Graybill v. NSA (C.D. Cal.) -- dismissing pro se lawsuit after finding that the NSA and CIA properly invoked Exemptions 1 and 3 to support their refusals to confirm or deny the existence of records concerning plaintiff.
Summaries of all published opinions issued in 2025 are available here. Earlier opinions are available for 2024 and from 2015 to 2023.
A business professor from California State Polytechnic University has proposed the creation of n independent FOIA commission led by “FOIA Fellows—professionals from the private sector, such as technologists, lawyers, organizational managers, and journalists, who rotate into short-term government fellowships.” FOIA Fellows would be be funded “by wealthy private parties that have an interest in preserving and protecting democracy and transparency, such as individuals like Elon Musk or organizations like George Soros’ Open Society.”
See Jack Wroldsen, FOIA Fellows as Freedom Fighters: An Independent and Privately Funded FOIA Commission of Rotating Professionals (Oct. 31, 2024). 108 Marquette L. Rev. (forthcoming 2025), available at SSRN: https://ssrn.com/abstract=5043146 or http://dx.doi.org/10.2139/ssrn.5043146.
We asked federal agencies about their efforts to use AI in FOIA
By Dillon Bergin, MuckRock, Jan. 8, 2025
We want to know more about how federal agencies are using AI initiatives in the FOIA process, described in their yearly Chief FOIA Officer Reports. We’re asking them for the docs.
We’ve filed requests to several agencies for documents related to AI testing in their FOIA offices, including contracts with third party vendors and assessments or audits of the programs so far. To follow along as agencies respond, you can check out our AI in FOIA page, home to all the requests, articles and updates.
Read more here.
As 2025 gets underway, the FOIA Advisor staff is pleased to provide a summary of the most notable FOIA developments that occurred outside the courtroom in 2024. We will discuss our top 2024 court decisions in a forthcoming post.
Legislation
On June 3, 2024, U.S. Representative Mike Quigley (IL-05) re-introduced the Transparency in Government Act, H.R. 8597, which would require agencies to, among other things, post all FOIA-disclosed records online, affirmatively disclose additional records, and conduct a public interest balancing test in addition to assessing foreseeable harm. No action has been taken on the bill since its introduction and referral to several committees.
On July 23, 2024, Congressman Adam Schiff introduced the “Judicial FOIA Expansion Act,” H.R. 9108, which would permit the public to request records from federal courts through the same process used for federal agencies. The bill was referred to the House Oversight Committee on the same date. No further actions have been taken. Read FOIA Advisor’s commentary on the bill here.
Regulatory updates
By our count, four agencies proposed changes to their FOIA regulations in calendar year 2024 that have not yet been finalized: Council on Environmental Quality; Federal Election Commission; Office of the Comptroller of the Currency; and Selective Service System.
Five agencies issued final rules amending their FOIA regulations in calendar year 2024: Social Security Administration; Defense Nuclear Facilities Safety Board; Postal Regulatory Commission; Office of Management and Budget; and Peace Corps. The Department of Education and the Department of Defense also issued technical corrections in early 2024 to rules they finalized in 2023.
Federal FOIA Advisory Committee
The FOIA Advisory Committee for the 2022-2024 term wrapped up its business with the issuance of its final report on June 13, 2024. In sum, the Committee made 16 recommendations to the Archivist. Several recommendations pertained to “improvements in staffing, training, and technology.” The Committee also addessed “best practices aimed at improving dialogue with individual FOIA requesters, as well as with the FOIA community and civil society at large.”
The Committee’s 2024-2026 term convened its first two meetings in September 2024 and created three subcommittees to advance the Committee’s work: Implementation Subcommittee; Statutory Reform Subcommittee; and Volume and Frequency Subcommittee. FOIA Advisor’s Ryan Mulvey co-chairs the Statutory Reform Subcommittee.
Other agency actions
The Department of Justice announced on March 4, 2024, that federal agencies had received a record-high total of 1,122,166 requests in fiscal year 2023, a nearly 30 percent increase from FY 2022. DOJ published a more comprehensive summary of agency FY 2023 annual reports on June 7, 2024.
On March 7, 2024, the U.S. Government Accountability Office issued a report about agency FOIA backlogs.
A new search tool for law enforcement records was added to the FOIA.gov website on July 18, 2024.
The Office of Government Information Services published written recommendations on three issues in calendar year 2024: (1) Using FOIA to Access Intelligence Community Records (Dec. 9, 2024); (2) Estimated Dates of Completion Challenges Symptoms of Larger Delay Issue (Oct. 30, 2024); and (3) NCND/Glomar: When Agencies Neither Confirm Nor Deny the Existence of Records (Mar. 24, 2024).
Stories of interest
We typically do not post news stories about the filing of FOIA requests or stories that are based on records obtained via FOIA. But some are too quirky or consequential to ignore entirely. Here are a few that captured our attention in 2024.
The Heritage Foundation’s “oversight project” deluged federal agencies with thousands of FOIA requests targeting the emails of federal employees. See, e.g., Robin Bravender, Heritage Foundation’s record requests rattle feds, Greenwire, Oct. 2, 2024. A debate about Heritage’s FOIA practices ensued. Compare Lauren Harper, Heritage Foundation sends lots of FOIAs. That shouldn’t be a problem Freedom of the Press Found., Oct. 8, 2024, with Michael Ravnitzky, The Heritage Foundation’s Reckless Misuse of FOIA to Target Individuals, LLRX, Oct. 9, 2024, and Pub. Employees for Envtl. Responsibility, Press Release, Feds Should Stifle Heritage Foundation Witch Hunt, Oct. 17, 2024.
