Department of Justice Guide to the Freedom of Information Act

Litigation Considerations
The discussion below will follow a rough chronology of a typical FOIA lawsuit –
from the threshold question of whether jurisdictional prerequisites have been met, to
considerations concerning appeal.
Jurisdiction
The United States district courts are vested with exclusive original jurisdiction over
FOIA cases by section (a)(4)(B) of the Act, which provides in pertinent part:
On complaint, the district court of the United States . . . has jurisdiction to
enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the
complainant. 1

5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017); see also Frazier v. U.S., 683 F. App'x 938,
940 (Fed. Cir. 2017) (agreeing with Court of Federal Claims that it "does not have
jurisdiction over claimed violations of the Privacy Act or FOIA because those statutes do not
contain money-mandating provisions"); Searles v. U.S., No. 18-955, 2018 WL 5730275, at
*4 (Fed. Cl. Nov. 2, 2018) (holding that "the Court of Federal Claims does not retain
jurisdiction over violations of the FOIA"); Conner v. U.S., 641 F. App'x 972, 975 (Fed. Cir.
2016) ("agree[ing] with the Claims Court that it lacks jurisdiction over . . . Freedom of
Information Act claims . . . because the federal district courts possess exclusive jurisdiction
over such matters"); Toomer v. McDonald, 783 F.3d 1229, 1235 (Fed. Cir. 2015) (agreeing
that "'[w]hether the VA complied with its obligation to respond to a FOIA request is a
matter outside of the Veterans Court's jurisdiction' because review of an agency's
compliance with a FOIA request is vested in the district courts by statute"); In re
Lucabaugh, 262 B.R. 900, 905 (E.D. Pa. 2000) (finding FOIA claims insufficient to confer
jurisdiction on bankruptcy court). But cf. U.S. Ass'n of Imps. of Textiles & Apparel v. United
States, 366 F. Supp. 2d 1280, 1283 n.2 (Ct. Int'l Trade 2005) (concluding that Court of
International Trade has jurisdiction under 28 U.S.C. § 1581(i) to consider claims implicating
FOIA's affirmative publication provisions, 5 U.S.C. § 552(a)(1)-(2)).
1

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

This provision has been held to govern judicial review under all three of the FOIA's
access provisions, although as discussed below, this provision has been found by the Court
of Appeals for the District of Columbia Circuit to limit the relief that can be afforded under
the FOIA (see Litigation Considerations, Relief, below). 2 The FOIA's statutory language,
as the Supreme Court ruled in Kissinger v. Reporters Committee for Freedom of the Press,
makes federal jurisdiction dependent upon a showing that an agency has (1) "improperly,"
(2) "withheld," (3) "agency records." 3 As a consequence, courts have found that a plaintiff
who does not allege any improper withholding of agency records fails to state a claim over
which a court has subject matter jurisdiction within the meaning of Rule 12(b)(1) of the
Federal Rules of Civil Procedure 4 or, alternatively, fails to state a claim upon which relief
could be granted under Rule 12(b)(6). 5 Regardless of the exact legal basis used, however,
See Am. Mail Line v. Gulick, 411 F.2d 696, 701 (D.C. Cir. 1969) ("The only viable
interpretation of this paragraph is that the judicial process is available to compel the
disclosure of agency records not made available under paragraphs (1) and (2) [the
affirmative disclosure sections of FOIA] as well as the agency records referred to in
paragraph (3)"); accord Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d
1191, 1202 (D.C. Cir. 1996) (finding that FOIA's "remedial provision, § 552(a)(4), governs
judicial review of all three types of documents," but also finding that relief afforded under
FOIA is limited to "production" of agency documents to individual complainant).
2

3

445 U.S. 136, 150 (1980).

See, e.g., Earle v. Holder, No. 11-5280, 2012 WL 1450574, at *1 (D.C. Cir. Apr. 20, 2012)
(affirming district court's dismissal of FOIA claims because complaint "did not allege that
agency records were withheld"); Segal v. Whitmyre, No. 04-80795, 2005 WL 1406171, at *3
(S.D. Fla. Apr. 6, 2005) (finding lack of jurisdiction over FOIA claim because plaintiff failed
to allege improper withholding of agency records); Ellis v. IRS, No. 02-1976, 2003 U.S. Dist.
LEXIS 24829, at *11 (D. Colo. Dec. 29, 2003) (dismissing claim for lack of subject matter
jurisdiction because all documents were released prior to lawsuit); Armstead v. Gray, No. 303-1350, 2003 WL 21730737, at *1-2 (N.D. Tex. July 23, 2003) (finding no basis for
jurisdiction under FOIA when plaintiff alleged only that agency employees "improperly
accessed" plaintiff's records); Tota v. United States, No. 99-0445E, 2000 WL 1160477, at *2
(W.D.N.Y. July 31, 2000) (dismissing claim for lack of subject matter jurisdiction because
the "[p]laintiff has not provided any evidence that the FBI improperly withheld any agency
records"); Shafmaster Fishing Co. v. United States, 814 F. Supp. 182, 184 (D.N.H. 1993)
("The court thus lacks subject matter jurisdiction if the information was properly withheld
under FOIA exemptions."); see also Goldgar v. Office of Admin., 26 F.3d 32, 34 (5th Cir.
1994) (per curiam) (pointing out that where agency had no records responsive to plaintiff's
request, court had no jurisdiction under FOIA); Rae v. Hawk, No. 98-1099, slip op. at 3
(D.D.C. Mar. 7, 2001) (finding no subject matter jurisdiction over claims against agencies
that received no FOIA request from plaintiff); Unigard Ins. Co. v. Dep't of the Treasury, 997
F. Supp. 1339, 1341 (S.D. Cal. 1997) ("The court presumes a lack of jurisdiction until the
party asserting [it] proves otherwise.").
4

Carroll v. SSA, No. 11-3005, 2012 WL 1454858, at *2 (D. Md. Apr. 24, 2012) (dismissing
for failure to state claim because plaintiff's complaint did not describe records sought nor
provide details "of the refusal to turn over the requested information"); Mace v. EEOC, 37 F.
5

2

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

if an agency has not improperly withheld records, courts have dismissed the FOIA suit. 6
Additionally, if a requester files suit before the expiration of the statutory deadline to
respond to the request, courts have dismissed the suit, even if the agency still has failed
to respond to the request after the deadline has expired because "the Court will only
consider those facts and circumstances that existed at the time of the filing of the
complaint, and not subsequent events." 7
Supp. 2d 1144, 1146 (E.D. Mo. 1999) (deciding that dismissal for lack of jurisdiction was
"inappropriate," but that dismissal for failure to state claim was applicable because court
lacked further jurisdiction to grant relief), aff'd, 197 F.3d 329 (8th Cir. 1999); Prado v.
Ilchert, No. 95-1497, 1997 WL 383239, at *3 (N.D. Cal. June 10, 1997) (dismissing for failure
to state claim upon which relief can be granted under FOIA when agency to which request
was made lacked responsive records).
See, e.g., Kissinger, 445 U.S. at 139 ("When an agency has demonstrated that it has not
'withheld' requested records in violation of the standards established by Congress, the
federal courts have no authority to order the production of such records under the FOIA.");
Bloom v. SSA, 72 F. App'x 733, 735 (10th Cir. 2003) (finding that once documents were
released, "there existed no 'case or controversy' sufficient to confer subject matter
jurisdiction on the federal court"); Caracciolo v. U.S. Merit Sys. Prot. Bd., No. 07-3487,
2008 WL 2622826, at *2 (S.D.N.Y. July 3, 2008) (dismissing plaintiff's complaint because
agency demonstrated that it did not withhold any records responsive to plaintiff's FOIA
request); Hoff v. DOJ, No. 07-094, 2007 WL 4165162, at *3 (S.D. Ohio Nov. 19, 2007)
(granting motion to dismiss for lack of subject matter jurisdiction because agency
established that it possessed no responsive records and plaintiff provided no evidence that
agency maintained any responsive records); Harris v. DOJ, No. 06-1806, 2007 WL
3015246, at *4-5 (N.D. Tex. Oct. 12, 2007) (court lacks subject matter jurisdiction because
"Plaintiff has failed to point to evidence in the record which controverts Defendant's
evidence that it did not improperly withhold any agency records"); cf. Richardson v. Bd. Of
Governors of Fed. Reserve Sys., 248 F.Supp.3d 91, 103 (D.D.C. 2017) (noting that plaintiff
filed no FOIA request and finding that court does not have jurisdiction under FOIA based
on plaintiff's claim that his 'personal privacy interests are protected by two provisions of
FOIA, exemptions 6 and 7(C)'").
6

Judicial Watch, Inc. v. FBI, No. 01-1216, slip op. at 8 (D.D.C. July 26, 2002) (citing
Judicial Watch, Inc. v. DOJ, No. 97-2089, slip op. at 11 (D.D.C. July 14, 1998) (citing, in
turn, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) ("The existence of
federal jurisdiction ordinarily depends on the facts as they exist when the complaint is
filed."))); see also Rush v. FBI, No. 09-0955, 2009 WL 1438241, at *1 (D.D.C. May 31, 2009)
(dismissing complaint because it was filed before defendant's deadline to respond to FOIA
request); Said v. Gonzales, No. 06-986, 2007 WL 2789344, at *6 (W.D. Wa. Sept. 24, 2007)
(dismissing FOIA claims as complaint was filed prematurely); cf. Dorn v. Comm'r, No.
2:03CV539, 2005 WL 1126653, at *3-4 (M.D. Fla. May 12, 2005) (dismissing lawsuit where
complaint was filed prematurely, even though agency ultimately responded after twenty-day
period), reconsideration denied, 2005 WL 2248857 (M.D. Fla. June 1, 2005). But cf.
Judicial Watch, Inc. v. DOE, 191 F. Supp. 2d 138, 139 (D.D.C. 2002) (permitting premature
complaint to be cured by filing of "supplemental" complaint).
7

3

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

If an agency does not have possession or control of the requested record, courts
have held that there was no improper withholding. 8 At the same time, however, an
agency's failure to consider those records that came into its possession or were created
after receipt of a FOIA request, but prior to the start of the search for records, may be
considered an improper withholding. 9 (For a further discussion of "cut-off" dates, see
See DOJ v. Tax Analysts, 492 U.S. 136, 145 (1989) (finding that agency must be in control
of records requested when FOIA request made and "[b]y control [the court] mean[s] that
the materials have come into the agency's possession in the legitimate conduct of its official
duties"); DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015) (finding FOIA's disclosure
requirements not violated "because the agency is not obligated, nor is it able, to disclose a
record it does not have"); Lechliter v. Rumsfeld, 182 F. App'x 113, 116 (3d Cir. 2006)
(finding no improper withholding where agency destroyed documents for reason that "'is
not itself suspect'" (citing SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)));
Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (finding no remedy for records destroyed
prior to FOIA request); Zaldivar v. VA, No. 14-01493, 2015 WL 6468207, at *5 (D. Ariz. Oct.
27, 2015) ("When an agency does not possess a record or document, it cannot be claimed
that the document was improperly withheld."); Cambrel v. Fulwood, No. 09-1930, 2011 U.S.
Dist. LEXIS 115458, at *12 (M.D. Pa. Oct. 6, 2011) (noting that Courts "cannot mandate the
production of documents the agencies do not have in their custody or control at the time of
the FOIA request"); Sliney v. BOP, No. 04-1812, 2005 WL 839540, at *5 (D.D.C. Apr. 11,
2005) ("The fact that the agency once possessed documents that have been destroyed does
not preclude the entry of summary judgment for the agency."); Piper v. DOJ, 294 F. Supp.
2d 16, 22 (D.D.C. 2003) ("FOIA does not impose a document retention requirement on
government agencies."), reconsideration denied, 312 F. Supp. 2d 17 (D.D.C. 2004); Folstad
v. Bd. of Governors of the Fed. Reserve Sys., No. 1:99-124, 1999 U.S. Dist. LEXIS 17852, at
*5 (W.D. Mich. Nov. 16, 1999) (declaring that FOIA "does not independently impose a
retention obligation on the agency" and that "[e]ven if the agency failed to keep documents
that it should have kept, that failure would create neither responsibility under FOIA to
reconstruct those documents nor liability for the lapse"), aff'd, 234 F.3d 1268 (6th Cir.
2000) (unpublished table decision); cf. Kissinger, 445 U.S. at 155 n.9 (“[T]here is no FOIA
obligation to retain records prior to [receipt of a FOIA] request."); Wilbur v. CIA, 355 F.3d
675, 678 (D.C. Cir. 2004) (per curiam) ("[T]he fact that responsive documents once existed
does not mean that they remain in the [agency's] custody today or that the [agency] had a
duty under FOIA to retain the records."); Blanton v. DOJ, 182 F. Supp. 2d 81, 85 (D.D.C.
2002) (rejecting plaintiff's contention that agency should have contacted former employees
about location of responsive records, and awarding agency summary judgment), aff'd, 64 F.
App'x 787 (D.C. Cir. 2003) (per curiam), reh'g en banc denied, Nos. 02-5115, 02-5296 (D.C.
Cir. July 22, 2003). But see Cal-Almond, Inc. v. USDA, No. 89-574, slip op. at 2-3 (E.D. Cal.
Mar. 12, 1993) (ruling that when agency returned requested records which were disclosable
to submitter four days after denying requester's administrative appeal, in violation of its
own records-retention requirements, agency must seek return of records from submitter for
disclosure to requester), appeal dismissed per stipulation, No. 93-16727 (9th Cir. Oct. 26,
1994).
8

See Pub. Citizen v. DOS, 276 F.3d 634, 643-44 (D.C. Cir. 2002) (refusing to approve
agency's "date-of-request cut-off" policy for identifying responsive records, and pointing out
9

4

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Procedural Requirements, Searching for Responsive Records, above. For further
discussions on determining the scope of a FOIA request, see Procedural Requirements,
Proper FOIA Requests, above; and Procedural Requirements, Searching for Responsive
Records, above.)
The FOIA provides jurisdiction over records held by federal agencies and does not
extend to other entities or to individuals. 10 (For further discussions of the terms "agency"
that it effectively results in withholding of potentially large number of relevant agency
records).
See, e.g., Taitz v. Ruemmler, No. 11-5306, 2012 WL 1922284, at *1 (D.C. Cir. May 25,
2012) (holding that FOIA does not apply to White House Counsel's Office); Drake v. Obama,
664 F.3d 774, 785 (9th Cir. 2011) (finding that FOIA does not apply to any defendants as
they are individuals, not agencies); Citizens for Responsibility & Ethics in Wash. v. Office of
Admin., 566 F.3d 219, 224 (D.C. Cir. 2009) (holding that Office of Administration "lacks
substantial independent authority" and so is not "agency" subject to FOIA); Megibow v.
Clerk of U.S. Tax Court, 432 F.3d 387, 388 (2d Cir. 2005) (ruling that United States Tax
Court is not subject to FOIA); Blankenship v. Claus, 149 F. App'x 897, 898 (11th Cir. 2005)
(affirming dismissal of FOIA claim brought against state authority); Wright v. Curry, 122 F.
App'x 724, 725 (5th Cir. 2004) (emphasizing that FOIA "applies to federal agencies, not
state agencies"); United States v. Alcorn, 6 F. App'x 315, 316-17 (6th Cir. 2001) (affirming
dismissal of FOIA claim against district court "because the federal courts are specifically
excluded from FOIA's definition of 'agency'"); McDonnell v. Clinton, 132 F.3d 1481, 1481
(D.C. Cir. 1997) (dismissing FOIA claim brought solely against the President) (unpublished
table decision); Ortez v. Wash. Cnty., 88 F.3d 804, 811 (9th Cir. 1996) (dismissing FOIA
claims against county and county officials); Mabie v. USMS, No. 18-1276, 2018 WL 4401752,
at *1 (S.D. Ill. Sept. 14, 2018) (finding no jurisdiction over withholdings by city jail and
police department and that "state or local governments are not subject to the FOIA just
because they receive grants or other funds from the federal government or work with the
federal government"); Isiwele v. HHS, 85 F. Supp. 3d 337, 353 (D.D.C. 2015) (stating that
"the FOIA does not apply to the Administrative Office of the United States Courts because it
is an arm of the judicial branch, which is not subject to the FOIA"); Voigt v. Muffenbier, No.
11-89, 2012 WL 90486, at *2 (D.N.D. Jan. 11, 2012) (finding that FOIA does not create
private cause of action against individuals); Elec. Priv. Info. Ctr. v. NSA, 795 F. Supp. 2d 85,
91 (D.D.C. 2011) (finding that D.C. Circuit has "unambiguously held that the [National
Security Council] NSC is not an agency subject to the FOIA."); Hossein v. City of Southfield,
No. 11-12947, 2011 U.S. Dist. LEXIS 129481, at *1 (E.D. Mich. Nov. 9, 2011) (holding that
FOIA does not apply to State agencies and courts); Cruz v. Superior Court Judges, No. 3:04CV-1103, 2006 WL 547930, at *1 (D. Conn. Mar. 1, 2006) (holding that municipal police
department is not subject to FOIA); Davis v. Johnson, No. 05-2060, 2005 U.S. Dist. LEXIS
12475, at *1 (N.D. Cal. June 20, 2005) (disallowing FOIA claim against deputy public
defender who represented plaintiff in state criminal trial); Allnutt v. DOJ, 99 F. Supp. 2d
673, 678 (D. Md. 2000) (ruling that trustees of bankruptcy estates are "private" and thus are
not subject to FOIA), aff'd sub. nom. Allnutt v. Handler, 8 F. App'x 225 (4th Cir. 2001). But
see Moye, O'Brien, O'Rourke, Hogan & Pickert v. National R.R. Passenger Corp., No. 6:02CV-126, 2003 WL 21146674, at *6 (M.D. Fla. May 13, 2003) ("Although Amtrak is not a
federal agency, it must comply with FOIA pursuant to statute."), rev'd & remanded on other
10

5

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

and "agency records," see Procedural Requirements, Entities Subject to the FOIA, above;
and Procedural Requirements, "Agency Records," above.)
Whether an agency has "improperly" withheld records usually turns on whether
one or more exemptions apply to the documents at issue. 11 If the agency can establish
that no responsive records exist, have been destroyed, or transferred, then courts have
found that there is no "improper" withholding. 12 The same is true if all responsive records
have been released in full to the requester. 13

grounds, 116 F. App'x 251 (11th Cir. 2004); cf., Sierra Club v. TVA, 905 F. Supp. 2d 356, 363
(D.D.C. 2012) (finding that venue and personal jurisdiction are separate and that "§
552(a)(4)(B) does not give the Court personal jurisdiction over [the Tennessee Valley
Authority (a wholly owned government corporation)]").
See Tax Analysts, 492 U.S. at 151 (generalizing that "agency records which do not fall
within one of the exemptions are improperly withheld"); Abraham & Rose, P.L.C. v. United
States, 138 F.2d 1075, 1078 (6th Cir. 1998) (indicating that agency denying FOIA request
bears burden of establishing that requested information falls within exemption and
remanding case for consideration of appropriate exemptions).
11

See, e.g., Perales v. DEA, 21 F. App'x 473, 474 (7th Cir. 2001) (affirming dismissal because
information requested does not exist); Coal. on Political Assassinations v. DOD, 12 F. App'x
13, 14 (D.C. Cir. 2001) (granting summary judgment in favor of agency finding no improper
withholding where potentially responsive records have either been destroyed or transferred
to NARA prior to FOIA request being filed); Jones, 41 F.3d, at 249 (finding no improper
withholding when records were destroyed prior to FOIA request); Burr v. Huff, No. 04-C53, 2004 WL 253345, at *2 (W.D. Wis. Feb. 6, 2004) ("If no documents exist, nothing can
be withheld, and jurisdiction cannot be established."), aff'd, 112 F. App'x 537, 537-38 (7th
Cir. Oct. 14, 2004); cf. Hardway v. CIA, 384 F.Supp.3d 67, 76 (D.D.C. 2019) (holding that
"FOIA does not permit plaintiffs to demand "proof" that particular records they requested
were destroyed, or otherwise dictate how defendants carry out searches for responsive
records").
12

See, e.g., Gabel v. Comm'r, No. 94-16245, 1995 WL 267203, at *2 (9th Cir. May 5, 1995)
(finding no improper withholding because "it was uncontested" that agency provided
complete response to request); Ferranti v. Gilfillan, No. 04-cv-339, 2005 WL 1366446, at *2
(D. Conn. May 31, 2005) (dismissing suit for lack of jurisdiction after agency fully released
all requested records); Reg'l Mgmt. Corp. v. Legal Servs. Corp., 10 F. Supp. 2d 565, 573-74
(D.S.C. 1998) (concluding that "no case or controversy exists" because agency produced all
requested documents), aff'd in part & remanded in part on other grounds, 186 F.3d 457 (4th
Cir. 1999); cf. Martinez v. BOP, 444 F.3d 620, 624 (D.C. Cir. 2006) (holding that agency
fulfilled its FOIA obligations by affording prisoner-plaintiff "meaningful opportunity to
review" his presentence reports and to take notes on them); Howell v. DOJ, No. 04-0479,
2006 WL 890674, at *2 (D.D.C. Apr. 4, 2006) (finding no improper withholding where,
pursuant to Federal Bureau of Prisons policy, inmate was afforded opportunity to review his
presentence investigation report (citing Martinez)).
13

6

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The Supreme Court has held that an agency has not improperly withheld records
when it is prohibited from disclosing them by a preexisting court order. 14 While it has
been held that the validity of such a preexisting court order does not depend upon whether
it is based upon FOIA exemptions, 15 the D.C. Circuit has held that it is the agency's burden
to demonstrate that the order was intended to operate as an injunction against the agency,
rather than as a mere court seal. 16
Further, courts have declined to order disclosure of information to a FOIA
requester with a special restriction, either explicit or implicit, that the requester not
further disseminate the information received. 17 As the Supreme Court explained: "There
See, e.g., GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 387 (1980) ("To construe
the lawful obedience of an injunction issued by a federal district court with jurisdiction to
enter such a decree as 'improperly' withholding documents under the Freedom of
Information Act would do violence to the common understanding of the term 'improperly'
and would extend the Act well beyond the intent of Congress."); Freeman v. DOJ, 723 F.
Supp. 1115, 1120 (D. Md. 1988) (refusing to order release of records covered by preexisting
nondisclosure order of sister district court).
14

See Wagar v. DOJ, 846 F.2d 1040, 1047 (6th Cir. 1988) (holding that validity of
nondisclosure orders does not depend on their being based on FOIA exemptions).
15

Morgan v. DOJ, 923 F.2d 195, 197 (D.C. Cir. 1991) ("[T]he proper test for determining
whether an agency improperly withholds records under seal is whether the seal, like an
injunction, prohibits the agency from disclosing the records."); see, e.g., Judicial Watch v.
DOJ, 813 F.3d 380, 383-84 (D.C. Cir. 2016) (vacating district court's judgment and
remanding to give defendant opportunity to seek clarification on intended effect and scope
of sealing order because "[a]n ambiguous court order does not protect a record from
disclosure pursuant to the FOIA"); Odle v. DOJ, No. 05-2771, 2006 WL 1344813, at *14
(N.D. Cal. May 17, 2006) (concluding that agency may not withhold information pursuant to
sealing order unless that court order prohibits disclosure in response to FOIA requests);
Gerstein v. DOJ, No. 03-04893, slip op. at 10-11 (N.D. Cal. Sept. 30, 2005) (determining
that sealing orders pertaining to search and seizure warrants prohibited FOIA disclosure,
because they were intended to prevent investigative targets "from learning about the
warrant[s]"); McDonnell Douglas Corp. v. NASA, No. 91-3134, slip op. at 1-2 (D.D.C. July
12, 1993) ("While this court's sealing Order temporarily precluded release, that order was
not intended to operate as the functional equivalent of an injunction prohibiting release. It
was only approved by the court for the purposes of expediting this litigation and protecting
information . . . until this lawsuit was resolved.").
16

See, e.g., Chin v. U.S. Dep't of the Air Force, No. 99-3127, 2000 WL 960515, at *2 (5th Cir.
June 15, 2000) (refusing to allow disclosure of exempt information under protective order);
Raher v. BOP, 749 F. Supp. 2d 1148, 1162 (D. Or. 2010) (stating that release of records
subject to protective order would place agency "in the untenable position of having to
enforce any violation . . . and claw back any unwarranted disclosure"); Schiffer v. FBI, 78
F.3d 1405, 1411 (9th Cir. 1996) (overruling district court's order limiting access to persons
other than plaintiff because "such action is not authorized by FOIA"); cf. Maricopa Audulon
Soc. v. U.S. Forest Serv., 108 F.3d 1082, 1088-89 (9th Cir. 1997) (rejecting, as irrelevant,
17

7

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

is no mechanism under FOIA for a protective order allowing only the requester to see
whether the information bears out his theory, or for proscribing its general
dissemination." 18
In a decision involving a somewhat related issue, the Court of Appeals for the
Eighth Circuit upheld the removal of a state FOIA case to a federal court because the
records at issue actually belonged to the United States Attorney's Office, which had
intervened to protect its interests. 19 The Eighth Circuit explained that not only does the
federal removal statute, 28 U.S.C. § 1442(a)(1),20 establish an independent basis for
federal court jurisdiction, but the FOIA itself raises a "colorable defense" to the state
action. 21
Standing
In order to establish standing to bring an action under the FOIA an individual must
show that they made a request for records that was improperly denied. 22
plaintiff's offer to agree not to further disclose requested information: "FOIA does not
permit selective disclosure of information only to certain parties . . . . [O]nce the
information is disclosed to [this requester], it must also be made available to all members of
the public who request it.").
18

NARA v. Favish, 541 U.S. 157, 174 (2004).

