FOIA News: T-minus 10, 9, 8 . . .

Federal agencies have until March 1, 2025 to post their annual FOIA reports for fiscal year 2024. None of the top five active FOIA agencies have posted their reports yet, namely Homeland Security, Justice, Veterans Affairs, National Archives, or Defense. Other departments on the clock include Agriculture, Health & Human Services, Housing & Urban Development, Labor, Transportation, and Treasury.

FOIA News: Layoffs hit privacy/FOIA personnel

CNN Made FOIA Request About DOGE—Only to Learn FOIA Staff Was Fired

"Definitely never seen this type of response to a FOIA request," quipped one journalist.

By Eloise Goldsmith, Common Dreams, Feb. 18, 2025

When CNN put in a Freedom of Information Act request with the Office of Personnel Management for information related to security clearances for billionaire Elon Musk and other personnel at the so-called Department of Government Efficiency who have been allowed access to sensitive or classified government networks, the outlet got an unexpected response.

"Good luck with that, they just fired the whole privacy team," an OPM email address wrote back, according to Tuesday reporting from CNN. An OPM official told the outlet that the federal government's human resources agency did not layoff the entire privacy team, but did not comment further on the matter.

"Definitely never seen this type of response to a FOIA request," quipped CBS News journalist Jim LaPorta reacting to the news on X.

Read more here.

FOIA News: FOIA Advisory Committee meets on March 6th

The federal Freedom of Information Act Advisory Committee for the 2024-2026 term will meet on March 6, 2025, from 10 a.m. to noon EST, per a Federal Register notice published by the Office of Government Information Services on February 18, 2025. The leadership of the National Archives and Records Administration, the parent agency of OGIS, was recently forced out by the White House.

FOIA News: EEO-1 reports are exempt, argues gov’t to 9th Circuit

Feds urge Ninth Circuit to keep lid on contractor workforce data

The feds say records sought by an investigative nonprofit are commercial in nature and shouldn't be released.

By Michael Gennaro, Courthouse News Serv., Feb. 14, 2025

Federal lawyers on Friday morning asked a Ninth Circuit Court of Appeals panel to reverse a lower court's decision that it must release data on federal contractors to a San Francisco nonprofit.

The fight is specifically over EEO-1 reports. These reports reflect the breakdown by job classification of a company’s workforce by race, ethnicity, and sex.

The Center for Investigative Reporting, a San Francisco nonprofit news organization that investigates and reports on injustices in the United States, had submitted a Freedom of Information Act for reports from 2016 to 2020.

The federal government notified its employees of the request, and nearly 5,000 objected to the release of their information. The government released the remaining reports to the Center for Investigative Reporting, prompting the organization to sue in 2022 for the rest of them.

A federal judge sided with the Center for Investigative Reporting in 2023, ruling that EEO-1 reports were not exempt from disclosure under FOIA. The government appealed, arguing that they were.

Read more here.

FOIA News: Interview with Ryan Mulvey

The Office of Government Information Services has posted an interview with our own Ryan Mulvey as part of a series of OGIS posts on members of the federal FOIA Advisory Committee. Keep up the excellent work, Ryan!

FOIA News: CIA's requests ballooned in FY 2024

The Central Intelligence Agency recently posted its annual FOIA report for fiscal year 2024. Here’s a rundown of the main stats:

• 4087 requests received, a 68 percent increase from FY 2023 (2426 requests).

• 2603 requests processed, a 66 percent increase from FY 2023 (1567 requests)

• Backlogged requests increased 71 percent from 2844 at the end of FY 2023 to 4879 in FY 2024.

• The median and average response times for administrative appeals were 688 days and 838 days, respectively. up more than 40 percent from 472 median days and 586 average days in FY 2023

• The agency denied 105 of 106 requests for expedited processing; it denied 86 of 89 such requests in FY 2023.

• The agency employed 50.73 full-time FOIA staff, incurred nearly $4.7 million in processing costs, and collected zero dollars in fees; in FY 2023, it employed 64.42 fill-time FOIA staff, incurred $5.3 million in processing costs, and collected $40 in fees.

FOIA News: Registration open for next FOIA Advisory Committee meeting

Registration is now open for the next federal FOIA Advisory Committee meeting, which will be held virtually on Thursday, March 6, 2025, at 10am ET. Here are the links to the meeting materials, including registration and a livestream.

FOIA News: Oral argument in the D.C. Circuit

As we noted in our most recent monthly roundup, the U.S. Court of Appeals for the District of Columbia is scheduled to hear argument in a FOIA-related case, Am. First Legal Found. v. Dellinger, 24-5168, on Wednesday, February 12, 2025. The primary issue in dispute is whether 5 U.S.C. § 1216 compels the Office of Special Counsel to investigate any allegation of an arbitrary and capricious withholding of records under FOIA. Although subsection (a)(3) states that OSC “shall” investigate any such allegation, subsection (c) provides that OSC “may investigate and seek corrective action.”

The district court ruled in favor of the government, holding that the statute at issue authorized but did not require OSC to investigate allegations of arbitrary and capricious FOIA withholdings.

Follow the argument live here.

FOIA News: More on DOGE and the FOIA

Trump’s Declaration Allows Musk’s Efficiency Team to Skirt Open Records Laws

Government watchdog groups say they will challenge the Trump administration’s decision to put the initiative under the Presidential Records Act, which shields its work from public disclosure.

By Minho Kim, NY Times, Feb. 10, 2025

In October, Elon Musk preached the message of government transparency during a presidential campaign rally he held in Pennsylvania in support of Donald J. Trump, suggesting that nearly all government records should be made public.

“There should be no need for FOIA requests,” Mr. Musk reiterated on social media, referring to the law that gives the public the right to obtain copies of federal agency records: the Freedom of Information Act. “All government data should be default public for maximum transparency.”

But Mr. Musk's cost-cutting initiative, better known as the Department of Government Efficiency, or DOGE, appears to be heading in the opposite direction.

The White House has designated Mr. Musk’s office, United States DOGE Service, as an entity insulated from public records requests or most judicial intervention until at least 2034, by declaring the documents it produces and receives presidential records.

Read more here.

For an in-depth discussion of the relevant case law, see David Cohen, Note, FOIA in the Executive Office of the President, 21 N.Y.U. J. Legis. & Pub. Policy 203 (2018).

FOIA News: Senate bill would extend FOIA to DOGE

Scholten introduces bill to open Musk and DOGE to FOIA provisions

By Jon King, Michigan Advance, Feb. 6, 2025

U.S. Rep. Hillary Scholten (D-Grand Rapids) on Thursday introduced legislation she says will provide accountability about the actions of billionaire Elon Musk and his Department of Government Efficiency, or DOGE.

According to a press release from Scholten’s office, the Consistent Legal Expectations and Access to Records (CLEAR) Act, clarifies that temporary organizations like DOGE are subject to the Freedom of Information Act (FOIA). 

“Given the breadth of power these organizations wield, they should be subject to the same standard of scrutiny and public information sharing that other agencies are beholden to,” stated the release. 

Read more here.