bill also creates a safe, confidential space for consultation so tribes can protect information about sacred and religiously significant sites, burial grounds, cultural items, and traditional practices. It closes long-standing gaps in federal law that put these places and traditions at risk, while still keeping the transparency families expect from their government. Importantly, this legislation does not require tribes to share additional or unnecessary information.

Read more here.

Follow H.R. 6206 here.

Court opinions issued Nov. 20, 2025

Court Opinions (2025)Allan BlutsteinComment

Nat’l Ass’n of Criminal Def. Lawyers v. BOP (D.D.C.) -- in case involving records about prosecutors’ access to emails of inmates, finding that: (1) most of the government’s searches were adequately described and reasonably performed, but the search in the Eastern District of Pennsylvania lacked essential information about the search methodology and Michigan’s declaration conflicted with the Vaughn index; (2) the government’s Exemption 4 claim failed because the government did not clearly show that a vendor’s records concerning the BOP’s messaging system were both customarily and actually treated as confidential; (3) the government properly relied on the deliberative process privilege for many of its claimed withholdings, but a few records were not clearly liked to a specific decision-making process; (4) the government could not rely on the attorney work-product privilege to withhold records that discussed only policy or administrative matters without a reasonable anticipation of litigation; and (5) BOP properly redacted its Special Investigative Supervisors Manual under Exemptions 7(E) and 7(F), finding that disclosure could reveal law enforcement techniques or could jeopardize inmate and staff safety.

Project for Privacy & Surveillance Accountability v. DOJ (D.D.C.) -- holding that the FBI properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of requested records “discussing the use of authority under the Foreign Intelligence Surveillance Act . . . to investigate attendees of President Trump’s Save America Rally and multiple Black Lives Matter events in Washington, D.C. in 2021”; rejecting plaintiff’s argument that FBI waived its Glomar response via public disclosures.

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

FOIA News: Nominations open for worst agency responses in 2025

FOIA News (2025)Allan BlutsteinComment

It’s time to name and shame: Let us know 2025’s worst transparency offenders with a Foilies nomination!

Brought to you by the Electronic Frontier Foundation and MuckRock, the Foilies “honor” the institutions and individuals most determined to keep the public in the dark.

By Michael Morisy, MuckRock, Nov. 18, 2025

It’s that magical time of year again: Foilies submissions are open, giving requesters and transparency fans a chance to highlight agencies, organizations and individuals that blocked (or tried to block) access to information that the public has a right to get.

Since 2015, the Electronic Frontier Foundation has sought to “honor” those that have gone above and beyond when it comes to restricting access to information. Previous winners of these tongue-in-cheek awards include vandals who stuffed cow manure and pasta in the mailbox of a requester they did not like, U.S. Southern Command for surrealist redaction art that ventured into absurdism and the NSA’s technical difficulties digitizing a historic lecture.

EFF and MuckRock will review the entries as well as other lowlights from the world of transparency and publish the “winners” to kick off Sunshine Week 2026.

Read more here.

FOIA News: FOIA suit for judicial records ill-conceived, opines Fix the Court

FOIA News (2025)Allan BlutsteinComment

Parts of the Judiciary Should Be Subject to FOIA. But This Lawsuit Isn't the Way to Do It

By Gabe Roth, Fix the Court, Nov. 19, 2025

Under seemingly everyone’s understanding of federal open records laws — namely FOIA — the judiciary is exempt from them.

That is, everyone but America First Legal, which is suing the judiciary over an unanswered FOIA that concerns correspondence the Administrative Office of the U.S. Courts and the Judicial Conference purportedly had with Democratic members of Congress over recent SCOTUS ethics scandals.

The irony of this request is that, in the end, the AO and Judicial Conference ran interference for primary offender, deciding to drop the complaint against Justice Thomas for not reporting decades worth of gifts, free vacations and other perks on his financial disclosures. (Fix the Court is on record supporting a fine for Thomas’ omissions under the Ethics in Government Act and creating an enforceable ethics regime down the line but opposing harsher penalties like criminal liability or impeachment.)

AFL’s argument in the suit — D.D.C. Judge Trevor McFadden held a hearing today on the AO/JCUS motion to dismiss — boils down to its belief that when Congress, in 5 U.S.C. §551(1)(B), exempted “the courts of the United States” from FOIA, it was not exempting the ancillary bodies within the judicial branch that perform administrative functions, like the AO and JCUS.

Read more here.