See United States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001) (finding "colorable defense"
based on FOIA, which justified removal); see also, e.g., Brady-Lunny v. Massey, 185 F. Supp.
2d 928, 930 & 932 (C.D. Ill. 2002) (indicating that United States removed state FOIA case
pursuant to "federal question doctrine," and ultimately finding that information at issue was
exempt under FOIA and therefore should not be disclosed).
19

20

(2019).

21

245 F.3d at 693.

See Pub. Citizen v. DOJ, 491 U.S. 440, 449 (1989) (analogizing in non-FOIA case that all
that is required to establish standing under FOIA is for requesters to show "that they sought
and were denied specific agency records"); United States v. Richardson, 418 U.S. 166, 204
(1974) ("[T]he Freedom of Information Act creates a private cause of action for the benefit
of persons who have requested certain records from a public agency and whose request has
been denied."); Prisology, Inc. v. BOP, 852 F.3d 1114, 1117 (D.C. Cir. 2017) (finding that
plaintiff lacked standing because it failed to allege an 'injury in fact' through the denial of a
FOIA request); Slaughter v. NSA, No. 15-5047, 2015 WL 7180511, at *2 (3d Cir. Nov. 16,
2015) ("In effect, the agency's adverse decision to a FOIA request satisfies the injury-in-fact
requirement of standing for the requester."); Zivotofsky, 444 F.3d 617-18 (analogizing FOIA
standing requirements in non-FOIA case stating that "[a] requester is injured-in-fact for
standing purposes because he did not get what the statute entitled him to receive");
McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir. 1993) ("The filing of a request, and
its denial, is the factor that distinguishes the harm suffered by the plaintiff in an FOIA case
22

8

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

As a general rule, only the person who submitted a FOIA request at the
administrative level can be the proper party plaintiff in any subsequent court action based
on that request. 23 Courts have denied standing to clients where "an attorney makes a
[FOIA] request for documents that are of interest to her client, but does not indicate that
the request is being made on the client's behalf." 24 Similarly, a plaintiff has been found
from the harm incurred by the general public arising from deprivation of the potential
benefits accruing from the information sought."); Halperin v. CIA, 629 F.2d 144, 152 (D.C.
Cir. 1980) (finding that plaintiff lacked standing because he did not allege an injury which
was not common to all members of public); The Sierra Club v. EPA, 75 F. Supp. 3d 1125,
1138 (N.D. Cal. 2014) (finding that "any person who submits a FOIA request has standing to
bring a FOIA challenge in federal court if the request is denied in whole or part (citing
Richardson, 418 U.S. at 204)); Three Forks Ranch Corp. v. Bureau of Land Mgmt., 358 F.
Supp. 2d 1, (D.D.C. 2005) ("Any person who submitted a request for existing documents
that the petitioned agency denied has standing to bring a FOIA challenge."); cf. Nat. Sec.
Counselors v. CIA, 898 F. Supp. 2d 233, 254 (D.D.C. 2012) ("An agency's duties under the
FOIA are triggered by a properly framed request for information, and the agency's
obligations flowing from that request are with respect to 'the requester' of information").
See Wingate v. DHS, No. 11-223, 2012 U.S. Dist. LEXIS 75270, at *3-8 (M.D. Fla. May 31,
2012) (concluding that plaintiffs lack standing where they "were not mentioned by name in
the FOIA requests or related correspondence with the agency"); Abuhouran v. Dep't of
State, 843 F. Supp. 2d 73, 77 (D.D.C. 2012) (dismissing amended complaint brought by
plaintiff's sister for lack of standing where "she was not a party to the underlying FOIA
request"); Fieger v. FEC, 690 F. Supp. 2d 644, 649 (E.D. Mich. 2010) ("A plaintiff who has
neither made a request for information on his own nor explicitly through counsel cannot
show an injury in fact."); Fieger v. FEC, 690 F. Supp. 2d 644, 650-51 (D. Mich. 2010)
(concluding that plaintiff lacked standing in FOIA action because "there is no evidence
presented that the named plaintiff ever requested information from the FEC, or that
information was requested on his behalf" and noting that requester "cannot [later attempt
to] confer standing that did not exist when lawsuit commenced"); Cherry v. FCC, No. 09680, 2009 U.S. Dist. LEXIS 112276, at *7 (M.D. Fla. Dec. 3, 2009) (accepting finding of
magistrate that plaintiff "lacks standing to bring the FOIA Complaint because the relevant
FOIA requests did not disclose [him] as an interested party"); SAE Prods. v. FBI, 589 F.
Supp. 2d 76, 79-82 (D.D.C. 2008) (dismissing FOIA claim on basis that plaintiff lacked
standing to pursue judicial review because individual who made FOIA requests did not
clearly indicate that he was doing so on behalf of plaintiff corporation); United States v.
Trenk, No. 06-1004, 2006 WL 3359725, at *9 (D.N.J. Nov. 20, 2006) (concluding that
plaintiff lacks standing to bring FOIA action because "[h]is name does not appear on the
document requests, and he is not the client for which the requests were made"); But cf. A
Better Way for BPA v. DOE, 2018 WL 2376165 (9th Cir. May 25, 2018) (finding that "the
submitted form's unambiguous reference to plaintiff" in the Organization field and
defendant's acknowledgement of plaintiff in confirming correspondence "make clear that
plaintiff was the requester and consequently has standing to sue").
23

Smallwood v. DOJ, 266 F. Supp. 3d 217, 218 (D.D.C. 2017); see also Slaughter, 2015 WL
7180511, at *1 (dismissing plaintiff for lack of standing where plaintiff's attorney submitted
request in his own name without explaining that requests were submitted on plaintiff's
24

9

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

to lack standing where she attempted to initiate a lawsuit under the FOIA for claims
arising from a FOIA request made by someone else who had attempted to assign their
right to litigate to the plaintiff. 25 Courts have allowed assignments of requester's statutory
rights in certain limited circumstances, such as the death of the original requester after a
lawsuit has been initiated 26 or where the employee of the requester who sent in the
request changes employment. 27 Additionally, in situations where an agency has treated
an unnamed party to the original request as a requester, at least one court has found that
the agency may be precluded from arguing that that unnamed party lacks standing. 28
Venue and Removal
The venue provision of the FOIA provides requesters with a broad choice of forums
in which to bring suit. Specifically, the requester can bring his or her action in the district
where the requester resides, the district where the requester has his or her principle place
behalf); The Haskell Co. v. DOJ, No. 05-1110, 2006 WL 627156, at *2 (D.D.C. Mar. 13,
2006) (dismissing case because plaintiff had no standing to sue agency on FOIA request
submitted solely by its law firm); Three Forks Ranch Corp., 358 F. Supp. 2d at 2 (holding
that "a FOIA request made by an attorney must clearly indicate that it is being made 'on
behalf of' the corporation to give that corporation standing to bring a FOIA challenge");
Mahtesian v. OPM, 388 F. Supp. 2d 1047, 1050 (N.D. Cal. 2005) (finding that attorney's
reference to anonymous client in FOIA request does not confer standing on that client).
Feinman v. FBI, 680 F. Supp. 2d 169, 176 (D.D.C. 2010) (finding that "institutional
regularity at the administrative level weighs against permitting pre-litigation assignments of
FOIA rights" and concluding that plaintiff lacks standing because there is no indication "(1)
that the requester is unable to pursue her own litigation or (2) that the original requester
shares the same interests and purposes as the plaintiff-assignee"), appeal dismissed, 598 F.
App'x 15 (D.C. Cir. 2015).
25

See Sinito v. DOJ, 176 F.3d 512, 516 (D.C. Cir 1999) (finding FOIA lawsuits may survive
death of requester and substitution can be made if successor can "adequately represent the
interests of the deceased party" as outlined under Fed. R. Civ. Pro. 25).
26

See Nat. Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 257-59 (D.D.C. 2012) (holding that
assignment of FOIA rights permissible "when the sole reason for the assignment is to keep a
request with the person or persons who have assumed stewardship of that request").
27

See The Sierra Club v. EPA, 75 F. Supp. 3d 1125, 1138-40 (N.D. Cal. 2014) (holding that
"[a]lthough Sierra Club was not named in the initial request, . . . the correspondence
between the EPA and Plaintiffs, and the EPA's subsequent actions in this case, sufficiently
identify Sierra Club as an interested party to the initial FOIA request" and therefore, Sierra
Club "meet[s] the standing requirements"); Olsen v. Dep't of Transp. Fed. Transit Admin.,
No. 02-00673, 2002 WL 31738794, at *2 n.2 (N.D. Cal. Dec. 2, 2002) (declining to find lack
of standing when plaintiff was not identified by his attorney in initial request, because
agency's administrative appeal response itself acknowledged plaintiff's identity).
28

10

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

of business, the district where the records are located, or the District of Columbia. 29 When
a requester sues in a jurisdiction other than the District of Columbia, however, he is
obliged to allege the nexus giving rise to proper venue in that other jurisdiction. 30 Largely
due to the statutory designation of the District of Columbia as an appropriate forum for
any FOIA action, 31 the District Court for the District of Columbia and the Court of Appeals

29

See 5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017).

See Rosiere v. U.S., 693 Fed.Appx. 556, 557 (9th Cir. 2017) (affirming district court's
determination that District of Hawaii is not proper venue because requester resides in
Nevada and records are located in Colorado, New Jersey, and Washington, D.C.); Friends of
the River v. U.S. Army Corps of Engineers, No. 16-05052, 2016 WL 6873467 (N.D. Cal. Nov.
22, 2016) (granting transfer request because "the responsive documents are, in fact, entirely
located in [another] district" and "there is no reasonable expectation that relevant agency
records would be maintained . . in this District); Alldredge v. NSA, No. 15-3638, 2015 U.S.
Dist. LEXIS 149073, at *3 (N.D. Cal. Nov. 2, 2015) (dismissing plaintiff's complaint because
"[p]laintiff is incarcerated in the Eastern District of California and there is no indication that
the records are located in this district"); Fleming v. Medicare Freedom of Info. Grp., No. 15594, 2015 WL 4365283, at *1 (D. Minn. July 13, 2015) (rejecting plaintiff's argument "that
even if the records are not physically located here, they are accessible electronically and
therefore present in this district for purposes of FOIA" and also finding that plaintiff's "place
of . . . imprisonment . . . is not her residence" because "involuntary and temporary detention
is insufficient to establish residence in the district of incarceration"); Bosman v. United
States, No. 12-1320, 2012 WL 1747972, at *2-3 (N.D. Cal. May 15, 2012) (discussing
difference between "domicile" and "residence," and finding that FOIA "look[s] only to
'residence'" for venue purposes); Brehm v. DOJ Office of Info. & Privacy, 591 F. Supp. 2d
772, 773 (E.D. Pa. 2008) (dismissing complaint as plaintiff neither resides nor has principal
place of business in court's district and disputed records are also not located in court's
district); O'Neill v. DOJ, No. 05-0306, 2007 WL 983143, at *7 (E.D. Wis. Mar. 26, 2007)
(concluding that venue is proper because one of disputed documents is located in court's
district and because agency withdrew venue argument with respect to three other disputed
documents); Gaylor v. DOJ, No. 05-CV-414, 2006 WL 1644681, at *1 (D.N.H. June 14,
2006) (finding venue lacking in New Hampshire, where plaintiff, who claimed to be
resident of Texas, was incarcerated and was general partner in company that was no longer
in good standing in New Hampshire); Schwarz v. IRS, 998 F. Supp. 201, 203 (N.D.N.Y.
1998) (finding venue improper where agency maintains regional office unless substantial
part of activity complained of also occurred there), appeal dismissed for lack of merit, No.
98-6065 (2d Cir. July 30, 1998).
30

See 5 U.S.C. § 552(a)(4)(B). See generally Akutowicz v. United States, 859 F.2d 1122, 1126
(2d Cir. 1988) (finding District of Columbia sole appropriate forum when requester resides
and works outside United States and records requested are located in District of Columbia);
Arevalo-Franco v. INS, 889 F.2d 589, 590-91 (5th Cir. 1989) (ruling that aliens should be
treated same as United States citizens for venue purposes and therefore that resident alien
may bring FOIA suit in district where he in fact resides).
31

11

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

for the District of Columbia Circuit have, over the years, decided a great many of the
leading cases under the FOIA. 32
The judicial doctrine of forum non conveniens, as codified in 28 U.S.C. § 1404(a),33
can permit the transfer of a FOIA case to a different judicial district even if the plaintiff's
chosen venue is proper. 34 The courts have invoked this doctrine to transfer FOIA cases
under a variety of circumstances. 35 Similarly, when the requested records are the subject
See, e.g., Gaylor, 2006 WL 1644681, at *1 (transferring suit to District Court for District of
Columbia, because of its "special expertise in FOIA matters"); Matlack, Inc. v. EPA, 868 F.
Supp. 627, 630 (D. Del. 1994) ("The United States Court of Appeals for the District of
Columbia Circuit has long been on the leading edge of interpreting the parameters of what a
federal agency must disclose and may withhold consistent with the terms of FOIA.").
32

33

(2019).

See generally Ross v. Reno, No. 95-CV-1088, 1996 WL 612457, at *3-4 (E.D.N.Y. Aug. 13,
1996) (discussing factors in favor of and in opposition to transfer of case to neighboring
jurisdiction).
34

See, e.g., Ohio State Univ. Moritz College of Law Civil Clinic v. CBP, No. 14-2329, 2015
WL 1928736, at *2 (S. D. Ohio Apr. 28, 2015) (granting defendant's motion to transfer
because "[t]wo of the three parties to this litigation, as well as the documents responsive to
Plaintiffs' FOIA request, are located in the Northern District of Ohio" and "in camera review
is a distinct possibility" and not allowing the transfer "could create unnecessary practical
issues"); Our Children's Earth Found. v. EPA, No. 08-01461, 2008 WL 3181583, at *7 (N.D.
Cal. Aug. 4, 2008) (granting defendants' motion for transfer of venue to District of Hawaii
because "instant case could have been filed as a crossclaim" in existing lawsuit in Hawaii);
Carpenter v. DOJ, No. 3:05-CV-172, 2005 WL 1290678, at *2 (D. Conn. Apr. 28, 2005)
(transferring FOIA suit to district in which plaintiff's criminal case was pending, because
request sought records from that proceeding); Cecola v. FBI, No. 94 C 4866, 1995 WL
645620, at *3 (N.D. Ill. Nov. 1, 1995) (transferring remainder of case to district where
remaining records and government's declarant are located, where plaintiff operates
business, and where activities described in requested records presumably took place);
Southmountain Coal Co. v. Mine Safety & Health Admin., No. 94-0110, slip op. at 2-3
(D.D.C. Mar. 10, 1994) (justifying transfer of suit to district where corporate requester
resides and has principal place of business and where criminal case on which request is
based is pending, on grounds that "a single court [handling] both FOIA and criminal
discovery would obviate the possibility of contradictory rulings, and would prevent the use
of FOIA as a mere substitute for criminal discovery"); cf. Envtl. Crimes Project v. EPA, 928
F. Supp. 1, 1-2 (D.D.C. 1995) (finding that "[t]he interest of justice clearly favors transfer of
this case," but absent "precise" information as to location of records sought, declining to
order transfer in view of "substantial weight due to plaintiff's choice of forum"). But see
Haswell v. Nat'l R.R. Passenger Corp., No. 05-723, 2006 WL 839067, at *3-4 (D. Ariz. Mar.
28, 2006) (denying government's request to transfer venue to District of Columbia, because
plaintiff was resident of Arizona, even though agency and all responsive records were
located in Washington, D.C.; reasoning that "case [likely] will be decided on summary
judgment" based upon affidavits).
35

12

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

of pending FOIA litigation in another judicial district, the related doctrine of "federal
comity" can permit a court to defer to the jurisdiction of the other court, in order to avoid
unnecessarily burdening the federal judiciary and delivering conflicting FOIA
judgments. 36
Statute of Limitations
A FOIA plaintiff ordinarily must file suit before expiration of the applicable statute
of limitations. 37 In Spannaus v. DOJ, the Court of Appeals for the District of Columbia
Circuit applied the general federal statute of limitations, which is found at 28 U.S.C.
§ 2401(a), 38 to FOIA actions. 39 Section 2401(a) provides, in pertinent part, that "every

See, e.g., McHale v. FBI, No. 99-1628, slip op. at 8-9 (D.D.C. Nov. 7, 2000) (applying
"first-filed" rule to dismiss case when similar litigation was already pending in another
jurisdiction); Hunsberger v. DOJ, No. 93-1945, slip op. at 1 (D.D.C. Mar. 16, 1994)
(dismissing case because identical complaint is pending in Eastern District of
Pennsylvania); Beck v. DOJ, No. 88-3433, 1991 WL 519827, at *5 (D.D.C. Jan. 31, 1991),
summary affirmance granted in pertinent part & denied in part, No. 91-5292 (D.C. Cir. Nov.
19, 1992), aff'd on remaining issues, 997 F.2d 1489 (D.C. Cir. 1993) (dismissing on grounds
of federal comity all claims pertaining to documents at issue in the Western District of
Texas); cf. City of Chicago v. U.S. Dep't of the Treasury, No. 01 C 3835, 2001 WL 1173331, at
*3 (N.D. Ill. Oct. 4, 2001) (finding "comity" inapposite when related case seeking much of
same information at issue is before a court of appeals); Envtl. Crimes Project, 928 F. Supp.
at 2 (denying government's transfer motion, but ordering stay of proceedings pending
resolution of numerous discovery disputes in related cases in other jurisdiction).
36

See, e.g., Reep v. DOJ, No. 18-5132, 2018 WL 6721099, at *1 (D.C. Cir. Dec. 18, 2018)
(holding that six year statute of limitations precludes inclusion of FOIA requests
administratively exhausted in 2010), cert. denied, 139 S.Ct. 2674 (2019); Wilbur v. CIA, 273
F. Supp. 2d 119, 123 (D.D.C. 2003) (dismissing case, in part, on basis of plaintiff's failure to
file complaint within six year statute of limitations even though plaintiff was pro se), aff'd on
other grounds, 355 F.3d 675 (D.C. Cir. 2004) (per curiam), reh'g denied, No. 03-5142 (D.C.
Cir. Apr. 7, 2004). But see Manfredonia v. SEC, No. 08-1678, 2008 WL 2917079, at *2
(E.D.N.Y. July 24, 2008) (acknowledging that plaintiff may have failed to meet FOIA's six
year statute of limitations but holding that "in light of plaintiff's pro se status and the liberal
construction that is due his pleadings, the sua sponte dismissal of his FOIA claims is not
appropriate").
37

38

(2009).

824 F.2d 52, 55-56 (D.C. Cir. 1987); see also, e.g., Zaldivar v. VA, 695 F. App'x 319 (9th
Cir. 2017) (affirming district court's descision that plaintiff's claim was barred by six year
statute of limitations); Pit River Tribe v. Bureau of Land Mgmt., No. 04-cv-0969, 2013 U.S.
Dist. LEXIS 106903 (E.D. Cal. July 29, 2013) (determining plaintiff's FOIA claim barred by
six year statute of limitations); Porter v. CIA, 579 F. Supp. 2d 121, 126 (D.D.C. 2008)
(same); Lighter v. IRS, No. 00-00289, 2001 U.S. Dist. LEXIS 3483, at *4 (D. Haw. Feb. 27,
2001) (dismissing complaint filed eight years after plaintiff exhausted his administrative
39

13

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

action commenced against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues." 40 In Spannaus, the D.C. Circuit
held that the FOIA cause of action accrued – and, therefore, that the statute of limitations
began to run – once the plaintiff had "constructively" exhausted his administrative
remedies (see the discussion of Litigation Considerations, Exhaustion of Administrative
Remedies, below) and not when all administrative appeals had been finally adjudicated. 41
However, the District Court for the District of Columbia has held that a time-barred FOIA
cause of action can be cured by filing a new FOIA request "so long as the new claims

remedies, two years too late); Jackson v. FBI, No. 02-3957, 2007 WL 2492069, at *8 (N.D.
Ill. Aug. 28, 2007) (dismissing FOIA claims as time-barred because complaint was filed ten
years after right of action accrued); Harris v. Freedom of Info. Unit, DEA, No. 3:06-0176,
2006 WL 3342598, at *6 (N.D. Tex. Nov. 17, 2006) (holding that plaintiff's suit is barred by
six year statute of limitations and further concluding that plaintiff is not entitled to
equitable tolling); Aftergood v. CIA, 225 F. Supp. 2d 27, 29 (D.D.C. 2002) (noting that
section 2401(a) is "jurisdictional condition attached to the government's waiver of sovereign
immunity," and dismissing complaint filed five months too late because the statute of
limitations "must be strictly construed"); Madden v. Runyon, 899 F. Supp. 217, 226 (E.D.
Pa. 1995) (finding that even assuming plaintiff exhausted his administrative remedies,
statute of limitations would have expired four years prior to commencement of suit); see
also Peck v. CIA, 787 F. Supp. 63, 66 (S.D.N.Y. 1992) (refusing to waive the statute of
limitations because to do so would be "a waiver of sovereign immunity," which "cannot be
relaxed based on equitable considerations," but noting that "there is nothing in the statute
that prevents plaintiff from refiling an identical request . . . and thereby restarting the
process").
40

28 U.S.C. § 2401(a) (2019).

824 F.2d at 57-59; see, e.g., Agolli v. OIG, 125 F. Supp. 3d 274, 281-82 (D.D.C. 2015)
(agreeing "with Defendant's calculation that the date of accrual was ["20 business days after
. . . the date Plaintiff filed her last administrative appeal regarding her FOIA request"]" and
rejecting plaintiff's argument "that the statute of limitations only begins to run from the
date of Plaintiff's last correspondence with the agency"); Rosenfeld v. DOJ, No. 07-03240,
2008 WL 3925633, at *10 (N.D. Cal. Aug. 22, 2008) (explaining that "'[c]onstructive
exhaustion occurs when the time limits by which an agency must reply to a FOIA claimant's
request or appeal . . . expire'" (quoting Aftergood, 225 F. Supp. 2d at 27)); Peck, 787 F. Supp.
at 65-66 (noting that once constructive exhaustion period has run, statute of limitations is
not tolled while request for information is pending before agency); see also Kenney v. DOJ,
700 F. Supp. 2d 111, 116 (D.D.C. 2010) (finding requester's failure to pay fees does not toll
the statute of limitations because "the requirement that a requester pay fees before he may
be deemed to have exhausted his administrative remedies is for the agency's protection, not
the requester's"); cf. Zaldivar v. VA, No. 14-01493, 2015 WL 6468207, at *7 (D. Ariz. Oct. 27,
2015) (finding "continuing violation" doctrine did not rescue time-barred claim because
requester "would know by the expiration of the applicable response date whether he had the
documents he sought").
41

14

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

replace the time-barred claims." 42 The National Archives and Records Administration
has issued General Records Schedule 4.2, 43 which sets a general record-retention period
for case files and supporting documentation relating to FOIA requests involving either a
grant or denial of information at six years after final action by an agency or three years
after final adjudication by the courts, whichever is later. 44
Relief
The FOIA statute imposes limitations on the types of relief a court may grant in a
FOIA lawsuit. 45 Specifically, the Court of Appeals for the District of Columbia Circuit has
held that the statutory language of the FOIA limits relief to the disclosure of improperly
withheld records to a particular requester. 46
Aftergood, 225 F. Supp. 2d at 31; see also Rosenfeld, 2008 WL 3925633, at *10 (holding
that plaintiff's first FOIA request is time-barred, but noting that "ruling has little effect
because defendants do not contest the validity of the substantially similar newly filed FOIA
request").
42

43

Nat'l Archives & Records Admin., General Records Schedule, Schedule 4.2 (2017).