This debate occurred before the November 2024 election, so partisans might change their positions on Heritage’s tactics. Indeed, less than 48 hours after Election Day, the Sierra Club announced a “massive FOIA operation.” See Robin Bravender, Sierra Club boss vows ‘massive FOIA operation’, Greenwire, Nov. 7, 2024.
In May 2024, the U.S. House’s Select Subcommittee on the Coronavirus Pandemic disclosed evidence suggesting that NIH employees deleted messages and tried to evade FOIA. See, e.g., Benjamin Mueller, Health Officials Tried to Evade Public Records Laws, Lawmakers Say, NY Times, May 28, 2024.
The Internal Revenue Service’s online FOIA portal directs requesters to register with a private identity credentialing service, a system the IRS defended. See Rebecca Heilweil, IRS defends use of biometric verification for online FOIA filers, FedScoop, June 10, 2024.
At least twenty-one agencies, including one cabinet department, have published their fiscal year 2024 annual FOIA reports online (see below). Agencies were required to submit their annual reports to DOJ’s Office of Information Policy by November 12, 2024, and the final reports must be published online no later than March 1, 2025. FOIA Advisor will summarize the reports of the most active FOIA agencies—e.g., DHS, DOJ, DOD, NARA, etc.— as they become available. Quarterly FY 2024 data can be found on FOIA.gov.
FY 2024 annual FOIA reports
Dep’t of Commerce: 4048 requests received; 3410 processed; 1410 backlogged requests (vs. 1083 FY 23).
Pension Benefit Guaranty Corp.
Privacy & Civil Liberties Oversight Bd.
U.S. Postal Serv.: 4429 requests received; 4203 processed; 201 backlogged requests (vs. 136 FY 2023).
Federal positions closing in the next 10 days
Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11-12, White City, OR, closes 1/7/25 (non-public).
Sup. Gov’t Info Specialist, Dep’t of Educ., GS 15, Wash., DC, closes 1/8/25 (non-public).
Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Ramstein, Germany, closes 1/8/25 (non-public).
Att’y-Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 1/9/25 (public)
Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 13, nationwide, closes 1/10/25 (non-public).
Gov’t Info. Specialist, Pension Benefit Guaranty Corp., GS 12, Wash., DC, closes 1/10/25 (non-public).
Gov’t Info. Specialist, Dep’t of Agric./Forest Serv., GS 12-13, Wash., DC, closes 1/10/25 (non-public).
Gov’t Info. Specialist, Dep’t of Transportation/FMCSA, GS 9, Wash., DC, closes 1/13/25 (public).
Att’y-Advisor, Dep’t of Homeland Sec./USCG, GS 13-14, Wash., DC, closes 1/13/25 (public).
Federal positions closing on or after Jan. 16, 2025
Gov’t Info. Specialist, Dep’t of State, GS 9, Rosslyn, VA, closes 1/21/24 or first 50 applications (non-public).
Att’y Advisor, Dep’t of Justice/Pardon, GS 13-15, Wash., DC, open until filled (public).
How FOIA Gave Rise to Government Transparency Laws Around the World
Flawed as it may be, the U.S. Freedom of Information Act became a model in transparency for other countries to follow.
By Matthew Petti, Reason, Jan. 2025
It's well-known that the government heavily censors documents before declassifying them—something humorously captured by The Onion in 2005 with the headline, "CIA Realizes It's Been Using Black Highlighters All These Years." But from a glass-half-full perspective, it's incredible that the U.S. government shares information with the public at all. The original Freedom of Information Act (FOIA) of 1966—the law under which many of those redacted documents are obtained—was the "product of years of slow campaigning by a network of journalists, scientists, and politicians seeking to make the government more transparent," the historian Sam Lebovic writes in State of Silence: The Espionage Act and the Rise of America's Secrecy Regime. FOIA was later strengthened in the wake of the Watergate scandals in the 1970s.
Read more here.
Needed: A Transparency Guardian
Our FOIA system was once the world’s gold standard. Here’s how it became sclerotic—and what we need to do to fix it.
By Margaret Kwoka, Democracy, Winter 2025
* * *
When the Freedom of Information Act was enacted in 1966, it was revolutionary. Its basic premise—that ordinary citizens have a right to know what the government knows—radically reimagined the relationship between the public and the federal government. . . . But more than a half-century after Congress passed this landmark legislation, it is clear that FOIA largely has not—and cannot—live up to its mission.
The core problem is this: There is no arm of the U.S. government that champions transparency. No government agency embodies a transparency mission; no court possesses transparency expertise. FOIA provides a core right for the public to access government records, but it lacks a locus for implementation and enforcement. . . .
Read more here.
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.
TC Co. v. U.S. Forest Serv. (D.N.M.) -- concluding that: (1) plaintiff’s FOIA requests filed after the instant litigation commenced were not properly before the court; (2) agency properly relied on Exemptions 6 and 7(C) to withhold personally identifiable information about employees and third parties; (3) agency conducted adequate search for various records concerning a 2022 wildfire.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.