Monthly Roundup: Feb. 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 March.

Court decisions

We identified and posted 24 decisions in the month of February. Of note, the D.C. Circuit concluded in McWatters v. ATF that the government properly relied on Exemption 7(C) to withhold portions of an audio recording capturing the sounds of a nightclub fire in which 100 people died. In reaching its decision, the court credited ATF’s explanation that disclosure of the recording could harm the privacy interests of the living members of the deceased and rejected plaintiff’s main argument that no sounds could be traced to any identifiable person. And in Energy & Policy Inst. v. Tenn. Valley Auth. (E.D. Tenn.), the district court found that plaintiff was ineligible for attorney’s fees and costs even though the agency withdrew its Exemption 4 withholdings after litigation started. In so ruling, the court accepted the government’s argument that a business submitter, not the agency, changed its position on the confidential nature of the withheld records.

Top news

• FOIA personnel did not escape the layoffs initiated in February by the Department of Government Efficiency.

• Speaking of DOGE, the DOJ noted in litigation that DOGE’s records are not subject to FOIA.

• Earlier in the month, a Senate Democrat introduced a bill that would extend FOIA to DOGE.

• Many agencies posted their FY 2024 annual reports in February, with notable exceptions including DHS, DOJ, NARA, Veteran Affairs, Energy, and Treasury.

March calendar

Mar. 1: Deadline for agencies to post FY 2024 annual reports

Mar. 6: FOIA Advisory Committee meeting.

Mar. 16: Sunshine Week begins

Mar. 17: DOJ Sunshine Week event; agencies must post Chief FOIA Officer Reports on their websites.

Mar. 19: NARA Sunshine Week event.

Mar. 20: Sunshine Fest conference, Washington DC.

Mar. 22: Sunshine Fest 2025, Chicago, IL. Last day of Sunshine Week.

Monthly Roundup: January 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 February.

Court decisions

We identified and posted 12 decisions in the month of January. Of note, the U.S. Court of Appeals for the District of Columbia Circuit held in Human Rights Def. Ctr v. U.S. Park Police that a district court had no inherent judicial authority to prevent a FOIA requester from disclosing, disseminating, or making use of Exemption 6-protected information that the agency inadvertently released. In reaching its decision, the D.C. Circuit acknowledged but gave no weight to a 2022 Tenth Circuit ruling that affirmed a district court’s “clawback” order. The D.C. Circuit expressed no opinion as to whether a court may claw back inadvertently released documents that are “subject to any independent legal prohibition on disclosure such as applies to classified documents”; it also declined to consider appellant’s argument that the district court’s order violated the First Amendment.

In a less significant (but arguably more entertaining) decision, a court in the Northern District of Illinois rebuked the U.S. Immigration for Customs Enforcement for redacting information from a publicly filed document readily available on a public docket. The court pulled no punches in its opinion, stating that the redactions were “egregious,” “ludicrous” “preposterous,” and a “blatant misuse of exemptions” that “defies comprehension” and “screams of bad faith.” See Stevens v. HHS (N.D. Ill.).

Top news

• FOIA reading rooms went offline at several agencies, including OSTP, OMB, CEQ, following President Trump’s inauguration on January 20, 2025.

• A White House-ordered hiring freeze has significantly reduced the number of available government FOIA jobs.

• The sponsors of Sunshine Week announced an in-person FOIA conference on March 19-20.

• DOJ/OIP posted two ”updated” sections of the FOIA Guide: Exemption 4 and Reverse FOIA.

February calendar

Feb. 4: D.C. Circuit hears argument in Hettena v. CIA, No. 24-5110, a case in which appellant disputes the agency’s redactions to a 2005 OIG report about the death of a suspected Iraqi terrorist at Abu Ghraib prison.

Feb. 5: DOJ/OIP’s virtual Advanced Freedom of Information Act Training for government employees and contractors.

Feb. 7: Deadline for agencies receiving 50 requests or less in fiscal year 2023 that choose to report to submit their Chief FOIA Officer Report to OIP.

Feb. 12: D.C. Circuit hears argument in Am. First Legal Found. v. Dellinger, 24-5168, which raises the issue of whether 5 U.S.C. § 1216(c) compels the Office of Special Counsel to investigate any allegation of an arbitrary and capricious withholding of records under FOIA.

Monthly Roundup: Dec. 2024

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 January.

Court decisions

We identified and posted 14 decisions in December. Of note was Am. First Legal Found. v. DHS (D.D.C.), a split Exemption 7(C) and 7(E) decision involving data about enforcement actions taken against certain non-citizens. With respect to Exemption 7(C), the court ruled that the U.S. Immigration and Customs Enforcement properly withheld names of non-citizens, docket numbers, and full dates of birth, but that it had not justified the blanket withholding of birth months and years, residential addresses by city, state, and country, or gag, cartel, terrorist group affiliations, and monikers. In reaching its decision, the court rejected plaintiff’s threshold argument that non-citizens have no privacy rights under FOIA, noting that plaintiff’s position was unsupported by the statute’s text and case law and would lead to absurd results. As for Exemption 7(E), the court determined that ICE properly withheld precise addresses where at-large, non-citizens could be located, but it failed to justify withholding city, state, and country data. Further, the court found that ICE properly withheld operational details about its past and future attempts to locate non-citizens, as well as “‘apprehension locations of non-citizens attempting to enter the U.S. illegally”; however, ICE fell short with respect to its Exemption 7(E) withholdings of the names of gang, cartel, and terrorist group affiliations, and monikers.

Top news

On December 9, 2024, the Office of Government Information Services issued recommendations on intelligence community records.

The FOIA Advisory Committee for the 2024-2026 term met for the third time on Dec. 5, 2024,

January calendar

Jan. 13, 2025: Deadline for agencies receiving more than 50 requests in FY 2023 to submit their 2025 Chief FOIA Officer Reports to DOJ.

Jan. 14, 2025: D.C. Circuit oral argument in McWatters v. ATF, 24-5083.

Jan, 15, 2025: DOJ Exemption 4 and Exemption 5 Training

Jan. 22, 2025: DOJ Privacy Considerations Training

Jan. 29, 2025: DOJ Administrative Appeals, FOIA Compliance, and Customer Service Training

Jan. 31, 2025: Agency deadline to post FY 2025, Quarter 1 data.