Id.; see also Attorney General's Memorandum on the 1986 Amendments to the Freedom
of Information Act 28 n.51 (Dec. 1987) (advising agencies to maintain any "excluded"
records for purposes of possible further review (citing FOIA Update, Vol. V, No. 4, at 4
(advising same regarding "personal" records))).
44

See 5 U.S.C. § 552(a)(4)(B) (providing jurisdiction "to enjoin the agency from withholding
agency records and to order production of any agency records improperly withheld"); see
also-id. § 552(a)(4)(E)(i)
- ("The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case . . . in which the
complainant has substantially prevailed.").
45

See Fabricant v. DOJ, No. 15-00294, 2017 U.S. Dist. LEXIS 128878 (D. Ariz. Aug. 11,
2017) (holding that plaintiff was not entitled to relief he sought in form of an order
requiring Office of Information Policy to process his appeals); Kennecott Utah Copper Corp.
v. U.S. Dep't of the Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996) (holding that remedial
provision of FOIA limits relief to ordering disclosure of documents to FOIA complainant);
Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763, at *5 (E.D. Tenn.
June 9, 2009) (holding that court lacked authority under FOIA to order agency to create
new documents that plaintiff believed agency was required to create); Hersh & Hersh v.
HHS, No. 06-4234, 2007 WL 1411557, at *3 (N.D. Cal. May 11, 2007) (explaining that "the
proper remedy for an agency's failure to adhere to the statutory deadlines is for the court to
order the agency to respond or to review the request itself"); Dietz v. O'Neill, No. 00-3440,
2001 U.S. Dist. LEXIS 3222, at *2 (D. Md. Feb. 15, 2001) (same), aff'd per curiam, 15 F.
App'x 42 (4th Cir. 2001); Green v. NARA, 992 F. Supp. 811, 817 (E.D. Va. 1998) (concluding
that unless agency records have been improperly withheld, "'a district court lacks
jurisdiction to devise remedies to force an agency to comply with FOIA's disclosure
requirements'" (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989))); cf. Bayala v. DHS,
246 F. Supp. 3d 16, 21 (D.D.C. 2017) (rejecting plaintiff's request "that the Court order
46

15

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Consequently, the D.C. Circuit has held that the FOIA does not authorize a court
to order the publication of information, even information required to be made available
for public inspection under subsection (a)(2), and instead authorizes courts to order
"production" of the information to the FOIA plaintiff. 47 The Court of Appeals for the
Ninth Circuit, in an opinion that disagreed with the D.C. Circuit, held that "FOIA authorizes
district courts to stop the agency from holding back records it has a duty to make available,
which includes requiring an agency to post § 552(a)(2) documents online." 48
The D.C. Circuit has held that the FOIA does not provide a jurisdictional vehicle for a
court to consider Bivens-type constitutional tort claims against FOIA officers 49 or to
[defendant] to 're-write' its intial response letter more fulsomely"); Navigators Ins. Co. v.
DOJ, 155 F. Supp. 3d 157, 167-68 (D. Conn. 2016) ("Plaintiffs cite no authority for the
proposition that an agency's violation of FOIA's deadlines entitles the requester to
automatic disclosure of the requested documents without any analysis of the agency's
claimed exemptions.").
See CREW v. DOJ, 846 F.3d 1235, 1243 (D.C. Cir. 2017) ("We think it clear that a court
has no authority under FOIA to issue an injunction mandating that an agency 'make
available for public inspection' documents subject to the reading room provision.");
Kennecott, 88 F.3d at 1203 ("We think it significant, however, that § 552(a)(4)(B) is aimed
at relieving the injury suffered by the individual complainant, not by the general public. It
allows district courts to order 'the production of any agency records improperly withheld
from the complainant,' not agency records withheld from the public." (quoting 5 U.S.C.
§ 552(a)(4)(B) (emphasis added by court))); cf. Ass'n of Imps. of Textiles & Apparel v. U.S.,
366 F. Supp. 2d 1280, 1283 n.2 (Ct. Int'l Trade 2005) (opining that 28 U.S.C. § 1581(i)
confers Court of International Trade with jurisdiction to hear claims seeking publication
under subsection (a)(1) of FOIA).
47

Animal Legal Def. Fund v. Dep't of Agric., No. 17-16858, 2019 WL 4062524, at *8-13 (9th
Cir. Aug. 29, 2019) (finding that "[t]he injuries complained of here are injuries sustained by
individuals[;] [o]rdering an agency to upload records that FOIA mandates agencies will post
in reading rooms would provide relief to plaintiffs, like those here, injured by the agency's
failure to make those records so available").
48

See, e.g., Cooper v. Stewart, No. 11-5061, 2011 WL 6758484, at *1 (D.C. Cir. Dec. 15, 2011)
(determining that "'all agency decisions' regarding the classification of information under
FOIA are reviewable only under FOIA and are 'not subject to judicial second-guessing in
tort' through an [Federal Tort Claims Act] claim" (quoting Crumption v. Stone, 59 F.3d
1400, 1406 (D.C. Cir. 1995))); Johnson v. EOUSA, 310 F.3d 771, 777 (D.C. Cir. 2002)
(explaining that "FOIA precludes the creation of a Bivens remedy"); Isasi v. Office of the
Att'y Gen., 594 F. Supp. 2d 12, 14 (D.D.C. 2009) (dismissing claim against individual
defendant because "a Bivens action is not viable as a remedy for FOIA violations, and the
FOIA does not permit claims against individual federal officers"); Thomas v. FAA, No. 052391, 2007 WL 219988, at *3 (D.D.C. Jan. 25, 2007) (noting that plaintiffs "cannot obtain a
Bivens remedy for an alleged violation of FOIA").
49

16

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

relitigate criminal matters. 50
Some courts have suggested, however, that the
Administrative Procedure Act may be available in situations where the FOIA does not
provide the court power to impose the requested declaratory and/or injunctive relief. 51
Courts have ruled that once a determination is made that information has been
properly withheld pursuant to a FOIA exemption, the court has no inherent, equitable
power to order disclosure. 52 In the converse situation, courts have held that they cannot
order records to be protected if they do not fall within the FOIA's exemptions. 53 Although
See, e.g., Williams & Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (holding that
"FOIA is neither a substitute for criminal discovery [] nor an appropriate means to vindicate
discovery abuses); Sanders v. Obama, 729 F. Supp. 2d 148, 158 (D.D.C. 2010) (finding no
remedial powers under FOIA for courts to "determine the authenticity of the produced
documents or to make findings of fact and law as to whether probable cause existed" in
previous criminal trial), aff'd, No. 10-5273, 2011 WL 1769099 (D.C. Cir. April 21, 2011);
Richardson v. DOJ, 730 F. Supp. 2d 225, 234 (D.D.C. 2010) (noting that "a Brady violation
is a matter appropriately addressed to the court that sentenced [plaintiff], not through a
FOIA action"); Mingo v. DOJ, 2009 WL 2618129, at *2 (D.D.C. Aug. 24, 2010) (maintaining
that government's statutory obligation to disclose records under FOIA is separate from its
constitutional obligation established by Brady to disclose exculpatory information to
criminal defendants).
50

See Nat'l Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 265 (D.D.C. 2012) (finding relief
may be available under Administrative Procedures Act to enforce compliance with FOIA,
but such relief is precluded when court has power under FOIA to provide requested
declaratory and injunctive remedies); Pa. Dep't of Pub. Welfare v. United States, No. 99-175,
2001 U.S. Dist. LEXIS 3492, at *28 (W.D. Pa. Feb. 7, 2001) (deciding that Administrative
Procedure Act confers jurisdiction to order publication of an index under FOIA's subsection
(a)(2) even though FOIA itself does not), appeal dismissed voluntarily, No. 01-1868 (3d Cir.
Apr. 24, 2002); Pub. Citizen v. Lew, No. 97-2891, slip op. at 4 (D.D.C. July 14, 1998)
(refusing to dismiss claim alleging noncompliance with FOIA requirement to publish
descriptions of "major information systems" compiled under Paperwork Reduction Act,
because even in the absence of an express judicial review provision in the FOIA, the
Administrative Procedure Act provides a "strong presumption that Congress intend[ed]
judicial review of administrative action").
51

See Spurlock v. FBI, 69 F.3d 1010, 1016-18 (9th Cir. 1995) (concluding that when court
finds records exempt under FOIA, it has no "inherent" authority to order disclosure of
agency information just because it might conflict with depositions or other public
statements of informant); see also ACLU v. DOJ, 681 F.3d 61, 71 (2d Cir. 2012) (finding
district court's ruling improper where it had directed agency to release material "by
substituting a purportedly neutral phrase composed by the court" for the properly exempt
material, ruling that such an order "exceeded the court's authority under FOIA").
52

See Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 1087 (9th Cir. 1997)
("We conclude that a district court lacks inherent power, equitable or otherwise, to exempt
materials that FOIA itself does not exempt."); Weber Aircraft Corp. v. United States, 688
F.2d 638, 645 (9th Cir. 1982) ("The careful balancing of interests which Congress attempted
53

17

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

ordinarily there can be no relief provided when an agency establishes that it has released
the responsive records in full to the requester, the D.C. Circuit has held that a court may
grant equitable relief if it finds in an exceptional case that the agency maintains an
unlawful FOIA "policy or practice" threatening to impair the requester's ability to obtain
records in the future, upon application of a strict "capable of repetition but evading
review" standard. 54 (For further discussion see Litigation Considerations, Mootness and
Other Grounds for Dismissal, below.) However, the D.C. Circuit has distinguished
equitable relief from a declaratory judgment, holding that a declaratory judgment would
constitute an advisory opinion that courts lack the jurisdiction to issue. 55 Some lower
courts in other jurisdictions have, nonetheless, issued such judgments. 56
to achieve in the FOIA would be upset if courts could exercise their general equity powers to
authorize nondisclosure of material not covered by a specific exemption."), rev'd on other
grounds, 465 U.S. 792 (1984); see also Abraham & Rose, 138 F.3d at 1077 ("Basing a denial
of a FOIA request on a factor unrelated to any of the[] nine exemptions clearly contravenes
[the FOIA]."). But see Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 20 (1973)
(suggesting, in dicta, that FOIA does not "limit the inherent powers of an equity court");
Campos v. INS, 32 F. Supp. 2d 1337, 1345-46 (S.D. Fla. 1998) (same).
See Payne Enters. v. United States, 837 F.2d 486, 490-92 (D.C. Cir. 1988) (finding
repeated, unacceptably long agency delays in providing nonexempt information sufficient to
grant equitable relief where such delays are likely to recur absent judicial intervention);
Pub. Citizen v. Office of the U.S. Trade Representative, 804 F. Supp. 385, 387 (D.D.C. 1992)
(deciding that courts have jurisdiction to consider "agency's policy to withhold temporarily,
on a regular basis, certain types of documents"); see also Gavin v. SEC, No. 04-4552, 2005
WL 2739293, at *6 (D. Minn. Oct. 24, 2005) (rejecting request to enjoin SEC from using
"Glomar" response, because "future harm is merely speculative in nature, and injunctive
relief is [therefore] inappropriate") reconsideration denied, 2006 WL 208783 (D. Minn..
Jan. 26, 2006); Ctr. for Individual Rights v. DOJ, No. 03-1706, slip op at 11-12 (D.D.C. Sept.
21, 2004) (finding a lack of jurisdiction to grant equitable relief – after agency made full
disclosure during the course of litigation – because plaintiff failed to establish an unlawful
FOIA policy or otherwise "articulate what documents it might seek in the future or in what
way future requests would mirror the circumstances of its original request").
54

Payne Enters., 837 F.2d at 491 (distinguishing between issuance of "[a] declaration that
an agency's initial refusal to disclose requested information was unlawful, after the agency
made that information available, [which] would constitute an advisory opinion in
contravention of Article III of the Constitution," and grant of equitable relief, following full
disclosure, where an agency maintains an otherwise-unreviewable "policy or practice that
will impair . . . lawful access to information in the future"); see also Comptel v. FCC, 945 F.
Supp. 2d 48, 61 (D.D.C. 2013) ("'[A] declaration that an agency's initial refusal to disclose
requested information was unlawful, after the agency made that information available,
would constitute an advisory opinion'"); Pagosans for Pub. Lands v. U.S. Forest Serv., No.
06-cv-00556, 2007 WL 162745, at *3 (D. Colo. Jan. 18, 2007) ("There is no jurisdiction
under FOIA for a declaratory judgment.").
55

See Navigators Ins. Co., 155 F. Supp. 3d at 168 (noting that courts have granted
declaratory judgments where agencies have engaged in pattern or practice of delayed
56

18

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Preliminary Injunctions
On occasion, FOIA plaintiffs have attempted to expedite judicial consideration of
their suits by seeking a preliminary injunction to "enjoin" the agency from continuing to
withhold the requested records. 57 When such extraordinary relief is sought, the court
does not adjudicate the parties' substantive claims, but rather weighs: 1) whether the
plaintiff is likely to prevail upon the merits, 2) whether the plaintiff will be irreparably
harmed absent relief, 3) whether the defendant will be substantially harmed by the
issuance of injunctive relief, and 4) whether the public interest will be benefitted by such

disclosure "and it is possible the violations will recur with respect to the same requesters");
Our Children's Earth Found. v. Nat. Marine Fisheries Serv., No. 14-4365, 2015 WL 6331268,
at *9 (N.D. Cal. Oct. 21, 2015) (granting declaratory relief primarily due to agency's
"pattern-and-practice of failure to meet FOIA deadlines"); South Yuba River Citizens
League v. Nat'l Marine Fisheries, No. 06-2845, 2008 WL 2523819, at *6 (N.D. Cal. June 20,
2008) (granting plaintiff's motion for declaratory judgment and declaring that agency's
"failure to adhere to FOIA's deadline for responding to plaintiffs' information requests is
unlawful"); Or. Natural Desert Ass'n v. Gutierrez, 409 F. Supp. 2d 1237, 1248 (D. Or. 2006)
(issuing, after the agency's disclosure of all requested records, declaratory judgment that its
failure "to make a timely determination resulted in an improper withholding under the
Act"); Beacon Journal Publ'g Co. v. Gonzalez, No. 05-CV-1396, 2005 U.S. Dist. LEXIS
28109, at *3-4 (N.D. Ohio Nov. 16, 2005) (pronouncing, following agency's disclosure of the
requested photographs, that its initial withholding was "contrary to the FOIA").
See Aronson v. HUD, 869 F.2d 646, 648 (1st Cir. 1989) (denying preliminary injunction);
Animal Legal Def. Fund v. Dep't of Agric., No 17-00949, 2017 WL 2352009 (N.D. Cal. May
31, 2017) (denying request for preliminary injuction because plaintiffs failed to
"demonstrate that the law and facts clearly favor the relief they have requested" and "they
are not likely to succeed on their FOIA claim"); Dorsett v. DOJ, 307 F. Supp. 2d 28, 42
(D.D.C., 2004) (describing plaintiff's motion for injunction to prevent agency from "not
taking any action honoring or denying" FOIA request, but dismissing it because court has no
jurisdiction to make "advisory findings" regarding agency conduct towards FOIA
requesters); Wiedenhoeft v. United States, 189 F. Supp. 2d 295, 296-97 (D. Md. 2002)
(refusing to issue temporary restraining order to force "immediate compliance" with
plaintiff's FOIA requests by moving them "to the head of the queue forthwith"); Pinnacle
Armor, Inc. v. United States, No. 07-1655, 2008 WL 108969, at *9 (E.D. Cal. Jan. 7, 2008)
(denying injunctive relief and noting that "[p]laintiff has not provided any authority for the
proposition that the claim for the Freedom of Information Act supports a claim for an
injunction"); Carlson v. USPS, No. 02-5471, 2005 WL 756573, at *8 (N.D. Cal. Mar. 31,
2005) (denying request for injunction sought to compel "timely" response to FOIA request);
Al-Fayed v. CIA, No. 00-2092, slip op. at 18 (D.D.C. Dec. 11, 2000) (reminding plaintiffs,
who twice before had petitioned for temporary restraining order, that preliminary
injunctions amount to "extraordinary" relief, which must be granted "sparingly"), aff'd on
other grounds, 254 F.3d 300 (D.C. Cir. 2001); Beta Steel Corp. v. NLRB, No. 2:97 CV 358,
1997 WL 836525, at *2 (N.D. Ind. Oct. 22, 1997) (denying preliminary injunction).
57

19

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

relief. 58 Courts have expressed concern that preliminary injunctions risk disclosing the
very information that is the subject of the litigation and can interfere with the orderly
briefing of the case. 59
The FOIA contemplates expedited processing of requests in cases of "compelling
need" and in other situations that are determined by agency regulation to warrant such
processing. 60
(For further discussion of expedited processing, see Procedural
Requirements, Expedited Processing, above.) The timing of an agency's response to an
expedited processing request itself has been subject to a preliminary injunction. 61 Such
See Pinson v. DOJ, No. 18-486, 2018 WL 5464706, at *6 (D.D.C. Oct. 29, 2018) (denying
plantiff's motion for preliminary injunction based on harm suffered in past because plaintiff
has not demonstrated irreparable harm in future) (appeal filed); Allied Progress v.
Consumer Fin. Prot. Bureau, No. 17-686, 2017 WL 1750263, at *6 (D.D.C. May 4,
2017)(finding that "[p]laintiff has failed to establish its likelihood of success on the merits,
or that it will be irreparably harmed, and the pulic interests and equities are in equipoise");
Judicial Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 11 (D.D.C. 2007) (denying injunctive relief
"because the plaintiff has failed to establish the necessary irreparable harm and because
granting the motion would impose a significant hardship on the defendant agencies and not
serve the public interest"); Long v. DHS, 436 F. Supp. 2d 38, 43 (D.D.C. 2006) (discussing
all four factors and denying plaintiff's request for injunctive relief); Elec. Privacy Info. Ctr. v.
DOJ, 416 F. Supp. 2d 30, 36-42 (D.D.C. 2006) (same); Al-Fayed v. CIA, No. 00-2092, 2000
WL 34342564, at *2-6 (D.D.C. Sept. 20, 2000) (same); see also Mayo v. U.S. Gov't Printing
Office, 839 F. Supp. 697, 700 (N.D. Cal. 1992) (finding fact that FOIA expressly authorizes
injunctive relief does not divest district court of obligation to "exercise its sound discretion,"
relying on traditional legal standards, in granting such relief (citing Weinberger v. Romero
Barcelo, 456 U.S. 305, 312 (1982))), aff'd, 9 F.3d 1450 (9th Cir. 1993).
58

See Aronson, 869 F.2d at 648 ("To issue the preliminary injunction discloses the names,
permanently injuring the interest HUD seeks to protect[.]"); see also Long, 436 F. Supp. 2d
at 44 (refusing to issue preliminary injunction to compel production of records, because
"[t]he government has not yet had a chance to review its files, prepare and file a dispositive
motion, and provide the Court the information necessary to make a decision on any material
that might be subject to an exemption"); Hunt v. U.S. Marine Corps, No. 94-2317, slip op. at
5 (D.D.C. Oct. 28, 1994) (denying temporary restraining order, in part on basis of strong
"public interest in an 'orderly, fair and efficient administration of the FOIA'" (quoting
Nation Magazine, 805 F. Supp. at 74)).
59

5 U.S.C. § 552(a)(6)(E)(i)(I)-(II); see, e.g., Dep't of State FOIA Regulations, 22 C.F.R. §
171.11(f)(3) (2019) (providing for expedited processing if "[f]ailure to release the
information would impair substantial due process rights or harm substantial humanitarian
interests").
60

See Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 542 F. Supp. 2d 1181,
1187 (N.D. Cal. 2008) (granting preliminary injunction and ordering defendants to timely
process and produce requested documents to plaintiff within seventeen days of court order);
Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 42 (granting preliminary injunction to accelerate
agency's processing of expedited request); Gerstein v. CIA, No. 06-4643, 2006 WL 3462659,
61

20

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

was the case in a ruling by the District Court for the District of Columbia in Electronic
Privacy Information Center (EPIC) v. DOJ, which involved a request which had been
granted expedited processing. 62 In EPIC, the court ruled that jurisdictional authority
exists to impose "concrete deadlines" on any agency that "delay[s]" the processing of an
expedited FOIA request beyond what arguably is "as soon as practicable," 63 i.e., the
statutory standard applicable to expedition. 64 The court then issued an injunction to
accelerate the processing of the FOIA request by requiring production of records within
twenty days of its order. 65
Frivolous Lawsuits
Occasionally, courts have considered whether a FOIA plaintiff is filing frivolous
lawsuits. The Court of Appeals for the District of Columbia Circuit has ruled that generally
FOIA plaintiffs' "mere litigiousness alone does not support the issuance of an injunction"
against filing further lawsuits. 66 Nevertheless, where a plaintiff has a history of initiating
frivolous claims, courts have required them to seek leave of court before filing further
FOIA actions. 67
at *4-5 (N.D. Cal. Nov. 29, 2006) (granting plaintiff's motion for preliminary injunction and
ordering agencies to process plaintiff's FOIA requests within thirty days); Wash. Post v.
DHS, 459 F. Supp. 2d 61, 68 n.4, 76 (D.D.C. 2006) (granting plaintiff preliminary injunction
and ordering agency to process records within ten days because not granting injunction
would cause plaintiff to "lose out on its statutory right to expedited processing and on the
time-sensitive public interests which underlay the request"). But cf. Long, 436 F. Supp. 2d
at 44 (denying, given "broad scope of plaintiff's requests," motion for preliminary injunction
to compel processing within twenty days, and explaining that "[t]he government has not yet
had a chance to review its files, prepare and file a dispositive motion, and provide the Court
the information necessary to make a decision on any material that might be subject to an
exemption").
62

See Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 33.

63

Id. at 38.

64

See 5 U.S.C. § 552(a)(6)(E)(iii).

65

See Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 40.

In re Powell, 851 F.2d 427, 434 (D.C. Cir. 1988); cf. Zemansky v. EPA, 767 F.2d 569, 57374 (9th Cir. 1995) (holding that district court exceeded its authority by requiring frequent
requester, whose requests included "questions, commentary, narrative" and other
extraneous material, to make future requests in "'separate document which is clearly
defined as an FOIA request' and not 'intertwined with non-FOIA matters'").
66

See, e.g., Schwarz v. NSA, 526 U.S. 122, 122 (1999) (barring plaintiff from further filings,
citing thirty-five frivolous petitions for certiorari); Schwarz v. USDA, 22 F. App'x 9, 10 (D.C.
Cir. 2001) (affirming district court prohibition against plaintiff's filing of any further civil
actions without first obtaining leave of court, because of her long history of frivolous claims
67

21

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Appointment of Counsel
Where a pro se FOIA plaintiff seeks appointment of counsel, a district court has
wide discretion to decide whether to grant that request under 28 U.S.C. § 1915(e)(1).68
The Court of Appeals for the District of Columbia Circuit has held that a court should
consider several factors in making this decision: 1) the nature and complexity of the
action, 2) the potential merit of the claims, 3) the inability of a pro se party to obtain
counsel by other means, and 4) the degree to which the interests of justice will be served
by appointment of counsel. 69 (For a discussion of the availability of attorney fees in the

and litigation abuses); Hoyos v. VA, No. 98-4178, slip op. at 4 (11th Cir. Feb. 1, 1999)
(affirming district court's order barring plaintiff from future filings without court's
permission, and noting that plaintiff "has frivolously sued just about everyone even
remotely associated with the VA . . . and has burdened the district court with over 130
motions and notices, many of them duplicative"); Goldgar v. Office of Admin., 26 F.3d 32,
35-36 & n.3 (5th Cir. 1994) (warning plaintiff that subsequent filing or appeal of FOIA
lawsuits without jurisdictional basis may result in assessment of costs, attorney's fees and
proper sanctions or that plaintiff may be required to "obtain judicial preapproval of all
future filings"); Robert v. DOJ, No. 05-2543, 2005 WL 3371480, at *12-15 (E.D.N.Y. Dec. 12,
2005) (enjoining plaintiff from filing future actions without leave of court, as plaintiff's
"litigation history in the EDNY is vexatious," based on twenty-four FOIA cases filed in the
EDNY, which "have required a substantial use of judicial resources at considerable expense
to Defendants"); Peck v. Merletti, 64 F. Supp. 2d 599, 603 (E.D. Va. 1999) (noting plaintiff's
"continued pursuit of nonexistent information . . . and the drain on valuable judicial and law
enforcement resources," requiring that plaintiff's future filings comply with "Federal Rule of
Civil Procedure 8 in regards to 'a short and plain statement of the claim'" (quoting Fed. R.
Civ. P. 8(a)(2))).
(2019); see, e.g., Schwarz v. U.S. Dep't of the Treasury, No. 00-5453, 2001 WL 674636, at
*1 (D.C. Cir. May 10, 2001) (declaring that "appellants are not entitled to appointment of
counsel when they have not demonstrated sufficient likelihood of success on the merits").
68

See, e.g., Willis v. FBI, 274 F.3d 531, 532-33 (D.C. Cir. 2001) (citing local court rules as
most appropriate basis upon which to decide appointment of counsel question in FOIA
case); Pinson v. DOJ, 104 F. Supp. 3d 30, 35 (D.D.C. 2015) (agreeing with parties that
"because the BOP's mail policy prohibits [plaintiff] from accessing some documents
responsive to his FOIA requests," "[plaintiff] is currently unable to view documents relevant
to this litigation, and in light of the fact that a number of his FOIA claims have proven
meritorious and survived Defendants' motions for partial summary judgment, appointment
of counsel is appropriate and will serve the interests of justice"); Shehadeh v. FBI, No. 103306, 2011 WL 2909202, at *1 (D.C. Ill July 18, 2011) ("In deciding whether to allow a
request for pro bono counsel, the Court must consider: (1) whether the indigent plaintiff has
made a reasonable attempt to obtain counsel or has been effectively precluded from doing
so; and, (2) whether the plaintiff appears competent to litigate the matter for himself.");
Jackson v. EOUSA, No. 07-6591, 2008 WL 4444613, at *2-3 (S.D.N.Y. Sept. 25, 2008)
(denying appointment of counsel in light of plaintiff's demonstrated abilities to pursue her
69

22

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

event that counsel is appointed, see Attorney Fees, below.) Additionally, it has been held
that the FOIA does not provide a plaintiff, pro se or otherwise, with a right to a jury trial.70
Pleadings
An agency has thirty days from the date of service to answer a FOIA complaint, 71
not the typical sixty days provided by Federal Rule of Civil Procedure 12(a)(2). Courts are
not required to automatically accord expedited treatment to FOIA lawsuit; however, as
with other civil actions, they may do so "if good cause therefore is shown." 72
Only federal agencies are proper party defendants in FOIA litigation. 73
Consequently, neither the agency head nor other federal employees are proper parties to
FOIA claim, and given that factual and legal issues relating to her FOIA claim do not appear
overly complex).
See, e.g., Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268 F. Supp. 2d 1101, 1102
(D.N.D. 2003).
70

71

See 5 U.S.C. § 552(a)(4)(C) (2012 & Supp. V 2017).

72

Federal Courts Improvement Act, 28 U.S.C. § 1657 (2019).

See 5 U.S.C. § 552(a)(4)(B) (granting district courts "jurisdiction to enjoin the agency
from withholding agency records improperly withheld from complainant") (emphasis
added); 5 U.S.C. § 552(f)(1) (defining term "agency"); see also, Taitz v. Ruemeller, No. 111421, 2012 U.S. App. LEXIS 10714, at *1 (D.C. Cir. May 25, 2012) (per curiam) (affirming
district court's decision that White House Chief Counsel's Office is not agency subject to
FOIA); Earle v. Holder, No. 11-5280, 2012 WL 1450574, at *1 (D.C. Cir. Apr. 19, 2012) (per
curiam) (affirming district court's dismissal of claims against District of Columbia
employees); Wells v. State Att'y Gen. of La., 469 F. App'x 308, 309 (5th Cir. 2012) (per
curiam) (affirming decision of district court to dismiss FOIA claim brought against state
entity); Citizens for Resp. & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 220-26 (D.C.
Cir. 2009) (concluding that Office of Administration within Executive Office of the
President is not agency subject to FOIA, "because it . . . lacks substantial independent
authority"); Dunleavy v. N.J., 251 F. App'x 80, 83 (3d Cir. 2007) (upholding district court's
decision to dismiss FOIA claim against state agency); Megibow v. Clerk of U.S. Tax Ct., 432
F.3d 387, 387 (2d Cir. 2005) (concluding that United States Tax Court is not subject to
FOIA); Pennyfeather v. Tessler, 431 F.3d 54, 56 (2d Cir. 2005) (holding that FOIA does not
provide for private right of action against municipal or state agencies or officials);
Henderson v. Sony Pictures Entm't, 135 F. App'x 934, 935 (9th Cir. 2005) (affirming that
private company is not agency and, accordingly, not subject to FOIA); United States v.
Casas, 376 F.3d 20, 22 (1st Cir. 2004) (stating that judicial branch is not subject to FOIA);
United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) ("Because Congress is
not an agency, congressional documents are not subject to FOIA's disclosure
requirement."); Elec. Priv. Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 91 (D.D.C. 2011) (finding
that "[t]his Circuit has unambiguously held that the [National Security Council] is not an
agency subject to FOIA"); Godaire v. Napolitano, No. 10-1266, 2010 U.S. Dist. LEXIS
73

23

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

a FOIA suit, 74 nor is "the United States." 75 (For a further discussion of which entities are
subject to the FOIA, see Procedural Requirements, Entities Subject to the FOIA, above.)
In some instances when FOIA plaintiffs name an office or component of an agency as a
defendant, courts will substitute the appropriate agency as the proper party. 76 However,
122237, at *1-3 (D. Conn. Nov. 17, 2010) (dismissing plaintiff's FOIA claims against
individuals, state entities, and private businesses because "FOIA applies only to federal
agencies"); Thornton-Bey v. Admin. Office of U.S. Courts, No. 09-0958, 2009 WL 1451571,
at *1 (D.D.C. May 21, 2009) (concluding that Administrative Office of U.S. Courts is part of
judicial branch and thus not an agency for purposes of FOIA); Banks v. Lappin, 539 F. Supp.
2d 228, 234 (D.D.C. 2008) (dismissing plaintiff's FOIA claims against Offices of the
President and Vice President and Congress for lack of subject matter jurisdiction because
they are not "agencies").
See, e.g., Offor v. EEOC, 687 Fed.Appx. 13, 15 n. 1 (2d Cir. 2017) (per curiam) (finding that
"[t]he district court correctly determined that [the requester] was unable to assert claims
against [a named official] individually because FOIA imposes a responsibility on the agency,
not individual federal officials, to produce documents"); Drake v. Obama, 664 F.3d 774, 786
(9th Cir. 2011) (affirming district court's dismissal of FOIA claims against defendants
because "they are all individuals, not agencies"); Cooper v. Stewart, No. 11-5061, 2011 WL
6758484, at *1 (D.C. Cir. Dec. 15, 2011) (per curiam) (affirming district court's dismissal of
"claims against individual defendants because the [FOIA] only authorizes suits against
certain executive branch 'agencies' not individuals"); Martinez v. BOP, 444 F.3d 620, 624
(D.C. Cir. 2006) (affirming district court's decision to dismiss FOIA claims against
individual federal employees); Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993)
(per curiam) (dismissing suit brought against prosecutor, because plaintiff "sued the wrong
party"); Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) ("Neither the Freedom of
Information Act nor the Privacy Act creates a cause of action for a suit against an individual
employee of a federal agency."); Sanders v. Obama, 729 F. Supp. 2d 148, 151 n.1 (D.D.C.
2010) (dismissing President and two federal employees as defendants to action since "FOIA
only provides for a cause of action based on the actions/inactions of agencies, not
individuals"); Brown v. DOJ, 734 F. Supp. 2d 99, 102 (D.D.C. Aug. 30, 2010) (granting
motion to dismiss claims against component office of DOJ and federal employees).
74

See Batton v. Evers, 598 F.3d 169, 172 n.1 (5th Cir. 2010) (noting that neither United
States nor individuals are proper parties to FOIA actions); Sanders v. United States, No. 965372, 1997 WL 529073, at *1 (D.C. Cir. July 3, 1997) (dismissing complaint because "United
States" is not agency subject to FOIA); United States v. Trenk, No. 06-1004, 2006 WL
3359725, at *8 (D.N.J. Nov. 20, 2006) ("The United States is not a proper party in a FOIA
action."); Huertas v. United States, No. 04-3361, 2005 WL 1719143, at *7 (D.N.J. July 21,
2005) (granting defendants' motion for summary judgment because United States and
individual defendants were only defendants named).
75

See, e.g., Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539, at *2-3 n.2 (D.D.C.
Mar. 18, 2010) (substituting "USAID as the real party in interest" where plaintiff brought
FOIA action against USAID Administrator in his official capacity); Williams v. Comm'r of
IRS, 723 F. Supp. 2d 925, 929 (M.D. La. 2010) (granting plaintiff leave to amend complaint
to name agency as proper party defendant); Richardson v. DOJ, 730 F. Supp. 2d 225,
76

24

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

in other situations, courts have allowed agency components to be sued in their own
capacity. 77
Although the D.C. Circuit has held that an agency in possession of records
originating with another agency "cannot simply refuse to act on the ground that the
documents originated elsewhere," 78 it has also ruled that an "agency may acquit itself
through a referral, provided the referral does not lead to improper withholding. 79
Lastly, courts have rejected attempts by FOIA plaintiffs to amend their complaints
when amendment is unduly delayed, 80 the complaint as amended still would fail to state
229 n.1 (D.D.C. 2010) (considering DOJ proper party defendant where two of its component
offices were named).
Flaherty v. IRS, 468 F. Appx. 8, 9 (D.C. Cir. June 6, 2012) (per curiam) (affirming district
court's decision to dismiss claims against individuals and substitute IRS as sole defendant);
Batton, 598 F.3d at 172 n.1 (providing that on remand plaintiff should be given opportunity
to substitute IRS as proper party defendant in place of IRS Commissioner and United
States); Peralta v. U.S. Att'ys Office, 136 F.3d 169, 173 (D.C. Cir. 1998) (dictum) (suggesting
that "the FBI is subject to FOIA in its own name"); Jean-Pierre v. BOP, 880 F. Supp. 2d 95,
101 (D.D.C. 2012) (determining that "[a]lthough a small number of decisions hold that only
the DOJ, and not its subcomponents, may be sued under FOIA, . . . the weight of authority is
that subcomponents of federal executive departments may, at least in some cases, be
properly named as FOIA defendants"); Brown v. FBI, 793 F. Supp. 2d 368, 385 (D.D.C.
2011) (denying FBI's motion to dismiss and concluding that substitution of DOJ is
unnecessary because "no court has found that FOIA does not apply to the FBI" and it "'has
litigated numerous FOIA cases in its own name'"); Nielsen v. U.S. Bureau of Land Mgmt.,
252 F.R.D. 499, 509 (D. Minn. 2008) (concluding that Bureau of Land Management, a
constituent office of Department of the Interior, "is an agency for purposes of FOIA"); Cnty.
of Santa Cruz v. Ctrs. for Medicare & Medicaid Servs., No. 07-2889, 2009 WL 816633, at *1
(N.D. Cal. Mar. 26, 2009) (refusing to dismiss Centers for Medicare and Medicaid Services,
part of HHS, as defendant in FOIA action because it "failed to demonstrate that it is not
establishment in the executive branch of the government").
77

78

McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983).

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1118 (D.C. Cir. 2007) (rejecting plaintiff's
argument that referrals are barred outright because, while consultations are per se
acceptable, other reasonable procedures including referrals are not precluded); Chaplin v.
Stewart, 763 F. Supp. 2d 1, 4 (D.D.C. 2011) (concluding that fact that certain documents
maintained by agency may have originated with another agency "does not relieve
[defendant] of its statutory obligations to search its files for responsive records and to either
release them to plaintiff or to refer them to [other agency] for processing"); see also DOJ,
OIP Guidance: Referrals, Consultations, and Coordination (2011) (advising agencies of
responsibilities with respect to referrals, consults, and coordinations).
79

See, e.g., Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010) (denying pro se plaintiff
leave to amend where he provided "no explanation why he waited more than two years to
80

25

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

a justiciable claim, 81 or the proposed amendments would dramatically alter the scope and
nature of the FOIA litigation. 82
try to amend" and where proposed amendment would "prejudice defendants by expanding
the scope of the litigation – after the litigation concluded – beyond its initial character as
solely a FOIA action"); James v. U.S. Customs & Border Prot., 549 F. Supp. 2d 1, 12-13
(D.D.C. 2008) (refusing to allow plaintiff to amend his complaint to include new defendants
because he waited "nearly two years" and sought leave only after receiving defendant's
renewed motion for summary judgment); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1200
(N.D. Cal. 2006) (denying motion to amend complaint because "[t]he parties' summary
judgment motions have been fully briefed and argued, and allowing amendment would
unduly prolong these proceedings").
See, e.g., Pickering-George v. Alcohol & Tobacco Tax & Trade Bureau, 399 F. App'x 602,
603 (D.C. Cir. Nov. 8, 2010) (per curiam) (concluding that district court "did not abuse its
discretion in denying as futile appellant's motion to amend the complaint"); Dunleavy, 251
F. App'x at 84 (holding that district court did not abuse its discretion by disallowing plaintiff
to amend his complaint because the "amended complaint could not withstand a renewed
motion to dismiss"); Tereschchuk v. BOP, 851 F. Supp. 2d 157, 162 (D.D.C. 2012) (finding
amendment of complaint "is futile" where plaintiff failed to exhaust his administrative
remedies with respect to two requests for which he did not pay fees or request fee waiver);
Union Leader Corp. v. DHS, No. 12-18, 2012 U.S. Dist. LEXIS 39730, at *5-8 (D.N.H. Mar.
23, 2012) (denying plaintiff's motion to amend complaint on grounds that it would be
"futile" where agency had not issued a decision on request and twenty-day statutory time
period had not run); Stanko v. BOP, 842 F. Supp. 2d 132, 140-141 (D.D.C. Feb. 3, 2012)
(denying plaintiff leave to amend where proposed Privacy Act and First Amendment claims
would be futile and where there was an eighteen month delay in raising these claims);
Brown, 793 F. Supp. 2d at 391 (denying as futile plaintiff's motion for leave to amend
complaint to add new FOIA claims where he "has not placed information into the record
showing that [any of the] agenc[ies] denied his request or that he appealed their denial");
Pohl v. EPA, No. 09-1480, 2010 WL 2607476, at *5 (W.D. Pa. June 25, 2010) (dismissing
one of plaintiff's proposed amendments as futile because that claim "rests on an alleged
violation of FOIA" by private hospital and private citizen); McDermott v. Potter, No. 090776, 2009 WL 2971585, at *1 (W.D. Wa. Sept. 11, 2009) (denying leave to amend as "futile"
where plaintiff failed to submit proper FOIA request); cf. Feinman v. FBI, 269 F.R.D. 44, 5153 (D.D.C. 2010) (granting plaintiff leave to add claim that FBI violated FOIA via particular
policy and rejecting defendant's argument that such amendment was "futile because it does
not state a valid claim for equitable relief").
81

See, e.g., Cause of Action v. DOJ, 282 F. Supp. 3d 66, 76 (D.D.C. Oct. 10, 2017) (refusing
to grant leave to amend because doing so "would unduly prejudice the [defendant] by
expanding this litigation from a simple FOIA claim . . . into a more complex case"); Brown,
744 F. Supp. 2d at 123 (denying pro se plaintiff leave to amend where proposed amendment
would "prejudice defendants by expanding the scope of the litigation – after the litigation
concluded – beyond its initial character as solely a FOIA action"); Wolf v. CIA, 569 F. Supp.
2d 1, 25 (D.D.C. 2008) (denying plaintiff's motion to amend complaint to include additional
FOIA and APA claims, because "the proposed amendments bear no relationship to [the]
original case and would result in a 'radical' change to the 'scope and nature' of this
litigation") (citation omitted); Reynolds v. United States, No. 06-0843, 2007 WL 3071179,
82

26

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Standard of Review
The standards and procedures that apply to FOIA lawsuits are atypical within the
field of administrative law. First, the usual "substantial evidence" standard of review of
agency action is replaced in the FOIA by a de novo review standard. 83 Second, the
defendant agency maintains the burden of proof to justify its decision to withhold any
information. 84

at *2-3 (S.D.N.Y. Oct. 19, 2007) (denying plaintiff's request to amend complaint where his
new claims had "no relation to the claims [he] originally asserted" and where he sought to
add additional defendants at advanced stage in the case); Caton v. Norton, No. 04-439,
2005 WL 1009544, at *4 (D.N.H. May 2, 2005) (denying motion to amend complaint where
plaintiff sought to add claims barred by doctrines of sovereign immunity and exhaustion of
administrative remedies); Szymanski v. DEA, No. 93-1314, 1993 WL 433592, at *2 (D.D.C.
Oct. 6, 1993) ("This Court will not permit a F.O.I.A. complaint, properly filed, to become the
narrow edge of a wedge which forces open the court house door to unrelated claims against
unrelated parties."). But see Eison v. Kallstrom, 75 F. Supp. 2d 113, 117 (S.D.N.Y. 1999)
(allowing plaintiff to amend original complaint in order to allege improper withholding of
records, where original complaint had asked for injunction against "pattern and practice" of
delayed agency responses, which court deemed "now moot").
See 5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017); see also DOJ v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989) (noting that the FOIA "directs the district
courts to 'determine the matter de novo'" (citing 5 U.S.C. § 552(a)(4)(B)); DiBacco v. Dep't
of Army, 926 F.3d 827, 832 (D.C. Cir. 2019) (noting that standard of review in FOIA cases is
de novo); Bloomberg, L.P. v. Bd. of Governors of the Fed. Res. Sys., 601 F.3d 143, 147 (2d
Cir. 2010) ("The agency's decision that the information is exempt from disclosure receives
no deference; accordingly, the district court decides de novo whether the agency has
sustained its burden."); Summers v. DOJ, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (explaining
that review is "de novo").
83

See 5 U.S.C. § 552(a)(4)(B); DiBacco, 926 F.3d at 834 (D.C. Cir. 2019) (noting that agency
bears burden of proof to justify withholdings); Watkins v. U.S. Bureau of Customs, 643 F.3d
1189, 1194 (9th Cir. 2011) ("'FOIA's strong presumption in favor of disclosure means that an
agency that invokes one of the statutory exemptions to justify the withholding of any
requested documents or portions of documents bears the burden of demonstrating that the
exemption properly applies to the documents.'" (quoting Lahr v. NTSB, 569 F.3d 964, 973
(9th Cir. 2009))); Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (explaining that it is
agency's burden "to justify the withholding of any requested documents"); DOJ v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989) ("The burden is on the agency to demonstrate, not
the requester to disprove, that the materials sought are not 'agency records' or have not
been 'improperly' 'withheld.'"); Reporters Comm., 489 U.S. at 755 (stating that "unlike the
review of other agency action that must be upheld if supported by substantial evidence and
not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain
its action'" (citing 5 U.S.C. § 552(a)(4)(B))).
84

27

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

In certain contexts, however, courts modify these standards. For example, when
Exemption 1 is invoked, most courts apply a highly deferential standard of review for
classified documents in order to avoid compromising national security. 85 (See the
discussion under Exemption 1, Standard of Review, above). Fee waiver issues are also
reviewed under the de novo standard of review, but the scope of review is specifically
limited by statute to the record before the agency. 86 (For a further discussion of fee waiver
review standards, see Fees and Fee Waivers, Fee Waivers, above.) Additionally, in
instances where the requester seeks expedition under the statutorily based "compelling
need" 87 standard and an agency denies that request for expedition, courts review that
decision de novo. 88 Significantly, however, the Court of Appeals for the District of
Columbia Circuit has observed that, in cases where an agency has established additional
grounds for expedited processing, the applicable regulation and the agency's
interpretation of it are "entitled to judicial deference." 89

See, e.g., ACLU v. DOD, 628 F.3d 612, 624 (D.C. Cir. 2011) (reiterating that "'[i]n the
FOIA context, we have consistently deferred to executive affidavits predicting harm to
national security, and have found it unwise to undertake searching judicial review'")
(citation omitted); Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (same);
Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007) ("Although the court has 'consistently
maintained that vague and conclusory affidavits, or those that merely paraphrase the words
of a statute, do not allow a reviewing judge to safeguard the public's right of access to
government records,' the text of Exemption 1 itself suggests that little proof or explanation
is required beyond a plausible assertion that information is properly classified.") (citation
omitted); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (finding that "in conducting de
novo review in the context of national security concerns, courts 'must accord substantial
weight to an agency's affidavit concerning the details of the classified status of the disputed
record'" (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984))).
85

5 U.S.C. § 552(a)(4)(A)(vii); see, e.g., Stewart v. U.S. Dep't of the Interior, 554 F.3d 1236,
1241 (10th Cir. 2009); Judicial Watch, Inc. v. Rosotti, 326 F.3d 1309, 1311 (D.C. Cir. 2003).
86

87

5 U.S.C. § 552(a)(6)(E)(i)(I).

See Al-Fayed v. CIA, 254 F.3d 300, 306-08 (D.C. Cir. 2001) (holding, in a case of first
impression, that "a district court must review de novo an agency's denial of a request for
expedition under FOIA"); CareToLive v. FDA, No. 08-005, 2008 U.S. Dist. LEXIS 41393, at
*5 (S.D. Ohio May 22, 2008) (same), aff'd on other grounds, 631 F.3d 336 (6th Cir. 2011);
Jerome Stevens Pharms. Inc. v. FDA, No. 07-1985, 2008 U.S. Dist. LEXIS 81163, at *9
(E.D.N.Y. Jan. 11, 2008) (same).
88

Al-Fayed, 254 F.3d at 307 n.7. Contra ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 U.S.
Dist. LEXIS 3763, at *22 (N.D. Cal. Mar. 11, 2005) (concluding that "in the absence of any
controlling Ninth Circuit authority to the contrary, . . . judicial review of any denial of a
request for expedited processing – whether the request is made pursuant to the 'compelling
need provision' of subparagraph (E)(i)(I), or is made pursuant to 'other cases determined by
the agency provision' of subparagraph (E)(i)(II) – must be conducted de novo").
89

28

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Exhaustion of Administrative Remedies
Under the FOIA, administrative remedies generally must be exhausted prior to
judicial review. 90 In other words, with the exceptions noted below, under most
circumstances, a requester must file a proper FOIA request and administrative appeal
prior to seeking relief in the courts. 91 The Court of Appeals for the District of Columbia
Circuit has explainted that exhaustion allows the top-level officials of an agency the
opportunity to use their expertise and experience to review the matter and to make an
administrative record, potentially obviating the necessity of judicial review. 92 When a
FOIA plaintiff attempts to obtain judicial review without first properly undertaking full
and timely administrative exhaustion, the D.C. Circuit has held that the lawsuit is subject
See, e.g., Calhoun v. FBI, 546 F. App'x 487, 490 (5th Cir. 2013) ("Under the FOIA, a
plaintiff must exhaust his administrative remedies prior to seeking judicial review of a
federal agency's decision."); Schoenman v. FBI, No. 04-2202, 2006 WL 1582253, at *9
(D.D.C. June 5, 2006) ("exhaustion of administrative remedies is required before a party
can seek judicial review"); Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C. 2002)
(same (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990)));
Makuch v. FBI, No. 99-1094, 2000 WL 915640, at *2 (D.D.C. Jan. 5, 2000) ("Under FOIA, a
party must exhaust available administrative remedies before seeking judicial review." (citing
Dettmann v. DOJ, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986))); Trueblood v. U.S. Dep't of
Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) ("A plaintiff's FOIA suit is subject to dismissal
for lack of subject matter jurisdiction if he fails to exhaust all administrative remedies.").
90

See, e.g., DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015) (finding that requester
failed to exhaust administrative remedies by not responding to agency's request for clarity
on requester's inadequately described request or, alternatively, administratively appealing
agency's interpretation of that request); ExxonMobil Corp. v. Dep't. of Commerce, 828 F.
Supp. 2d 97, 104 (D.D.C. 2001) (stating that "a requester under FOIA must file an
administrative appeal within the time limit specified in an agency's FOIA regulations or face
dismissal of any lawsuit complaining about the agency's response" to FOIA request).
91

Oglesby, 920 F.2d at 61 ("Exhaustion of administrative remedies is generally required
before filing suit in federal court so that the agency has an opportunity to exercise its
discretion and expertise on the matter and to make a factual record to support its
decision."); see also Taylor v. Appleton, 30 F.3d 1365, 1369 (11th Cir. 1994) ("Allowing a
FOIA requester to proceed immediately to court to challenge an agency's initial response
would cut off the agency's power to correct or rethink initial misjudgments or errors.");
Martin v. Court Servs. & Offender Supervision Agency, No. 05-853, 2005 WL 3211536, at *3
(D.D.C. Nov. 17, 2005) (recognizing that administrative exhaustion "[g]ives the parties and
the courts the benefit of the agency's experience and expertise"); Hogan v. Huff, No. 00Civ.-6753, 2002 WL 1359722, at *4 (S.D.N.Y. June 21, 2002) (explaining that administrative
appeal procedures "provide agencies an opportunity to correct internal mistakes"); cf.
Hoeller v. SSA, 670 F. App'x 413 (7th Cir. 2016) (denying a post-judgment motion to
reconsider the dismissal of FOIA claim for failure to exhaust because "exhaustion must be
completed before initiating suit in order to realize the goal of allowing administrative
remedies to relieve the burden of litigation on the courts").
92

29

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

to dismissal because the "exhaustion of administrative remedies is a mandatory
prerequisite to a lawsuit under FOIA." 93 There have been times, however, when courts
have allowed the suit to proceed without exhaustion. 94
Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam) (citing Oglesby, 920 F.2d
at 61-64, 65 n.9); see, e.g., Freedom Watch, Inc. v. NSA, 783 F.3d 1340, 1344 (D.C. Cir.
2015) (upholding dismissal for failure to exhaust because requester "failed to internally
appeal the agencies' denials"); Almy v. DOJ, No. 96-1207, 1997 WL 267884, at *3 (9th Cir.
May 7, 1997) ("[T]he FOIA requires exhaustion of administrative remedies before the filing
of a lawsuit."); Taylor, 30 F.3d at 1367 ("The FOIA clearly requires a party to exhaust all
administrative remedies before seeking redress in the federal courts."); McDonnell v. United
States, 4 F.3d 1227, 1240, 1241 (3d Cir. 1993) (same); Voinche v. U.S. Dep't of the Air Force,
983 F.2d 667, 669 (5th Cir. 1993) ("We conclude that the FOIA should be read to require
that a party must present proof of exhaustion of administrative remedies prior to seeking
judicial review."); see also Scherer v. U.S. Dep't of Educ., 78 F. App'x 687, 690 (10th Cir.
2003) (affirming dismissal based on failure to exhaust because while plaintiff's "labors may
have been exhausting . . . he failed to pursue any of his requests as far as he could");
McKevitt v. Mueller, 689 F. Supp. 2d 661, 667 (S.D.N.Y 2010) (finding "no jurisdiction
under the FOIA, because the FOIA administrative process was never used"); Abou-Hussein
v. Gates, 657 F. Supp. 2d 77, 81 (D.D.C. 2009) (same). But cf. Bayala v. DHS, 827 F.3d 31
(D.C. Cir. 2016) (holding that plaintiff was not required to exhaust where defendant
"reversed course and spontaneously released a number of previously withheld documents"
shortly after plaintiff filed suit).
93

See, e.g., Nat'l Sec. Counselors v. DOJ, 848 F.3d 467, 470 (D.C. Cir. 2017) (allowing
plaintiff to maintain unexhausted claim because "two co-plaintiffs jointly asserting precisely
the same claim in the same action did exhaust"); Gonzales & Gonzales Bonds & Ins. Agency
v. DHS, No. 11-2267, 2012 WL 1815632, at *4 (N.D. Cal. May 17, 2012) (holding that courts
will not dismiss for failure to exhaust where "the party's claim rests upon statutory
interpretation – an area of court, rather than agency, expertise"); People for the Ethical
Treatment of Animals v. NIH, 853 F. Supp. 2d 146, 153 (D.D.C. 2012) (determining
plaintiff's failure to file timely administrative appeal did not bar court's consideration under
exhaustion where agency provided substantive response to untimely appeal), rev'd on other
grounds, 745 F.3d 535 (D.C. Cir. 2014); Skybridge Spectrum Found. v. FCC, 842 F. Supp. 2d
65, 77 (D.D.C. 2012) (finding doctrine of exhaustion did not bar judicial review where
agency failed to inform requester of exemption relied upon until its response to
administrative appeal); Am. Small Bus. League v. SBA, No. 09-1098, 2009 WL 1916896, at
*5 (N.D. Cal. July 1, 2009) (determining additional administrative review unnecessary
where that review is considered "futile" because agency's position appears to already be set),
rev'd on other grounds, 623 F.3d 1052 (9th Cir. 2010), cert. denied, 563 U.S. 989 (2011);
Fischer v. FBI, No. 07-2037, 2008 WL 2248711, at *2 (D.D.C. May 29, 2008) (permitting
plaintiff's suit to proceed despite failure to exhaust administrative remedies because
"considering [agency's] own disregard of the FOIA appeal deadline, jurisprudential
considerations strongly favor plaintiff's position"); Jones v. BOP, No. 03-1647, slip op. at 3
(D.D.C. May 18, 2004) (allowing plaintiff to maintain unexhausted claim that was
"substantially similar" to exhausted claim, because reaching its merits would not undermine
purposes of administrative review), summary affirmance granted, No. 04-5498 (D.C. Cir.
Jan. 20, 2006).
94

30

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

When a plaintiff has failed to exhaust administrative remedies, many courts have
held that dismissal is appropriate under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, treating exhaustion under the FOIA as essentially the same as a jurisdictional
requirement. 95 However, the Court of Appeals for the D.C. Circuit, 96 as well as the
See, e.g., McDonnell, 4 F.3d at 1240 & n.9 (affirming dismissal for lack of subject matter
jurisdiction because plaintiff failed to exhaust administrative remedies); Hymen v. MSPB,
799 F.2d 1421, 1423 (9th Cir. 1986) (same); Sharkey v. FBI, No. 16-837, 2017 WL 3336617,
at *16-17 (N.D. Ohio Aug. 4, 2017) (dismissing plaintiff's claim because "exhaustion is a
jurisdictional prerequisite in the Sixth Circuit"); Said v. Gonzales, No. 06-986, 2007 WL
2789344, at *6 (W.D. Wash. Sept. 24, 2007) (explaining that although D.C. Circuit views
exhaustion as "a prudential consideration rather than a jurisdictional prerequisite," instant
court must follow Ninth Circuit law which views exhaustion as "a jurisdictional
requirement"); Hardy v. Daniels, No. 05-955, 2006 WL 176531, at *1 (D. Or. Jan. 23, 2006)
("Where a plaintiff has failed to exhaust . . . the district court will dismiss the case for lack of
jurisdiction."); Snyder v. DOD, No. 03-4992, slip op. at 5 (N.D. Cal. Feb. 2, 2005) (finding
that "exhaustion goes to court's subject matter jurisdiction"); Thomas v. IRS, No. 03-CV2080, 2004 WL 3185320, at *1 (M.D. Pa. Nov. 16, 2004) (concluding that court lacks
jurisdiction because plaintiff failed to exhaust his administrative remedies), aff'd, 153 F.
App'x 89 (3d Cir. 2005); McMillan v. Togus Reg'l Office, VA, No. 03-CV-1074, 2003 WL
23185665, at *1 (E.D.N.Y. Nov. 18, 2003) (dismissing unexhausted FOIA claim because
"[s]ubject matter jurisdiction is lacking"), aff'd, 120 F. App'x 849 (2d Cir. 2005); Redding v.
Christian, 161 F. Supp. 2d 671, 674 (W.D.N.C. 2001) (finding that "when this action was
filed, this court lacked jurisdiction over the subject matter of this case as a matter of law
because plaintiff had not sought any administrative remedies, much less exhausted them");
Jones v. Shalala, 887 F. Supp. 210, 214 (S.D. Iowa 1995) (declaring that failure to exhaust
administrative remedies deprives court of jurisdiction to compel disclosure of records); cf.
Kemmerly v. DOI, 430 F. App'x 303, 303 (5th Cir. 2011) (affirming district court's grant of
defendant's motion to dismiss for lack of subject matter jurisdiction "for failure to exhaust
administrative remedies" where plaintiff failed to pay fees).
95

See Hildalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (finding exhaustion
requirement is not jurisdictional because "the FOIA does not unequivocally make it so," but
then explaining that exhaustion is required if "'the purposes of exhaustion' and the
'particular administrative scheme' support such a bar" (quoting Oglesby, 920 F.2d at 61));
see also Pinson v. DOJ, No. 12-1872, 2016 WL 29245, at *12 (D.D.C. Jan. 4, 2016) (noting
that "FOIA's exhaustion requirement is a prudential consideration, rather than a
jurisdictional prerequisite); Isiwele v. HHS, 85 F. Supp. 3d 337, 354 (D.D.C. 2015) (same);
Hines v. U.S., 736 F. Supp. 2d 51, 53 (D.D.C. 2010) (dismissing claim for failure to exhaust
administrative remedies while noting that "the exhaustion requirement is a prudential
consideration, not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust
does not deprive the court of subject-matter jurisdiction"); Jones v. DOJ, 576 F. Supp. 2d
64, 66 (D.D.C. 2008) ("It is settled in this circuit, however, that exhaustion of
administrative remedies in a FOIA case is not a jurisdictional bar to judicial review . . . the
matter is properly the subject of a motion brought under Rule 12(b)(6) for failure to state a
claim upon which relief may be granted."); Skrzypek v. U.S. Dep't of Treasury, 550 F. Supp.
2d 71, 73 (D.D.C. 2008) (explaining that exhaustion requirement under FOIA is "'a
jurisprudential doctrine' rather than a jurisdictional prerequisite," and accordingly
96

31

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Eleventh Circuit, 97 the Tenth Circuit, 98 and the Seventh Circuit, 99 as well as the lower
courts within the Fifth Circuit 100 and Second Circuit 101 have held that exhaustion of
administrative remedies in a FOIA case is "a jurisprudential doctrine" rather than a
jurisdictional prerequisite and therefore Rule 12(b)(6) is the appropriate vehicle for
dismissal based on a failure to exhaust administrative remedies.
To exhaust administrative remedies a requester must first follow agency
regulations, 102 including making a proper FOIA request in the first instance as well as
reviewing agency's motion to dismiss under Rule 12(b)(6)); Bestor v. CIA, No. 04-2049,
2005 WL 3273723, at *3 (D.D.C. Sept. 1, 2005) (dismissing complaint under Rule 12(b)(6)
where plaintiff failed to "allege or demonstrate" that he exhausted his administrative
remedies).
See Thompson v. U.S. Marine Corp., 398 F. App'x 532, 532 (11th Cir. 2010) (maintaining
that "[e]xhaustion of administrative remedies is not a jurisdictional requirement, but
'performs a function similar to the judicial doctrine of ripeness by postponing judicial
review'" (quoting Taylor, 30 F.3d at 1367)).
97

See Watters v. DOJ, 576 F. App'x 718, 721 (10th Cir. 2014) (noting that exhaustion of
administrative remedies is "prudential matter"); Hull v. IRS, 656 F.3d 1174, 1181 (10th Cir.
2011) (finding "exhaustion under FOIA is a prudential consideration rather than a
jurisdictional prerequisite").
98

See Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir. 1988) (ruling that plaintiff failed to
state claim when he failed to allege exhaustion of administrative remedies).
99

See Gambini v. U.S. Customs Serv., No. 5:01-CV-300, 2001 U.S. Dist. LEXIS 21336, at
*4-5 (N.D. Tex. Dec. 21, 2001) (dismissing complaint under Rule 12(b)(6) because plaintiff
had not exhausted administrative remedies).
100

See Kennedy v. DHS, No. 03-6076, 2004 WL 2285058, at *4-5 (W.D.N.Y. Oct. 8, 2004)
(noting that "[t]he precise nature of the exhaustion requirement is not well-settled," but
concluding that it is "not jurisdictional"). But see Robert VIII v. DOJ, 2005 WL 3371480, at
*7 (holding that "court lacks subject matter jurisdiction over a requester's claim where the
requester has failed to exhaust the administrative remedies provided under the FOIA
statute"); McMillan v. Togus Reg'l Office, VA, 2003 WL 23185665, at *1 (dismissing
unexhausted FOIA claim because "[s]ubject matter jurisdiction is lacking"), aff'd, 120 F.
App'x 849 (2d Cir. 2005).
101

See, e.g., Wilson v. DOT, 730 F. Supp. 2d 140, 151 (D.D.C. 2010) (finding failure to
exhaust even when plaintiff lodged complaints with several DOT offices and requested
mediation because those efforts did not comply with DOT's FOIA regulations); Calhoun v.
DOJ, 693 F. Supp. 2d 89, 91 (D.D.C. 2010) ("Where a FOIA request is not made in
accordance with the published regulations, the FOIA claim is subject to dismissal for failure
to exhaust administrative remedies."), aff'd, No. 10-5125, 2010 WL 4340370, at *1 (D.C. Cir.
Oct. 19, 2010); McDermott v. Potter, No. 09-0776, 2009 WL 2971585, at *1 (W.D. Wash.
Sept. 11, 2009) ("It is not enough to simply ask any government employee for the
102

32

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

filing an administrative appeal after receiving an agency's final determination. 103 (For a
further discussion of the requirements for making requests and filing administrative
appeals, see Procedural Requirements, Proper FOIA Requests, and Procedural
Requirements, Administrative Appeals, above.) Courts have found that a plaintiff has
not exhausted his administrative remedies when he attempts to file a new request and/or
expand the scope of his original FOIA request as part of a judicial proceeding. 104
documents" requester must follow published agency regulations), aff'd, 408 F. App'x 51 (9th
Cir. 2011); Booth v. IRS, No. 09-0637, 2009 WL 2031766, at *4 (E.D. Cal. July 9, 2009)
(determining that plaintiff failed to exhaust administrative remedies by failing to comply
with IRS regulations when he sent request to wrong address).
See, e.g., DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015) (observing that to allow
requester to "pursue judicial review without benefit of prior OIP consideration [on
administrative appeal] would undercut the purposes of exhaustion" (quoting Hidalgo v. FBI,
344 F.3d 1256, 1259 (D.C. Cir. 2003))); Davidson v. BOP, No. 15-351, 2017 WL 1217168
(E.D. Ky. Mar. 31, 2017) (holding that "the plaintiff in a FOIA action bears the burden of
demonstrating not merely that he mailed a request, but that the agency actually received
it"); Pinson v. DOJ, 145 F. Supp. 3d 1, 10 (D.D.C.2015) ("In order to have fully exhausted
his administrative remedies, and before his claim can be heard before this Court,
[requester] must appeal the EOUSA's decision to OIP."); Ebling v. DOJ, 796 F. Supp. 2d 52,
65 (D.D.C. 2011) (dismissing part of plaintiff's claim for failure to exhaust where DOJ had
no record of receiving administrative appeal); Powell v. Gibbons, No. 3:09-cv-00093, 2010
WL 4293278, at *6 (D. Nev. Oct. 20, 2010) (dismissing plaintiff's FOIA count for failing to
allege "full and proper" request was made), aff'd, 453 F. App'x 712 (9th Cir. 2011); Brown v.
FBI, 675 F. Supp. 2d 122, 127 (D.D.C. 2009) (dismissing FOIA claim for plaintiff's failure to
properly submit request even though FBI responded to attempted request); PickeringGeorge v. Registration Unit, DEA/DOJ, 553 F. Supp. 2d 3, 4 (D.D.C. 2008) (dismissing
plaintiff's FOIA claim when agency had no record of receiving it); Banks v. DOJ, 538 F.
Supp. 2d 228, 234 (D.D.C. 2008) (finding that plaintiff failed to exhaust administrative
remedies because agencies had no records of plaintiff's requests); Arnold v. U.S. Secret
Serv., No. 05-0450, 2006 WL 2844238, at *2 (D.D.C. Sept. 29, 2006) (holding that
"certified mail return receipt is not competent evidence of plaintiff's compliance with the
FOIA's exhaustion requirement"); Schoenman v. FBI, No. 04-2202, 2006 WL 1126813, at
*13 (D.D.C. Mar. 31, 2006) (dismissing FOIA claims where agencies contended that they
never received requests, and noting that plaintiff provided no proof that draft requests on
his counsel's computer were ever mailed and received and declaring that "[w]ithout a copy
of a stamped envelope . . . or a returned receipt . . . [p]laintiff cannot meet the statutory
requirements under FOIA"); Antonelli v. ATF, No. 04-1180, 2005 WL 3276222, at *5
(D.D.C. Aug. 16, 2005) (finding that plaintiff failed to sufficiently demonstrate that FOIA
requests were submitted to agency, which could not locate them in its files, even though
plaintiff produced copies of requests and asserted that he mailed them); cf. Chelmowski v.
FCC, No. 16-5587, 2017 WL 736893, at *8 (N.D. Ill. Feb. 24, 2017) (finding that a request to
OGIS for assistance does not supplant an application for review by the defendant agency);
103

See Gillin v. IRS, 980 F.2d 819, 823 n.3 (1st Cir. 1992) (per curiam) (ruling that plaintiff
cannot expand scope of FOIA request "after the agency has responded and litigation has
commenced"); Pray v. DOJ, 902 F. Supp. 1, 2-3 (D.D.C. 1995) (disallowing request to FBI
field office "made only in response to the government's motion for summary judgment"),
104

33

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Constructive Exhaustion
The FOIA permits requesters to treat an agency's failure to comply with its time
limits as "constructive," exhaustion of administrative remedies. 105 Thus, when an agency
"fails to comply with the applicable time limit provisions" of the FOIA, 106 the requester is
deemed to have exhausted his administrative remedies and can seek immediate judicial
review, even though the requester has not filed an administrative appeal. 107
aff'd in part & remanded in part on other grounds, No. 95-5383, 1996 WL 734142, at *1
(D.C. Cir. Nov. 20, 1996); Pollack v. DOJ, No. 89-2569, 1993 WL 293692, at *4 (D. Md. July
23, 1993) (finding that court lacks subject matter jurisdiction when request not submitted
until after litigation filed), aff'd on other grounds, 49 F.3d 115 (4th Cir. 1995); cf. Serv.
Women's Action Network v. DOD, 570 F. App'x 54, 55 (2d Cir. 2014) (noting that "it is
doubtful whether permitting FOIA litigants to narrow their requests at will in the midst of
ongoing litigation would not itself destroy the 'prompt' and 'efficient' disclosure of
government records"). But cf. Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003,
2004 WL 3426434, at *11 (D.N.M. Feb. 28, 2004) (rejecting agency's argument that
plaintiff's attempt to narrow scope of its request – during the course of litigation -- was
tantamount to failure to exhaust and stating that "there is no evidence in record that the
[agency] would reach a different conclusion if given the opportunity to decide a more
narrow FOIA request"), rev'd & remanded on other grounds, 416 F.3d 1173 (10th Cir. 2005).
See 5 U.S.C. § 552(a)(6)(C) (2012 & Supp. IV 2017); see also Nurse v. Sec'y of the Air
Force, 231 F. Supp. 2d 323, 328 (D.D.C. 2002) ("The FOIA is considered a unique statute
because it recognizes a constructive exhaustion doctrine for purposes of judicial review
upon the expiration of certain relevant FOIA deadlines.").
105

106

5 U.S.C. § 552(a)(6)(A)(i).

See, e.g., Calhoun, 546 F. App'x 487, 490 (5th Cir. 2013) (finding requester deemed to
have exhausted administrative remedies where "agency fails to respond to a FOIA request in
a timely manner"); Pollack v. DOJ, 49 F.3d 115, 118-19 (4th Cir. 1995) ("Under FOIA's
statutory scheme, when an agency fails to comply in a timely fashion with a proper FOIA
request, it may not insist on the exhaustion of administrative remedies unless the agency
responds to the request before suit is filed."); Campbell v. Unknown Power Superintendent
of the Flathead Irrigation & Power Project, No. 91-35104, 1992 WL 84315, at *1 (9th Cir.
Apr. 22, 1992) (noting that exhaustion is deemed to have occurred if agency fails to respond
to request within statutory time limit); Pinson v. DOJ, 145 F. Supp. 3d 1, 10 (D.D.C. 2015)
(finding constructive exhaustion as to some of plaintiff's claims due to agency's failure to
respond to certain requests before requester filed suit); Accuracy in Media, Inc. v. NTSB,
No. 03-0024, 2006 WL 826070, at *6 (D.D.C. Mar. 29, 2006) (finding constructive
exhaustion because plaintiff filed its FOIA Complaint seven months after NTSB received its
request and before NTSB complied with it); Hall v. CIA, No. 04-0614, 2005 WL 850379, at
*2 & n.6 (D.D.C. Apr. 13, 2005) (finding constructive exhaustion where plaintiff filed suit
prior to CIA's belated response to his request); cf. Or. Natural Desert Ass'n, 409 F. Supp. 2d
at 1247 (finding constructive exhaustion with respect to "cut-off" date challenge, even
though plaintiff did not raise such claim in its administrative appeal, because document
107

34

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The United States Court of Appeals for the District of Columbia Circuit has
addressed the issue of "what kind of agency response qualifies as a 'determination'" under
the FOIA in order to trigger the requirement that the requester exhaust administrative
remedies (i.e., file an administrative appeal) prior to filing suit. 108 In Citizens for
Responsibility & Ethics in Washington v. FEC, the D.C. Circuit held that the FOIA
"requires that, within the relevant time period, an agency must determine whether to
comply with a request – that is, whether a requester will receive all of the documents the
requester seeks." 109 The court held that this means that "within the relevant time period,
the agency must at least inform the requester of the scope of the documents that the
agency will produce, as well as the scope of the documents that the agency plans to
withhold under any FOIA exemptions." 110 To "make a 'determination' and thereby trigger
the administrative exhaustion requirement, the agency must at least: (i) gather and review
the documents; (ii) determine and communicate the scope of the documents it intends to
produce and withhold, and the reasons for withholding any documents; and (iii) inform
the requester that it can appeal whatever portion of the 'determination' is adverse." 111 The
D.C. Circuit clarified that "a 'determination' does not require actual production of the
records to the requester at the exact same time that the 'determination' is communicated
to the requester." 112 The court concluded that what the FOIA does require is that the
agency make the records "promptly available" which "typically would mean within days
or a few weeks of a 'determination,' not months or years." 113
production from agency and referral agencies continued after plaintiff filed suit and plaintiff
could not have foreseen effect of "cut-off" policy at time appeal was filed); Anderson v.
USPS, 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998) (finding that "vague positive response" from
agency received after statutory time limit allows plaintiff to claim "constructive"
exhaustion), aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision).
108

Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2012).

Id. at 186; see also Amadis v. DOJ, No. 16-2230, 2019 WL 400619, at *5 (D.D.C. Jan. 31,
2019) (holding that "[a]n agency's offer to conduct an 'additional' search does not alter the
final, appealable nature of its determination[;] [i]nstead, it allows a requester additional
process that is not required by FOIA).
109

110

Id.

Id. at 188 (summarizing that "agency usually has 20 working days to make a
'determination,'" that this can be extended "to 30-working days if unusual circumstances
delay the agency's ability to search for, collect, examine, and consult about the responsive
documents," and if more time is needed, "exhaustion requirement will not apply" but "in
exceptional circumstances, the agency may continue to process the request," and if litigation
has been filed, court "will supervise the agency's ongoing process.").
111

112

Id.

113

Id.
35

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The D.C. Circuit has held that the right to immediate judicial review that arises
from the lack of a timely determination lapses if an agency responds to a request at any
time before the requester's FOIA suit is filed; in that situation, the requester must
administratively appeal a denial and wait at least twenty working days for the agency to
adjudicate that appeal – as is required by 5 U.S.C. § 552(a)(6)(A)(ii) – before commencing
litigation. 114 This latter point was established by the Court of Appeals for the District of
Columbia Circuit in Oglesby v. U.S. Department of the Army, which held that "an
administrative appeal is mandatory if the agency cures its failure to respond within the
statutory period by responding to the FOIA request before suit is filed." 115 Thus, under
Oglesby, if a FOIA requester waits beyond the statutory deadline for the agency's initial
response and then, in fact, receives that response before suing the agency, the requester
must exhaust his administrative appeal rights before litigating the matter. 116 If an agency
See, e.g., Oglesby v. U.S. Department of the Army, 920 F.2d 57, 63 (D.C. Cir. 1990)
(ruling that if requester receives agency response before filing suit – even response that is
untimely – requester must submit an administrative appeal before filing suit); Pinson, 2015
WL 7008124, at *6 (same); Schwaner v. Dep't of the Army, 696 F. Supp. 2d 77, 81 (D.D.C.
2010) (same); cf. Citizens for Responsibility & Ethics in Wash. v. Bd. of Governors of the
Fed. Reserve, 669 F. Supp. 2d 126, 130 (D.D.C. 2009) (finding plaintiff failed to exhaust
administrative remedies when agency correspondence regarding ten-day working extension
was sent before plaintiff filed complaint, even though it was not received until day
complaint was filed); Percy Squire Co. v. FCC, No. 09-428, 2009 WL 2448011, at *5 (S.D.
Ohio Aug. 7, 2009) (finding that agency cured its untimely response when requesters agreed
to phased response before filing suit).
114

115

920 F.2d at 63.

See 920 F.2d at 63-64; see also, e.g., Rease v. Harvey, 238 F. App'x 492, 495 (11th Cir.
2007) ("Even when an agency belatedly responds to a FOIA request, the requester still must
exhaust his administrative remedies."); Almy v. DOJ, No. 96-1207, 1997 WL 267884, at *2-3
(7th Cir. May 7, 1997) (holding that requester's failure to appeal agencies' "no records"
responses constitutes "failure to exhaust his administrative remedies"); Taylor v. Appleton,
30 F.3d 1365, 1369 (11th Cir. 1994) ("We therefore join the District of Columbia Circuit and
the Third Circuit on this issue."); McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir.
1993) (applying Oglesby); Yang v. IRS, No. 06-1547, 2006 WL 2927548, at *2 (D. Minn. Oct.
12, 2006) (same); Hardy v. Lappin, No. 03-1949, 2005 WL 670753, at *1 (D.D.C. Mar. 21,
2005) (same); Allen v. IRS, No. 03-1698, 2004 WL 1638155, at *1 (D. Ariz. June 15, 2004)
(same), aff'd on other grounds, 137 F. App'x 22 (9th Cir. 2005); Judicial Watch, Inc. v. FBI,
190 F. Supp. 2d 29, 33 (D.D.C. 2002) (same); Samuel v. DOJ, No. 93-0348, slip op. at 3-4
(D. Idaho Feb. 3, 1995) (same); Sloman v. DOJ, 832 F. Supp. 63, 66-67 (S.D.N.Y. 1993)
(same); cf. Mosby v. Hunt, No. 09-1917, 2010 WL 1783536, at *3 (D.D.C. May 5, 2010)
(finding requester failed to exhaust administrative remedies where OIP had remanded
request to component for additional search and a final determination had not been
rendered), aff'd on other grounds, No. 10-5296, 2011 WL 3240492, at *1 (D.C. Cir. July 6,
2011). But cf. Wadhwa v. VA, 342 F. App'x 860, 862 (3rd Cir. 2009) (finding that although
agency sent response, "[u]nder FOIA's constructive exhaustion provision, [plaintiff] was not
required to exhaust administrative remedies if he did not receive a response to his FOIA
116

36

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

makes an adverse determination after the requester has filed suit, however, the requester
need not first administratively appeal that determination before pressing forward with
the court action. 117
Even in instances where the agency has provided a timely response the requester's
exhaustion obligation may be excused if the agency's response fails to supply notice of the
right to file an administrative appeal as required by 5 U.S.C. § 552(a)(6)(A)(i), 118 or
request before filing suit") (unpublished table decision); Thomas v. Comptroller of the
Currency, 684 F. Supp. 2d 29, 32 (D.D.C. 2010) (finding constructive exhaustion where
defendant's initial response was untimely and it was undisputed that plaintiff never received
any response sent); Rosenfeld v. DOJ, No. 07-03240, 2008 WL 3925633, at *9 (N.D. Cal.
Aug. 22, 2008) (finding that plaintiff exhausted administrative remedies in spite of failure
to appeal from FBI's interim response to one of requests); Or. Natural Desert Ass'n, 409 F.
Supp. 2d at 1247 (finding some "difficulty in applying Oglesby" when agency responds in
piecemeal fashion).
See Pollack, 49 F.3d at 119 (holding that "it was error for the district court to conclude
that it was somehow deprived of jurisdiction because [the requester] failed to file
administrative appeals . . . during the litigation"); Pinson, 2015 WL 7008124, at *6 ("Where,
as here, the agency belatedly responds only after the plaintiff has filed suit, the plaintiff is
nevertheless considered to have constructively exhausted his administrative remedies.");
Zander v. DOJ, No. 10-2000, 2011 WL 1775059, at *1 (D.D.C. May 10, 2011) ("Moreover,
where, as in this case, an agency has failed to timely respond to a FOIA request and a
requester commenced a FOIA action before the agency made any response whatsoever, a
request is deemed to have constructively exhausted his administrative remedies and does
not need to first administratively appeal an adverse determination before proceeding with
already-begun litigation." (citing Pollack, 49 F.3d at 119)); Lewis v. DOJ, 733 F. Supp. 2d 97,
106-07 (D.D.C. 2010) (finding agency's failure in providing substantive response until after
plaintiff filed lawsuit made it "not reasonable to expect plaintiff to exhaust his
administrative remedies by filing an appeal . . . and the law does not require him to do so");
Crooker v. Tax Div. of DOJ, No. 94-30129, 1995 WL 783236, at *8 (D. Mass. Nov. 17, 1995)
(magistrate's recommendation) (concluding that disclosures made during litigation did not
moot plaintiff's complaint based on agency's failure to respond; instead complaint
"remained alive to test the adequacy of the disclosures, once made"), adopted, (D. Mass.
Dec. 15, 1995), aff'd on other grounds per curiam, No. 96-1094 (1st Cir. Aug. 20, 1996). But
cf. Calhoun, 546 F. App'x at 490 (holding that although FBI did not produce responsive
records until after lawsuit was filed, requester must still challenge adequacy of search
"through the appropriate administrative appeals process" and, therefore, lower court's
dismissal for failure to exhaust was proper); Voinche v. FBI, 999 F.2d 962, 963-64 (5th Cir.
1993) (holding that in action based on agency's failure to comply with FOIA's time limits for
responses, disclosures made only after litigation commenced rendered action moot).
117

See Ruotolo v. DOJ, 53 F.3d 4, 9 (2d Cir. 1995) (holding that exhaustion requirement not
triggered when agency response contained no notification of right to administratively
appeal); Oglesby, 920 F.2d at 65 (finding exhaustion requirement only triggered if response
includes "the agency's determination of whether or not to comply with the request; the
reasons for its decision; and notice of the right of the requester to appeal"); Isiwele v. HHS,
118

37

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

ultimately to supply notice of the right to seek court review at the conclusion of the
administrative appeal process. 119 However, so long as such notice is given, there is no
particular formula or set of "magic words" that the agency must employ in giving it.120
(For further discussions of administrative notification requirements, see Procedural
Requirements, Responding to FOIA Requests, above; and Procedural Requirements,
Administrative Appeals, above.) Furthermore, Oglesby counsels that a requester must
file an administrative appeal within the time limit specified in an agency's FOIA
regulations or else face dismissal for failure to exhaust administrative remedies. 121
85 F. Supp. 3d 337, 352 (D.D.C. 2015) (finding that "an agency's failure to 'provide notice [to
the requester] of [his] right to appeal' an adverse decision to the head of the agency is
'insufficient under the FOIA to trigger the exhaustion requirement'" (quoting Oglesby, 920
F.2d at 67)); Ozment v. DHS, No. 11-429, 2011 WL 6026590, at *2 (M.D. Tenn. Dec. 1, 2011)
(finding agency's notice insufficient although within statutory time period where notice did
not provide administrative appeal rights); Thomas v. HHS, 587 F. Supp. 2d 114, 117-18
(D.D.C. 2008) (finding constructive exhaustion because agency did not advise plaintiff of
appeal rights nor respond to plaintiff's appeal of constructive denial); In Def. of Animals v.
NIH, 543 F. Supp. 2d 83, 97 (D.D.C. 2008) (holding that agency's action "did not trigger the
exhaustion requirement" because agency notified plaintiff of right to file administrative
appeal only after plaintiff filed suit); Leinbach v. DOJ, No. 05-744, 2006 WL 1663506, at *6
(D.D.C. June 14, 2006) (excusing plaintiff's failure to file administrative appeal, because
agency's response letter failed to provide him with "[correct] information regarding the
administrative process to be followed"); Lamb v. IRS, 871 F. Supp. 301, 303 (E.D. Mich.
1994) (declaring that failure to inform requester of his right to appeal constitutes failure to
comply with statutory time limits, thus permitting lawsuit). But cf. Envtl. Prot. Info. Ctr. &
Forest Issues Group v. U.S. Forest Serv., No. 03-cv-449, slip op. at 8 (N.D. Cal. Oct. 14,
2003) (holding that "[t]he requirements under 5 U.S.C. § 552(a)(6)(A)(i) pertain [only] to
the agency's decision whether or not to release the requested files," not to its decision to
provide records in format different from that requested), rev'd & remanded on other
grounds, 432 F.3d 945 (9th Cir. 2005).
See Nurse, 231 F. Supp. 2d at 328-29 (finding that agencies are required to notify
requesters of right to judicial review just as agencies are required to notify requesters of
right to administratively appeal).
119

See Kay v. FCC, 884 F. Supp. 1, 2-3 (D.D.C. 1995) (upholding letter which "gave the
Plaintiff notice of his right to secure further agency review of the adverse determination, of
the manner in which he could exercise that right, of the time limits for filing such request,
and of the regulatory provisions containing general procedures pertaining to review
applications"); see also Jones v. DOJ, No. 94-2294, slip op. at 5 (D. Md. Jan. 18, 1995)
(finding that requester not relieved of appeal obligation simply because agency response
included statement that requester would be notified if missing records were later located;
response letter also advised that it constituted "final action" of agency component and
notified plaintiff of right to administratively appeal).
120

See Oglesby, 920 F.2d at 65 n.9 (citing regulations of agencies involved); ExxonMobil
Corp. v. Dep't of Commerce, 828 F. Supp. 2d 97, 104 (D.D.C. 2001) (holding that "a
requester under FOIA must file an administrative appeal within the time limit specified in
121

38

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Whether the agency has met or exceeded its statutory time period for making a
determination on a request or appeal, 122 requesters have been deemed not to have
constructively exhausted administrative remedies when they have failed to comply with
the necessary requirements of the FOIA's administrative process. This has been the case,
for example, when requesters have failed to:

an agency's FOIA regulations or face dismissal of any lawsuit complaining about the
agency's response"); Hamilton Sec. Group, Inc. v. HUD, 106 F. Supp. 2d 23 (D.D.C. 2000)
(finding that requester failed to exhaust administrative remedies when it submitted
administrative appeal one day after agency's regulatory time period had expired), summary
affirmance granted, No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001) (per curiam);
Voinche v. CIA, No. 96-1708, slip op. at 3 (W.D. La. Nov. 25, 1996) (holding that plaintiff's
filing of administrative appeal eleven months after agency's response justifies dismissal
notwithstanding delay of almost four years by agency in responding to request), appeal
dismissed as frivolous, 119 F.3d 3 (5th Cir. 1997) (unpublished table decision). But cf.
People for the Ethical Treatment of Animals v. NIH, 853 F. Supp. 2d 146, 152 (D.D.C. 2012)
(finding that requester did exhaust administrative remedies although it filed administrative
appeal late where agency nevertheless provided substantive response to appeal); Kennedy v.
DOJ, No. 93-0209, slip op. at 2-3 (D.D.C. July 12, 1993) (explaining that when requester's
affidavit attests to mailing of timely administrative appeal but agency affidavit denies
receipt, court may permit requester additional time to submit another appeal and agency
additional time to respond; "nothing in the FOIA statute or regulations requires the Plaintiff
to do more than mail his administrative appeal in a timely fashion").
122

See 5 U.S.C. § 552(a)(6)(A)-(B).
39

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(1) provide required proof of identity 123 in first-party requests 124 or disclosure
authorization by third parties when required by agency regulations; 125
See Summers v. DOJ, 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that authorization
for release of records need not be notarized, but can be attested to under penalty of perjury
pursuant to 28 U.S.C. § 1746 (2011)); Ramstack v. Dep't of the Army, 607 F. Supp. 2d 94,
102-103 (D.D.C. 2009) (holding that plaintiff failed to exhaust administrative remedies
because request was not notarized or submitted under penalty of perjury as required by
agency's regulations).
123

See Ruston v. BOP, No. 10-0917, 2010 WL 2266065, at *1 (D.D.C. June 4, 2010) (finding
agency had no obligation to respond to request when requester did not provide certification
of identity); Banks v. DOJ, 538 F. Supp. 2d 228, 234 (D.D.C. 2008) (dismissing FOIA claim
where plaintiff failed to provide verification of identity); Lee v. DOJ, 235 F.R.D. 274, 286
(W.D. Pa. 2006) (dismissing FOIA claims because plaintiff failed to verify his identity in
accordance with agency regulations by omitting his full name and place of birth from his
request); Davis v. U.S. Attorney, Dist. of Md., No. 92-3233, slip op. at 2-3 (D. Md. July 5,
1994) (dismissing suit without prejudice when plaintiff failed to provide identification by
notarized consent, attestation under 28 U.S.C. § 1746, or alternative form of identification in
conformity with agency regulations); Lilienthal v. Parks, 574 F. Supp. 14, 18 (E.D. Ark.
1983) (holding that plaintiff failed to exhaust administrative remedies because plaintiff did
not submit proper identification in accordance with IRS regulations).
124

Compare Strunk v. Dep't of State, 693 F. Supp. 2d 112, 115 (D.D.C. 2010) (finding
plaintiff's third-party request not proper because it failed to include written authorization
from third party), Penny v. DOJ, 662 F. Supp. 2d 53, 54-55 (D.D.C. 2009) (dismissing FOIA
claim as to third parties when plaintiff failed to submit privacy waivers before commencing
lawsuit), Pusa v. FBI, No. 99-04603, slip op. at 5 (C.D. Cal. Aug. 5, 1999) (dismissing case
because plaintiff did not comply with agency regulations concerning third-party requests),
Harvey v. DOJ, No. CV 92-176, slip op. at 17-18 (D. Mont. Jan. 9, 1996) (declining to grant
motion for production of third-party records because plaintiff failed to submit authorization
at the administrative level), aff'd on other grounds, 116 F.3d 484 (9th Cir. June 3, 1997)
(unpublished table decision), and Freedom Magazine v. IRS, No. 91-4536, 1992 U.S. Dist.
LEXIS 18099, at *10-13 (C.D. Cal. Nov. 13, 1992) (finding that court lacked jurisdiction
when, prior to filing suit, plaintiff failed to provide waivers for third-party records as
required by IRS regulations), with Lewis v. DOJ, 609 F. Supp. 2d 80, 83 (D.D.C. 2009)
(holding that according to agency's regulations privacy waivers "[are] 'help[ful]' but not
required," but nonetheless concluding that "defendant properly invoked the FOIA's personal
privacy provisions – exemptions 6 and 7(C) – to justify its categorical denial of the request
for third-party records"), and Martin v. DOJ, No. 96-2866, slip op. at 7-8 (D.D.C. Dec. 15,
1999) (ruling that agency was not justified in refusing to process third-party request in
absence of privacy waiver because agency's regulation on privacy waivers was permissive,
not mandatory, but nevertheless dismissing complaint because all records would be subject
to Exemption 7(C) protection in any event). But see Gonzales & Gonzales Bonds & Ins.
Agency, Inc. v. DHS, 913 F. Supp. 2d 865, 880 (N.D. Cal. 2012) (enjoining agency from
using regulation which made authorized consent by third-party mandatory, not permissive,
before considering FOIA request perfected).
125

40

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(2) "reasonably describe" the records sought; 126
(3) comply with fee requirements; 127
See, e.g., Gillin v. IRS, 980 F.2d 819, 822-23 (1st Cir. 1992) (deciding that request for
records "used as a basis to conclude there was a deficiency in [requester's] tax return" did
not "reasonably describe" records of the agency's field examination of requester's tax return,
since agency concluded after completion of its field examination that there was no
deficiency); Vest v. Dep't of the Air Force, 793 F. Supp. 2d 103, 113 (D.D.C. 2011) (finding
failure to exhaust because requester's unperfected request did not trigger agency's
obligations to provide appeal rights under FOIA); Exxon Mobile Corp. v. DOI, No. 09-6732,
2010 WL 2653353, at *8 (E.D. La. June 29, 2010) (finding that requests which seek "any
and all documents," "any documents," or "all documents" are "impermissibly broad and do
not comply with FOIA's requirement that the request for records 'reasonably describe[] such
records'" (quoting 5 U.S.C. § 552(a)(3)(A))); Latham v. DOJ, 658 F. Supp. 2d 155, 161
(D.D.C. 2009) (holding that requester did not reasonably describe records sought and
therefore requester "has not submitted a proper FOIA request [and] has not exhausted his
administrative remedies"); Keys v. DHS, No. 08-0726, 2009 WL 614755, at *5 (D.D.C. Mar.
10, 2009) (holding that plaintiff failed to exhaust administrative remedies because plaintiff
did not reasonably describe records sought by not responding to EOUSA's request that he
identify specific offices to be searched); Dale v. IRS, 238 F. Supp. 2d 99, 104-05 (D.D.C.
2002) (finding that agency is "under no obligation to release records that have not been
reasonably described" and that requests which fail to conform to agency requirements
"amount[] to an all-encompassing fishing expedition . . . at taxpayer expense"); see also
Voinche v. U.S. Dep't of the Air Force, 983 F.2d 667, 669 n.5 (5th Cir. 1993) (concluding
that administrative remedies on fee waiver request were not exhausted when requester
failed to amend request to achieve specificity required by agency regulations).
126

See, e.g., Reynolds v. Att'y Gen. of the U.S., 391 F. App'x 45, 46 (2d Cir. 2010) (affirming
dismissal for failure to exhaust because plaintiff failed to either pay or request waiver of
assessed fees); Pollack, 49 F.3d at 119-20 (rejecting plaintiff's argument that untimeliness of
agency response required it to provide documents free of charge); Pinson v. DOJ, 2016 WL
29245, at *12 (D.D.C. Jan. 4, 2016) (noting that when agency seeks advance payment,
requester has not exhausted administrative unless fees are paid or administrative appeal is
filed); McLaughlin v. DOJ, 598 F. Supp. 2d 62, 66 (D.D.C. 2009) (concluding that plaintiff
failed to exhaust administrative remedies by not paying duplication fee); Kurdyukov v. DEA,
578 F. Supp. 2d 61, 65-66 (D.D.C. 2008) (holding that agency's failure to comply with
FOIA's statutory time limits does not relieve plaintiff from obligation to exhaust
administrative remedies by either paying fees or appealing denial of fee waiver); Banks, 538
F. Supp. 2d at 237 (finding that plaintiff failed to exhaust administrative remedies by not
paying aggregated fees); Ivey v. Snow, No. 05-CV-1095, 2006 WL 2051339, at *4 (D.D.C.
July 20, 2006) (finding that plaintiff failed to exhaust administrative remedies, because he
neither paid fees associated with requests nor sought fee waiver), aff'd, 227 F. App'x 1 (D.C.
Cir. 2007); Hicks v. Hardy, No. 04-769, 2006 WL 949918, at *2 (D.D.C. Apr. 12, 2006)
(holding that "plaintiff cannot maintain his claim without paying the assessed fee," and
explaining that this holds true "[r]egardless of whether . . . plaintiff 'filed' suit before or after
receiving a request for payment"); Thorn v. United States, No. 04-1185, 2005 WL 3276285,
at *1-2 (D.D.C. Aug. 11, 2005) (finding that plaintiff's administrative remedies were not
exhausted, because he failed to pay assessed fees, and noting that "[c]ommencement of a
127

41

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(4) pay authorized fees incurred in a prior request before making new requests; 128
(5) present for review at the administrative appeal level any objection to earlier
processing practices; 129
civil action pursuant to FOIA does not relieve a requester of his obligation to pay any
required fees"); Ctr. to Prevent Handgun Violence v. Dep't of Treasury, 981 F. Supp. 20, 23
(D.D.C. 1997) (rejecting requester's "equitable tolling" argument; requester's agreement to
accept sampling of documents for free does not excuse noncompliance with exhaustion
requirement in subsequent fee waiver suit covering all records); Trueblood v. U.S. Dep't of
the Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) ("Regardless of whether the plaintiff 'filed'
suit before or after receiving a request for payment, the plaintiff has an obligation to pay for
the reasonable copying and search fees assessed by the defendant."); see cf. Francis v. FBI,
No. 06-0968, 2008 WL 1767032, at *7 (E.D. Cal. Apr. 16, 2008) (magistrate's
recommendation) ("[W]here the agency provides a response to the FOIA request rather
than substantively addressing a request for fee waiver, the exhaustion requirement may be
waived."), rev'd on other grounds, 404 F. App'x 233 (9th Cir. 2010); Wiggins v. Nat'l Credit
Union Admin., No. 05-2332, 2007 WL 259941, at *5 (D.D.C. Jan. 30, 2007) (finding that,
despite plaintiff's failure to exhaust, "no purpose would be served by having this matter
delayed until plaintiff pays the required fee" because agency "has already considered and
processed plaintiff's request"); Sliney v. BOP, No. 04-1812, 2005 WL 839540, at *4 (D.D.C.
Apr. 11, 2005) (recognizing that plaintiff's failure to pay requested fees "constitutes a failure
to exhaust," but excusing failure to pay duplication fee because agency "produced no
evidence" that it ever informed him of fee amount). Compare Antonelli v. ATF, 555 F. Supp.
2d 16, 23 (D.D.C. 2008) (finding that plaintiff's failure to pay owed fees prior to
commencing litigation entitles agency to summary judgment on claims arising from nonpayment of fees, notwithstanding plaintiff's alleged payment of fees "some three years" after
litigation began), with Hemmings v. Freeh, No. 95-738, 2005 WL 975626, at *3 (D.D.C. Apr.
25, 2005) (denying defendant's motion to dismiss, because plaintiff "cured" his failure to
exhaust by paying assessed fees, even though he did so only after government filed its
dismissal motion). But see Saldana v. BOP, 715 F. Supp. 2d 10, 22 (D.D.C. 2010) (finding
that because plaintiff did not agree to pay copying fees for certain records, agency could not
claim that he has failed to exhaust because plaintiff "is free to decline an offer to copy
records he does not want"); King v. DOJ, 772 F. Supp. 2d 14, 18 (D.D.C. 2010) (holding that
while plaintiff failed to exhaust administrative remedies with respect to agency's search for
failure to pay fees, merits of withholdings could still be adjudicated).
See, e.g., Trenerry v. IRS, No. 95-5150, 1996 WL 88459, at *1 (10th Cir. Mar. 1, 1996)
(agreeing with lower court that it had no subject matter jurisdiction where plaintiff failed to
exhaust administrative remedies by not paying fees owed on previous FOIA request);
Crooker, 577 F. Supp. at 1219-20 (finding that there was no subject matter jurisdiction
where plaintiff failed to pay fees in previous FOIA request).
128

See, e.g., Halpern v. FBI, 181 F.3d 279, 289 (2d Cir. 1999) (approving FBI practice of
seeking clarification of requester's possible interest in "cross-references," and dismissing
portion of suit challenging failure to process those records when plaintiff did not dispute
agency action until after suit was filed); Dettmann, 802 F.2d 1472, 1477 (D.C. Cir. 1986)
(same); Kenney v. DOJ, 700 F. Supp. 2d 111, 118 (D.D.C. 2010) (finding failure to exhaust
where requester argued for first time in litigation that he should not have to provide privacy
129

42

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(6) administratively request a waiver of fees; 130 or
(7) challenge a fee waiver denial at the administrative appeal stage. 131

waivers for individuals who already signed waivers for previous request but failed to present
this argument to FBI through administrative process); Lair v. Dep't of Treasury, No. 03-827,
2005 WL 645228, at *3 (D.D.C. Mar. 21, 2005) (determining that plaintiff exhausted his
administrative remedies as to certain aspects of agency's action on his request, but not as to
others), reconsideration denied, 2005 WL 1330722 (D.D.C. June 3, 2005). But see
Skybridge Spectrum Found. v. FCC, 842 F. Supp. 2d 65, 77 (D.D.C. 2012) (finding doctrine
of exhaustion did not bar judicial review where agency failed to inform requester of
exemption relied upon until its response to administrative appeal).
See, e.g., Ivey, 2006 WL 2051339, at *4 (finding failure to exhaust administrative
remedies, in part, because plaintiff failed to request fee waiver or reduction of fees);
Antonelli v. ATF, No. 04-1180, 2005 WL 3276222, at *8 (D.D.C. Aug. 16, 2005) (explaining
that "payment or waiver of assessed fees or an administrative appeal from the denial of a fee
waiver request is a condition precedent to failing a FOIA claim in the district court").
130

See, e.g., Voinche, 983 F.2d at 669 (holding "that claimants seeking a fee waiver under
FOIA must exhaust their administrative remedies prior to seeks judicial relief"); Anderson
v. U.S. Dep't of State, 661 F. Supp. 2d 6, 10 n.1 (D.D.C. 2009) (holding sua sponte that
plaintiff failed to exhaust administrative remedies for fee waiver issue); Jones v. DOJ, 653 F.
Supp. 2d 46, 50 (D.D.C. 2009) ("Any dispute regarding fees, the aggregation, or a fee waiver
must first be raised and pursued to exhaustion in the administrative process before it will be
entertained in a federal lawsuit."); Fulton v. EOUSA, No. 05-1300, 2006 WL 1663526, at *34 (D.D.C. June 15, 2006) (dismissing complaint because plaintiff did not pay fees or appeal
denial of his fee waiver request); Boyd v. DOJ, No. 04-1100, 2005 WL 555412, at *4 (D.D.C.
March 9, 2005) ("Failure to pay the requested fees or to appeal the denial from a refusal to
waive fees constitutes a failure to exhaust administrative remedies."); Oguaju v. EOUSA,
No. 00-1930, slip op. at 1 n.1 (D.D.C. Sept. 25, 2003) (refusing to consider plaintiff's
"motion to waive fees," because he failed to administratively appeal fee waiver denial),
summary affirmance granted, No. 04-5407, 2005 U.S. App. LEXIS 23891 (D.C. Cir. Nov. 3,
2005); Mells v. IRS, No. 99-2030, 2001 U.S. Dist. LEXIS 1262, at *5 (D.D.C. Jan. 23, 2001)
(deciding that plaintiff must pay fee or seek waiver from agency before challenging
government's response concerning fees), subsequent opinion denying fee waiver, 2002 U.S.
Dist. LEXIS 24275 (D.D.C. Nov. 21, 2002); Schwarz v. U.S. Dep't of Treasury, 131 F. Supp.
2d 142, 148 (D.D.C. 2000) ("Exhaustion of administrative remedies . . . includes payment of
required fees or an appeal within the agency from a decision refusing to waive fees."),
summary affirmance granted, No. 00-5453 (D.C. Cir. May 10, 2001); Tinsley v. Comm'r, No.
3:96-1769-P, 1998 WL 59481, at *4 (N.D. Tex. Feb. 9, 1998) (finding no exhaustion because
plaintiff failed to appeal fee waiver denial).
131

43

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Despite statutory language referring to administrative appeals of denials of requests for
expedited processing, 132 the few courts that have considered the issue thus far have ruled
that exhaustion of administrative remedies is not required prior to seeking court review
of an agency's denial of requested expedited access. 133
"Open America" Stays of Proceedings
When a requester who has constructively exhausted administrative remedies due
to an agency's failure to comply with the FOIA's time deadlines files a suit in court, the
court may retain jurisdiction over the case – ordinarily through issuance of a stay of
proceedings – while allowing the agency additional time to complete its processing of the
request. The FOIA itself explicitly permits such a stay if it can be shown that "exceptional
circumstances exist and that the agency is exercising due diligence in responding to the
request." 134 This provision of the FOIA provides an important "safety valve" for agencies
that are often overwhelmed by increasing numbers of FOIA requests. 135

See 5 U.S.C. § 552(a)(6)(E)(ii)(II) (referring to "expeditious consideration of
administrative appeals of such determinations of whether to provide expedited
processing").
132

See ACLU v. DOJ, 321 F. Supp. 2d 24, 28-29 (D.D.C. 2004) (concluding that FOIA does
not require administrative appeal of agency's denial of expedition request); Elec. Privacy
Info. Ctr. v. DOJ, No. 03-2078, slip op. at 5 (D.D.C. Dec. 19, 2003) (finding that
administrative appeal of refusal to grant expedited processing of request is required by
"neither the statute nor applicable case law"); Judicial Watch, Inc. v. FBI, No. 01-1216, slip
op. at 6 (D.D.C. July 26, 2002) (noting statutory language "provides for direct judicial
review of an agency's failure to timely respond to a request for expedited processing"); AlFayed v. CIA, No. 00-2092, 2000 U.S. Dist. LEXIS 21476, at *8 (D.D.C. Sept. 20, 2000)
(concluding that "[n]othing in the statute or its legislative history" indicates that
administrative appeal of denial of expedited processing is required before applicant may
seek judicial review), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); cf. NAACP
Legal Def. & Educ. Fund, Inc. v. HUD, No. 07-3378, 2007 WL 4233008, at *4 (S.D.N.Y.
Nov. 30, 2007) (finding that plaintiff constructively exhausted administrative remedies
when agency failed to respond to expedited processing request within ten days).
133

134

5 U.S.C. § 552(a)(6)(C)(i)-(iii) (2012 & Supp. V 2017).

See Manna v. DOJ, No. 93-81, 1994 WL 808070, at *10 (D.N.J. Apr. 13, 1994) (noting
"huge number of FOIA requests that have overwhelmed [agency's] human and related
resources"); Cohen v. FBI, 831 F. Supp. 850, 854 (S.D. Fla. 1993) (explaining that court
"cannot focus on theoretical goals alone, and completely ignore the reality that these
agencies cannot possibly respond to the overwhelming number of requests received within
the time constraints imposed by FOIA"); see also Natural Res. Def. Council v. DOE, 191 F.
Supp. 2d 41, 42 (D.D.C. 2002) (noting that "it is commonly accepted that no federal agency
can meet the impossibly rigorous timetable set forth in the [FOIA]," but nevertheless
granting motion for expedited release of records).
135

44

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The leading case construing this FOIA provision is Open America v. Watergate
Special Prosecution Force. 136 In Open America, the Court of Appeals for the District of
Columbia Circuit held that "exceptional circumstances" may exist when an agency can
show that it "is deluged with a volume of requests for information vastly in excess of that
anticipated by Congress [and] when the existing resources are inadequate to deal with the
volume of such requests within the time limits of subsection (6)(A)."137
The Electronic Freedom of Information Act Amendments of 1996 explicitly
redefined the term "exceptional circumstances" to exclude any "delay that results from a
predictable agency workload of requests . . . unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests." 138 Courts have found that this
definition of "exceptional circumstances" requires more than just the existence of a FOIA
backlog as the basis for a stay. 139 At the same time, in enacting the Electronic FOIA
amendments, Congress specifically contemplated that other factors may be relevant to a
court's determination as to whether "exceptional circumstances" exist: An agency's
efforts to reduce its pending request backlog; the size and complexity of other requests
being processed by the agency; the amount of classified material involved; and the
number of requests for records by courts or administrative tribunals that are also
pending. 140 Furthermore, the amendments include a companion provision that specifies
that a requester's "refusal . . . to reasonably modify the scope of a request or arrange for

136

547 F.2d 605 (D.C. Cir. 1976).

137

Id. at 616.

Electronic FOIA Amendments of 1996, Pub. L. No. 104-231, § 7(c), 110 Stat. 3048
(codified as amended at 5 U.S.C. § 552(a)(6)(C)(ii)).
138

See, e.g., Gov't Accountability Project v. HHS, 568 F. Supp. 2d 55, 60 (D.D.C. 2008)
(holding that "allowing a mere showing of a normal backlog of requests to constitute
'exceptional circumstances' would render the concept and its underlying Congressional
intent meaningless"); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d
246, 259 n.4 (D.D.C. 2005) ("An agency must show more than a great number of requests to
establish[] exceptional circumstances under the FOIA."); Donham v. DOE, 192 F. Supp. 2d
877, 882 (S.D. Ill. 2002) (refusing to accept agency's argument that its backlog qualifies as
"exceptional circumstances" because "then the 'exceptional circumstances' provision would
render meaningless the twenty-day response requirement"); Al-Fayed v. CIA, No. 00-2092,
slip op. at 5 (D.D.C. Jan. 16, 2001) ("Rather than overturn Open America, the 1996
amendments merely explain that predictable agency workload and a backlog alone, will not
justify a stay."), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); Eltayib v. U.S. Coast
Guard, No. 99-1033, slip op. at 3 (D.D.C. Nov. 11, 1999) (explaining intent of Electronic
FOIA amendments' modification of FOIA's "exceptional circumstances" provision), aff'd on
other grounds, 53 F. App'x 127 (D.C. Cir. 2002) (per curiam).
139

See H.R. Rep. No. 104-795, at 24-25, 1996 U.S.C.C.A.N. 3448, 3468 (1996) (specifying
factors that may be considered in determining whether "exceptional circumstances" exist).
140

45

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

an alternative time frame for processing . . . shall be considered as a factor in determining
whether exceptional circumstances exist." 141
In Open America, the D.C. Circuit ruled that the "due diligence" requirement in the
FOIA may be satisfied by an agency's good faith processing of all requests on a "firstin/first-out" basis and that a requester's right to have his request processed out of turn
requires a particularized showing of "exceptional need or urgency." 142 In so ruling, the
D.C. Circuit rejected the notion that the mere filing of a lawsuit was a basis for such
expedited treatment. 143 The Electronic FOIA amendments modified this first in/first out
rule by explicitly allowing agencies to establish "multitrack" processing for requests,

5 U.S.C. § 552(a)(6)(C)(iii); see also Sierra Club v. DOJ, 384 F. Supp. 2d 1, 31 (D.D.C.
2004) (finding that plaintiff's refusal to reasonably modify "extremely broad" request or to
arrange alternate time frame for disclosure constituted "unusual circumstances" and
relieved agency of statutory timeliness requirements); Peltier v. FBI, No. 02-4328, slip op.
at 8 (D. Minn. Aug. 15, 2003) (granting stay and explaining that plaintiff's refusal "to modify
the scope of his request supports a finding of exceptional circumstances"); Al-Fayed, No.
00-2092, slip op. at 6, 12 (D.D.C. Jan. 16, 2001) (granting stay and characterizing plaintiffs'
ostensible efforts to limit scope of their requests as "more symbolic than substantive"), aff'd
on other grounds, 254 F.3d 300 (D.C. Cir. 2001). But see Elec. Frontier Found., 517 F.
Supp. 2d 111, 118 (D.D.C. 2007) (finding plaintiff's refusal to narrow scope of request, in and
of itself, would not justify grant of stay because agency did not provide plaintiff with
sufficient information to make informed modification of request).
141

See Open Am., 547 F.2d at 616; Nat'l Sec. Archive v. SEC, 770 F. Supp. 2d 6, 6 (D.D.C.
2011) (granting twelve-month stay and finding agency exercised due diligence to reduce
backlog by adopting first-in-first-out processing system, "implement[ing] new technology to
streamline and expedite the processing of FOIA requests and [making] agency records
available on [agency's] public website"); see also Gov't Accountability Project, 568 F. Supp.
2d at 63-64 (denying stay and noting that although agency's efforts towards improving
FOIA request processing suggest generalized due diligence, agency's handling of plaintiff's
request "cannot be described as a model of due diligence").
142

Open Am., 547 F.2d at 615 ("We do not think that Congress intended, by fixing a time
limitation on agency action and according a right to bring suit when the applicant has not
been satisfied within the time limits, to grant an automatic preference by the mere action of
filing a case in United States district court."); see also Fiduccia v. DOJ, 185 F.3d 1035, 104041 (9th Cir. 1999) (refusing to approve automatic preference for FOIA requesters who file
suit, because it "would generate many pointless and burdensome lawsuits"); Cohen, 831 F.
Supp. at 854 ("[L]ittle progress would result from allowing FOIA requesters to move to the
head of the line by filing a lawsuit. This would do nothing to eliminate the FOIA backlog; it
would merely add to the judiciary's backlog."); cf. Hunsberger v. DOJ, No. 94-0168, 1994
U.S. Dist. LEXIS 6060, at *1-2 (D.D.C. May 3, 1994), summary affirmance granted, No. 945234 (D.C. Cir. Apr. 10, 1995) (prohibiting requester from circumventing Open America stay
by filing new complaint based on same request).
143

46

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

based on the amount of time and/or work involved in a particular request. 144 The
amendments specified that creation of multiple tracks "shall not be considered to affect
the requirement . . . to exercise due diligence." 145
When the requirements of the statute and Open America are met, courts have
granted agency motions to stay judicial proceedings to allow for additional time to
complete the administrative processing of a request. 146 By contrast, such motions have
Electronic FOIA Amendments of 1996, Pub. L. No. 104-231, § 7(a), 110 Stat. 3048
(codified at 5 U.S.C. § 552(a)(6)(D)(i)).
144

145

Id. § 7(a)(D)(ii) (codified at 5 U.S.C. § 552(a)(6)(D)(iii)).

See, e.g., Democracy Forward Found. v. DOJ, 354 F. Supp. 3d 55, 60-61 (D.D.C. 2018)
(granting stay and holding that "[defendant's] Declaration establishes that the uptick in
FOIA demands over the last two years is a significant departure from the rate of increase
seen over the prior decade" and also "describes what steps OIP has taken to address the
recent rise in such requests"); Eakin v. DOD, No. 16-00972, 2017 WL 3301733 (W.D. Tex.
Aug. 2, 2017) (granting stay after finding four conditions necessary to grant stay were
satisfied because of the sheer volume of plaintiff's request and defendant's execise of due
diligence); Elec. Frontier Found. v. DOJ, 563 F. Supp. 2d 188, 195 (D.D.C. 2008) (granting
stay because enormous workload, coupled with diminished workforce, demonstrates
exceptional circumstances, and agency "has [also] demonstrated both due diligence in
processing the FOIA requests submitted to it and is making reasonable progress in reducing
its backlog"); CareToLive v. FDA, No. 08-cv-005, 2008 WL 2201973, at *9 (S.D. Ohio May
22, 2008) (awarding stay because exceptional circumstances exist and agency is exercising
due diligence in processing FOIA requests); Ctr. for Pub. Integrity v. U.S. Dep't of State, No.
05-2313, 2006 WL 1073066, at *5 (D.D.C. Apr. 24, 2006) (finding exceptional
circumstances where agency experienced unpredictable "increase in the number of FOIA
requests for the two most recent fiscal years and also the unforeseen increase in . . . [its
FOIA staff's] other information access duties"); Elec. Privacy Info. Ctr. v. DOJ, No. 02-0063,
2005 U.S. Dist. LEXIS 18876, at *12-17 (D.D.C. Aug. 31, 2005) (approving stay where FBI
faced "unanticipated amount of lengthy FOIA requests," showed "reasonable progress" in
reducing its backlog, and demonstrated due diligence by adopting three-tiered processing
system, as well as certain electronic processing techniques); Bower v. FDA, No. 03-224,
2004 WL 2030277, at *3 (D. Me. Aug. 30, 2004) (granting stay where FDA faced "enormous
litigation demands" and demonstrated reasonable progress with its FOIA backlog);
Appleton v. FDA, 254 F. Supp. 2d 6, 10-11 (D.D.C. 2003) (approving an Open America stay
generally, but requiring parties to confer about precise scope of plaintiff's request and to
propose appropriate length of stay); Cooper v. FBI, No. 99-2305, slip op. at 2, 4 (D.D.C.
June 28, 2000) (granting defendant's stay motion for "at least" four months); Judicial
Watch, Inc. v. U.S. Dep't of State, No. 99-1130, slip op. at 2 (D.D.C. Feb. 17, 2000)
(approving ten-month stay because "unanticipated workload, the inadequate resources of
the agency, and the complexity of many of the requests" constitute exceptional
circumstances), appeal dismissed as interlocutory, No. 00-5095 (D.C. Cir. June 2, 2000);
Emerson v. CIA, No. 99-0274, 1999 U.S. Dist. LEXIS 19511, at *3-4 (D.D.C. Dec. 16, 1999)
(granting two-year stay because of "extraordinary circumstances" and multiple agency
efforts to alleviate FOIA backlog); Summers v. CIA, No. 98-1682, slip op. at 4 (D.D.C. July
146

47

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

proven unsuccessful when agencies have failed to set forth sufficient facts to demonstrate
the propriety of such a stay. 147 In some instances, courts have agreed that some additional
26, 1999) (finding that FBI's FOIA procedures are "fair and expeditious" and that
exceptional circumstances exist, warranting six-month stay of proceedings); Judicial Watch,
Inc. v. DOJ, No. 97-2869, slip op. at 6-8 (D.D.C. Aug. 25, 1998) (finding that agency
exercised due diligence when both parties agreed that exceptional circumstances existed
and requester failed to show exceptional need for records); Narducci v. FBI, No. 98-0130,
slip op. at 1 (D.D.C. July 17, 1998) (ordering thirty-four-month stay because of "deluge[]" of
requests coupled with "reasonable progress" in reducing backlog). But see Donham v. DOE,
192 F. Supp. 2d 877, 882 (S.D. Ill 2002) (finding the Open America standard "inconsistent
with the plan [sic] language of FOIA, especially in light of the 1996 Amendments").
See, e.g., Fiduccia, 185 F.3d at 1042 (overturning stay of proceedings granted by district
court because "slight upward creep in the caseload" does not constitute exceptional
circumstances); Elec. Privacy Info. Ctr. v. FBI, 933 F. Supp. 2d 42, 48-49 (D.D.C. 2013)
(finding that while "[t]he amount of classified material involved in [plaintiff's] request as
well as [plaintiff's] refusal to narrow its request" do support a stay, "considering the record
as a whole, exceptional circumstances do not exist" because "the FBI did not provide the
Court with sufficient information from which it could conclude that the overall complexity
of the FBI's workload has increased over time"); Buc v. FDA, 762 F. Supp. 2d 62, 70-72
(D.D.C. 2011) (denying stay, in part, because agency failed to establish that it made
reasonable progress in reducing its backlog and that its resources were inadequate to
address both volume and complexity of requests); Gov't Accountability Project, 568 F.
Supp. 2d at 60-61 (concluding that agency's "declining workload of FOIA cases does not, in
and of itself, establish the type of exceptional circumstances necessary to warrant a stay");
Elec. Frontier Found. v. DOJ, 517 F. Supp. 2d 111, 118 (D.D.C. 2007) (explaining that "the
fact that the FBI faces obligations in other litigations is not, in and of itself, sufficient to
establish exceptional circumstances"); Weinberg v. Von Eschenbach, No. 07-1819, 2007 WL
5681722, at *2 (D.N.J. Oct. 10, 2007) (denying stay because steady decrease in number of
FOIA requests received constitutes predictable agency workload); Bloomberg L.P. v. FDA,
500 F. Supp. 2d 371, 375-76 (S.D.N.Y. 2007) (determining that stay is unwarranted because
agency has merely shown manageable workload flow coupled with actions demonstrating
pattern "of unresponsiveness, delays, and indecision that suggest an absence of due
diligence"); Leadership Conference on Civil Rights, 404 F. Supp. at 259 (rejecting agency's
stay request predicated on "large backlog of pending FOIA requests, including 16 requests
which take much longer to process than other[s]," reallocation of resources to respond to
court orders, and "personnel issues"); The Wilderness Soc'y v. U.S. Dep't of the Interior, No.
04-0650, 2005 WL 3276256, at *10 (D.D.C. Sept. 12, 2005) (denying stay because agency
failed to present any evidence to support claim that it faced unanticipated volume of FOIA
requests); Los Alamos Study Group v. DOE, No. 99-201, slip op. at 4-5 (D.N.M. Oct. 26,
1999) (declining to approve stay of proceedings predicated on agency's need to review
sensitive materials, because such review "is part of the predictable agency workload of
requests"); Gilmore v. DOE, 4 F. Supp. 2d 912, 925 (N.D. Cal. 1998) ("Where a pattern and
practice of late responses is alleged, courts have held that a normal, predictable workload
cannot constitute 'exceptional circumstances,' at least without a showing that the agency
unsuccessfully sought more FOIA resources from Congress or attempted to redirect its
existing resources."), dismissed per stipulation, No. 95-0285 (N.D. Cal. Apr. 3, 2000); cf.
Hall v. CIA, No. 04-0814, 2005 WL 850379, at *5 (D.D.C. Apr. 13, 2005) (refusing to accept
147

48

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

processing time is appropriate, but have ordered stays for less time than requested by the
agency. 148
While the Open America decision itself does not address the additional time
needed by an agency to justify nondisclosure of any withheld records once they are
processed, courts have, as a practical matter, tended to merge the record-processing and
declaration-preparation stages of a case when issuing stays of proceedings under Open
America. 149 And when there is a large volume of responsive documents that have not been
processed, a court may grant a stay of proceedings that provides for interim or "timed"
releases and/or interim status reports on agency processing efforts. 150
CIA's argument that stay was warranted while agency awaited "final guidance from the
Court" on plaintiff's previous lawsuit); Homick v. DOJ, No. 98-00557, slip op. at 2 (N.D.
Cal. Oct. 27, 2004) (denying FBI's motion for stay because it "repeatedly failed to meet
various [court imposed] deadlines . . . over more than two years"). But cf. Nat'l Sec. Archive
v. U.S. Dep't of the Air Force, No. 05-571, 2006 WL 1030152, at *5 (D.D.C. Apr. 19, 2006)
(finding that agency failed to process plaintiff's requests with due diligence, but declining to
order immediate disclosure of unprocessed documents because they first had to be reviewed
for declassification and declaring that "[r]elease of classified documents cannot be ordered
without such review no matter how dilatory an agency might be").
See Elec. Frontier Found., 563 F. Supp. 2d at 196 (granting stay until August 1, 2008,
instead of February 2013); Hendricks v. DOJ, No. 05-05-H, slip op. at 13 (D. Mont. Aug. 18,
2005) (concluding that FBI did not demonstrate exceptional circumstances sufficient to
warrant stay for full length of time requested); Bower, 2004 WL 2030277, at *3 (approving
seven-month stay, rather than leaving FDA "to its own, unmonitored devices" for full twoand-one-half-year period that it had requested); Ruiz v. DOJ, No. 00-0105, slip op. at 3
(D.D.C. Sept. 27, 2001) (acknowledging that agency made "a satisfactory showing that a stay
. . . is warranted," but reducing the stay's length from requested thirty-three months to only
seven months); Beneville v. DOJ, No. 98-6137, slip op. at 8 (D. Or. Dec. 17, 1998) (declining
to approve full stay of proceedings requested by FBI regarding Unabomber files); Grecco v.
DOJ, No. 97-0419, slip op. at 2 (D.D.C. Aug. 24, 1998) (granting two-year stay rather than
four-year stay that was requested by FBI); see also Peralta v. FBI, No. 94-760, slip op. at 2
(D.D.C. June 6, 1997) (reducing Open America stay by four months because of enactment of
Electronic FOIA amendments, and requiring that agency justify additional time needed for
processing on basis of new statutory standard), vacated & remanded on other grounds, 136
F.3d 169 (D.C. Cir. 1998); cf. Donham, 192 F. Supp. 2d at 884 (refusing to set processing
deadline, but also refusing to grant open-ended stay of proceedings).
148

See, e.g., Lisee v. CIA, 741 F. Supp. 988, 989-90 (D.D.C. 1990) ("Open America" stay
granted for both processing records and preparing Vaughn Index); Ettlinger v. FBI, 596 F.
Supp. 867, 878-79 (D. Mass. 1984) (same); Shaw v. Dep't of State, 1 Gov't Disclosure Serv.
(P-H) ¶ 80,250, at 80,630 (D.D.C. July 31, 1980) (same).
149

See, e.g., Elec. Frontier Found., 517 F. Supp. 2d at 121 (awarding stay but ordering agency
to provide plaintiff with interim releases and to file status reports with Court every ninety
days); Al-Fayed v. CIA, No. 00-2092, slip op. at 12 (D.D.C. Jan. 16, 2001) (granting stays for
four agencies, but requiring status reports every sixty days), aff'd on other grounds, 254
150

49

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

An "Open America" stay may be denied when the requester can show an
"exceptional need or urgency" for having his request processed out of turn.151 Such a
showing has been found if the requester's life or personal safety, or substantial due
process rights, would be jeopardized by the failure to process a request immediately. 152
(For further discussion of expedited processing, see Procedural Requirements, Expedited
Processing, above.)
Adequacy of Search
In many FOIA suits, the defendant agency will face challenges not only to its
reliance on particular exemptions, but also to the nature and extent of its search for

F.3d 300 (D.C. Cir. 2001); Raulerson v. Reno, No. 95-2053, slip op. at 1 (D.D.C. Sept. 11,
1998) (approving thirty-month stay to process over 19,000 pages, but ordering four interim
status reports); Samuel Gruber Educ. Project v. DOJ, No. 90-1912, slip op at 6 (D.D.C. Feb.
8, 1991) (granting nearly two-year stay, but requiring six-month progress reports); cf.
Bower, 2004 WL 2030277, at *3 (requiring FDA to produce status report at end of sevenmonth stay, which included estimated time by which document production would be
completed).
See Open Am., 547 F.2d at 616 (suggesting that stay of proceedings which would allow for
processing on first-in, first-out basis could be denied where "exceptional need or urgency is
shown" for requested records); see also Edmonds v. FBI, No. 02-1294, 2002 WL 32539613,
at *4 (D.D.C. Dec. 3, 2002) (denying motion for Open America stay even though it was
justified by exceptional circumstances, and ordering expedited processing); Aguilera v. FBI,
941 F. Supp. 144, 149-52 (D.D.C. 1996) (finding initially that FBI satisfied "exceptional
circumstances-due diligence test" warranting eighty-seven-month delay, but subsequently
granting expedited access due to exigent circumstances), appeal dismissed, No. 98-5035
(D.C. Cir. Mar. 18, 1998).
151

See, e.g., Ferguson v. FBI, 722 F. Supp. 1137, 1143 (S.D.N.Y. 1989) (denying stay, even
though agency "nominally" satisfies "due diligence-exceptional circumstances" test set
forward in Open America, because "plaintiff's liberty interests require expedition"); cf.
Gilmore v. FBI, No. 93-2117, slip op. at 1, 3 (N.D. Cal. July 26, 1994) (expediting request
despite showing of due diligence and exceptional circumstances, based upon finding that
"[p]laintiff has sufficiently shown that the information he seeks will become less valuable if
the FBI processes his request on a first-in, first-out basis"). Compare Freeman v. DOJ, No.
92-557, slip op. at 6 (D.D.C. Oct. 2, 1992) (vacating order granting stay and granting
expedited processing when scope of request was limited, when Jencks Act material was
unavailable in state prosecution, and when information useful to plaintiff's criminal defense
might have been contained in requested documents), with Freeman v. DOJ, No. 92-557,
1993 WL 260694, at *5 (D.D.C. June 28, 1993) (denying further expedited treatment when
processing "would require a hand search of approximately 50,000 pages, taking
approximately 120 days").
152

50

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

responsive documents. Sometimes, that is all that a plaintiff will dispute. 153 (For
discussions of administrative considerations in conducting searches, see Procedural
Requirements, Searching for Responsive Records, above.) To prevail in a FOIA action
where the adequacy of the search is at issue, the agency must show that it made "'a goodfaith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.'" 154 The fundamental
question is not "'whether there might exist any other documents possibly responsive to
the request, but rather whether the search for those documents was adequate.'" 155 In
See, e.g., Iturralde v. Comptroller of Currency, 315 F.3d 311, 313 (D.C. Cir. 2003)
(explaining that adequacy of agency's search is at issue); Perry v. Block, 684 F.2d 121, 126
(D.C. Cir. 1982) (noting that plaintiff contested only adequacy of search); People for the
Ethical Treatment of Animals v. BIA, 800 F. Supp. 2d 173, 177 (D.D.C. 2011) ("The only
issue on appeal is the adequacy of defendant's search, since plaintiff does not contest the
exemptions invoked by defendant.").
153

Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting
Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see, e.g., Stalcup v.
CIA, 768 F.3d 65, 74 (1st Cir. 2014) (noting that resolution of search claim "turns on
whether the agency made a good faith, reasonable effort 'using methods which can be
reasonably expected to produce the information requested'" (quoting Oglesby, 920 F.2d at
68)); Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) ("'[t]he court applies a
'reasonableness' test to determine the 'adequacy' of a search methodology, consistent with
congressional intent tilting the scale in favor of disclosure'" (quoting Campbell v. DOJ, 164
F.3d 20, 27 (D.C. Cir. 1998))); Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (noting
that "crucial" search issue is whether agency's search was "'reasonably calculated to discover
the requested documents'" (quoting SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
1991))); Gerstein v. CIA, No. 06-4643, 2008 WL 4415080, at *3 (N.D. Cal. Sept. 26, 2008)
("'The adequacy of the agency's search is judged by a standard of reasonableness, construing
the facts in the light most favorable to the requestor.'" (quoting Citizens Comm'n on Human
Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995))).
154

Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. DOJ, 745 F.2d
1476, 1485 (D.C. Cir. 1984)); see Citizens Comm'n on Human Rights, 45 F.3d at 1328
(same); Nation Magazine, 71 F.3d at 892 n.7 (explaining that "there is no requirement that
an agency [locate] all responsive documents"); Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th
Cir. 1994) ("In judging the adequacy of an agency search for documents the relevant
question is not whether every single potentially responsive document has been
unearthed."); In re Wade, 969 F.2d 241, 249 n.11 (7th Cir. 1992) (declaring that issue is not
whether other documents might exist, but whether search was adequate); Edelman v. SEC,
239 F. Supp. 3d 45, 51 (D.D.C. 2017) (holding that "the mere fact [plaintiff] has located
complainants who assert that they made complaints that do not appear in the SEC's
production does not, on its own, cast doubt on the efficacy of the SEC's search."); Vest v.
Dep't of the Air Force, 793 F. Supp. 2d 103, 120 (D.D.C. 2011) (finding that "the FOIA does
not mandate a 'perfect' search, only an 'adequate' one"); Sephton v. FBI, 365 F. Supp. 2d 91,
101 (D. Mass. 2005) (explaining that FOIA does not require review of "every single file that
might conceivably contain responsive information"), aff'd, 442 F.3d 27 (1st Cir. 2006). But
cf. Immigrant Def. Project v. ICE, No. 14-6117, 2017 WL 2126839 at *2 (S.D.N.Y. May 16,
155

51

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

other words, "the focus of the adequacy inquiry is not on the results." 156 In some
situations, such as when an agency neither confirms nor denies the existence of records,
or the records are categorically exempt, 157 the Court of Appeals for the District of
Columbia Circuit has held that no search is required. 158
2017) ("Plaintiffs point to 'tangible evidence' of outstanding materials at the field offices in
question, indicating that Defendants' earlier search of these offices was not complete.").
Hornbostel v. U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003), aff'd, No.
03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004); see Mobley v. CIA, 806 F.3d 568, 581
(D.C. Cir. 2015) (finding agency search is "not unreasonable simply because it fails to
produce all relevant material" (quoting Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir.
1986))); Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) ("'[T]he factual
question . . . is whether the search was reasonably calculated to discover the requested
documents, not whether it actually uncovered every document extant.'" (quoting SafeCard
Servs., 926 F.2d at 1201)); In re Wade, 969 F.2d at 249 n.11 (declaring that issue is not
whether other documents may exist, but whether search was adequate); Amnesty Int'l USA
v. CIA, 728 F. Supp. 2d. 479, 498 (S.D.N.Y. 2010) (noting that discovery of two additional
responsive documents "in an area that the CIA determined would probably not lead to
uncovering responsive documents does not render the CIA's search inadequate"); Blanck v.
FBI, No. 07-0276, 2009 WL 728456, at *7 (E.D. Wis. Mar. 17, 2009) ("[T]he fact that the
defendant's search failed to turn up the document(s) does not render the search inadequate;
the adequacy of the search is determined by the appropriateness of the method."); People
for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284, 294 (D.D.C. 2007)
(explaining that although agency uncovered 5000 responsive records, adequacy of search
judged by "appropriateness of the methods used to carry out search" rather than by "fruits
of the search" (quoting Iturralde, 315 F.3d at 315)); Judicial Watch v. Rossotti, 285 F. Supp.
2d 17, 26 (D.D.C. 2003) ("Perfection is not the standard by which the reasonableness of a
FOIA search is measured."); Garcia v. DOJ, 181 F. Supp. 2d 356, 368 (S.D.N.Y. 2002) ("The
agency is not expected to take extraordinary measures to find the requested records.");
Citizens Against UFO Secrecy, Inc. v. DOD, No. 99-00108, slip op. at 8 (D. Ariz. Mar. 30,
2000) (declaring that "[a] fruitless search result is immaterial if [d]efendant can establish
that it conducted a search reasonably calculated to uncover all relevant documents"), aff'd,
21 F. App'x 774 (9th Cir. 2001). But see Raulerson v. Reno, No. 96-120, slip op. at 5 (D.D.C.
Feb. 26, 1999) (suggesting that agency's failure to locate complaints filed by plaintiff,
existence of which agency did not dispute, "casts substantial doubt" on adequacy of agency's
search), summary affirmance granted, No. 99-5300 (D.C. Cir. Nov. 23, 1999).
156

See Boyd v. EOUSA, No. 16-5133, 2016 U.S. App. LEXIS 17066, at *2 (D.C. Cir. 2016) ("It
was not necessary for EOUSA to conduct a search for records pertaining to third parties
because these records were categorically exempt pursuant to FOIA Exemption 7(C)").
157

See Elec. Priv. Info. Ctr. v. NSA, 678 F. 3d 926, 933 (D.C. Cir. 2012) (finding no agency
obligation under FOIA to even conduct search if agency properly asserted Glomar
response); see also Moore v. Nat'l DNA Index Sys., 662 F. Supp. 2d 136, 139 (D.D.C. 2009)
(finding that where search for records is "literally impossible for the [agency] to conduct not searching satisfies the FOIA requirement of conducting a search that is reasonably
calculated to uncover responsive documents").
158

52

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The adequacy of any FOIA search is necessarily "dependent upon the
circumstances of the case." 159 For example, when a requester has limited the scope of his
request, either at the administrative stage or in the course of litigation, he cannot
subsequently challenge the adequacy of the search on the ground that the agency limited
its search accordingly. 160 However, courts have held that a search is not reasonable if the
agency itself interprets the scope of the request too narrowly.161
Davis v. DOJ, 460 F.3d 92, 103 (D.C. Cir. 2006) ("The 'adequacy of an agency's search is
measured by a standard of reasonableness, and is dependent upon the circumstances of the
case.'" (quoting Schrecker v. DOJ, 349 F.3d 657, 663 (D.C. Cir. 2003))); accord Truitt v.
Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (same); Rugiero v. DOJ, 257 F.3d 534, 547
(6th Cir. 2001) ("The FOIA requires a reasonable search tailored to the nature of the
request."); Maynard, 986 F.2d at 559 (explaining that adequacy of search "depends upon
the facts of each case"); People for the Am. Way Found., 503 F. Supp. 2d at 293 ("Because
the adequacy of an agency's search is 'dependent upon the circumstances of the case,' . . . ,
there is no uniform standard for sufficiently detailed and nonconclusory affidavits."); see
also Gavin v. SEC, No. 04-4522, 2005 WL 2739293, at *7 (D. Minn. Oct. 24, 2005) (finding
agency's search sufficient "in light of the facts of this case"), reconsideration denied, 2006
WL 208783 (D. Minn. Jan. 26, 2006).
159

See McClanahan v. DOJ, 712 F. App'x 6, 8 (D.C. Cir. 2018) (finding agency's narrow
search for investigative files adequate and stating that, contrary to requester's aguments in
litigation, "the opening paragraph and the subjects of . . ." original request limited records
sought to investigative records) (unpublished disposition); Ramstack v. Dep't of Navy, 607
F. Supp. 2d 94, 108 (D.D.C. 2009) (holding that defendants properly confined searches to
central databases and plaintiff's argument that records in Baltimore or Philadelphia be
searched was irrelevant because "plaintiff failed to direct the defendants to these particular
sources of information in his FOIA requests"); Truesdale v. DOJ, 803 F. Supp. 2d 44, 49
(D.D.C. 2011) ("In light of plaintiff's clarification of his request – that is, his insistence that
records he seeks were or should have been maintained by the Attorney General –
defendant's decision to limit its search to the official records repository for the Office of the
Attorney General was reasonable"); Jarvik v. CIA, 741 F. Supp. 2d 106, 117 (D.D.C. 2010)
(finding CIA's search adequate when requester agreed to CIA's offer to narrow scope of
initial request and CIA limited its search to that narrowed scope); Lechliter v. DOD, 371 F.
Supp. 2d 589, 595 (D. Del. 2005) ("A requestor may not challenge the adequacy of a search
after an agency limits the scope of a search in response to direction from the requestor."),
aff'd, 182 F. App'x 113 (3rd Cir. 2006).
160

See Pub. Emps. for Envtl. Resp. v. U.S. Int'l Boundary & Water Comm'n, 842 F. Supp. 2d
219, 225 (D.D.C. 2012) (determining that agency did not meet search obligation when it
narrowly interpreted request "as a call for the agency's opinion on a question and to produce
some records supporting that unsolicited opinion"); Charles v. Office of Armed Forces Med.
Exam'r, 730 F. Supp. 2d 205, 216 (D.D.C. 2010) ("[T]o allow an agency to restrict the
number of documents that it deems responsive during a FOIA search based on its
interpretation of the plaintiff's purpose in making the request constitutes an unreasonable
limitation.").
161

53

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Courts have addressed what constitutes a reasonable lead that agencies should
follow when conducting their searches. 162 At the same time. the D.C. Circuit has held
that when the subject of a request is involved in several separate matters, but the request
seeks information regarding only one of them, an agency is not obligated to extend its
search to other files or to other documents that are referenced in records retrieved in
response to the initial search, so long as that initial search was reasonable and complete
in and of itself. 163 Additionally, the D.C. Circuit has held that the reasonableness standard
"would be undermined" if "a requester [were] allowed to dictate, through search
instructions, the scope of an agency's search[.]" 164
See, e.g., Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 407 (D.C. Cir.
2017) (holding that while rare case, lead located in records must be pursued "where a record
reveals an agency office directly and conspicuously weigh[ed] in on a pointedly relevant,
highly public controversy to which a FOIA request expressly refers."); Mobley v. CIA, 806
F.3d 568, 583 (D.C. Cir. 2015) (finding that "a request for an agency to search a particular
record system - without more - does not invariably constitute a 'lead' that an agency must
pursue"); Kowalczyk v. DOJ, 73 F.3d 386, 389 (D.C. Cir. 1996) (despite finding that agency
did not need to follow particular lead at issue, noting that "[t]his is not to say that the
agency may ignore what it cannot help but know"); Pinson v. DOJ, 61 F. Supp. 3d 164, 179
(D.D.C. 2015) (determining that although some disclosed records reference other
documents not disclosed, that "standing alone, does not foreclose a grant of summary
judgment to the government).
162

Morley, 508 F.3d at 1121 ("'[M]ere reference to other files does not establish the existence
of documents that are relevant to [a] FOIA request. If that were the case, an agency
responding to FOIA requests might be forced to examine virtually every document in its
files, following an interminable trail of cross-referenced documents like a chain letter
winding its way through the mail.'" (quoting Steinberg, 23 F.3d at 552); see also Albers v.
FBI, No. 16-05249, 2017 WL 736042, at *4 (W.D. Wash. Feb. 24, 2017) (finding crossreference search not required where requester sought all records "pertaining to" subject
because "it is not unreasonable to interprete 'pertaining to' in such a way as to search only
for the primary subject of a particular matter."); Lewis v. DOJ, 867 F. Supp. 2d 1, 13 (D.D.C.
2011) (finding no agency obligation "to locate or retrieve files from another federal
government agency [or] to retriev[e] documents which have been filed in [a] sealed case");
Canning v. DOJ, 848 F. Supp. 1037, 1050 (D.D.C. 1994) (holding that adequacy of search
not undermined by fact that requester has received additional documents mentioning
subject through separate request, when such documents are "tagged" to name of subject's
associate).
163

Mobley, 806 F.3d at 581; see also Dibacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir.
2015) (finding that "[defendant's] burden was to show that its search efforts were
reasonable and logically organized to uncover relevant documents; it need not knock down
every search design advanced by every requester" (citing SafeCard, 926 F.2d at 1201);
McClanahan v. DOJ, 204 F. Supp. 3d 30, 44 (D.D.C. 2016) (determining that "the
reasonableness of a search is not measured against the scope dictated by a requester's
search instructions, particularly when those instruction do not provide 'clear and certain'
leads" (citing Mobley, 806 F.3d at 582)), aff'd, 712 F. App'x 6 (D.C. Cir. 2018); Media
164

54

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

To prove the adequacy of its search, as in sustaining its use of exemptions, an
agency relies upon its declarations, which should be "relatively detailed and
nonconclusory and submitted in good faith." 165 However, a search declaration "need not
set forth with meticulous documentation the details of an epic search for the requested
records," 166 but such declarations should show "that the search method was reasonably
calculated to uncover all relevant documents." 167 This is ordinarily accomplished by a
Research Ctr. v. DOJ, 818 F. Supp. 2d 131,at 140 (D.D.C. 2011) (noting that there is "no
bright-line rule requiring agencies to use the search terms proposed in a FOIA request").
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (citing Goland v.
CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)); accord Pollack v. BOP, 879 F.2d 406, 409 (8th Cir.
1989); see Freedom Watch, Inc. v. NSA, 783 F.3d 1340, 1345 (D.C. Cir. 2015) (noting that
"'an agency may establish the adequacy of its search by submitting reasonably detailed,
nonconclusory affidavits describing its efforts'" (quoting Baker & Hostetler LLP v. Dep't of
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006))); Havemann v. Colvin, 629 F. App'x 537,
539 (4th Cir. 2015) (same); Perry, 684 F.2d at 127 ("[A]ffidavits that explain in reasonable
detail the scope and method of the search conducted by the agency will suffice to
demonstrate compliance with the obligations imposed by the FOIA."); Triestman v. DOJ,
878 F. Supp. 667, 672 (S.D.N.Y. 1995) ("[A]ffidavits attesting to the thoroughness of an
agency search of its records and its results are presumptively valid.").
165

Murray v. BOP, 741 F. Supp. 2d 156, 163 (D.D.C. 2010) ("While the affidavits or
declarations submitted by the agency need not set forth with meticulous documentation the
details of an epic search for the requested records, they must describe what records were
searched, by whom, and through what processes, and must show that the search was
reasonably calculated to uncover all relevant documents." (quoting Defenders of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009))); see also Gatson v. FBI, No. 155068, 2017 WL 3783696, at *6 (D.N.J. Aug. 31, 2017) (noting that "the relevant inquiry is
not whether the Government conducted the most expansive search possible or a perfect
search" but rather whether search was "reasonably calculated" to uncover responsive
records).
166

Oglesby, 920 F.2d at 68 (declaring that although agency was not required to search
"every" record system, "[a]t the very least, [it] was required to explain in its affidavit that no
other record system was likely to produce responsive documents"); see, e.g., Hamdan v.
DOJ, 797 F.3d 759, 772 (9th Cir. 2015) ("Plaintiffs were entitled to a reasonable search for
records, not a perfect one[,]" "[a]nd a reasonable search is what they got"); Wadhwa v. VA,
446 F. App'x 516, 520 (3rd Cir. 2011) (remanding on search where neither declaration
submitted by agency discussed search methodology used) (unpublished table decision);
Church of Scientology v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986) (ruling that agency affidavit
should describe general structure of agency's file system, which makes further search
difficult); Edelman, 239 F. Supp. 3d at 51 (stating that for search to be adequate agency "is
not required to 'search every record system' in response to a FOIA request; it is only
obligated to 'us[e] methods which can be reasonably expected to produce the information
requested.'" (quoting Oglesby, 920 F.2d at 68)); Ferranti v. ATF, 177 F. Supp. 2d 41, 47
(D.D.C. 2001) ("Affidavits that include search methods, locations of specific files searched,
167

55

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

declaration that identifies the types of files that an agency maintains, states the search
terms that were employed to search through the files selected for the search, and contains
an averment that all files reasonably expected to contain the requested records were, in

descriptions of searches of all files likely to contain responsive documents, and names of
agency personnel conducting the search are considered presumptively sufficient."),
summary affirmance granted, No. 01-5451, 2002 WL 31189766, at *1 (D.C. Cir. Oct. 2,
2002); see also Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (reversing grant
of summary judgment because "nothing in the record certif[ies] that all the records . . . have
been produced"); Steinberg, 23 F.3d at 552 (finding description of search inadequate when
it failed "to describe in any detail what records were searched, by whom, and through what
process"); Bryant v. CIA, 742 F. Supp. 2d 90, 94-95 (D.D.C. 2010) (finding CIA's declaration
sufficient when it described records maintained, general FOIA request processes, steps
taken to respond to plaintiff's request, and search terms used); Budik v. Dep't of Army, 742
F. Supp. 2d 20, 31 (D.D.C. 2010) (recognizing agency's declaration "go[es] beyond simply
averring that all files likely to include responsive documents were searched"); Judicial
Watch v. FDA, 407 F. Supp. 2d 70, 74 (D.D.C. 2005) (finding that agency declarations
sufficiently described search by detailing "scope and method used" to search for records and
by providing "details about the specific offices" searched), aff'd in pertinent part, rev'd in
other part & remanded on other grounds, 449 F.3d 141 (D.C. Cir. 2006); Tarullo v. DOD,
170 F. Supp. 2d 271, 274 (D. Conn. 2001) (deciding that absence in agency's declaration of
description of scope and nature of search "makes it impossible" to find that search was
reasonable).
56

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

fact, searched. 168 By contrast, agency declarations have been found inadequate when they
do not contain sufficiently detailed descriptions of the search. 169
See, e.g., Mobley, 806 F.3d at 581 (noting courts may rely on affidavits that are
reasonably detailed and aver "'that all files likely to contain responsive records (if such
records exist) were searched'" (quoting Oglesby, 920 F.2d at 68)); Iturralde, 315 F.3d at 31314 (explaining requirements for adequate search); Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 326 (D.C. Cir. 1999) (same); Bonfilio v. OSHA, 320 F. Supp. 3d 152, 156 (D.D.C.
2018) (finding search description adequate although agency did not specifically state "that it
looked for tapes, photos, videos, hard drives, thumb drives, emails, and notebooks . . ."
because "FOIA does not require this level of specificity"); Judicial Watch v. DOJ, 319 F.
Supp. 3d 431, 439-40 (D.D.C. 2018) (finding agency declarations "provide[d] sufficient
detail about the scope and method [of] the [agency's] search for responsive records, the type
of searches performed, who performed the searches, and what search terms were used.");
Schotz v. DOJ, No. 14-1212, 2016 WL 1588491, at *6 (D.D.C. Apr. 20, 2016) (finding
agency's "declarant has satisfactorily described the files that were searched, the search
methods employed and explained why those files were the only ones likely to contain
responsive records."); Bartko v. DOJ, 164 F. Supp. 3d 55, 64 (D.D.C. 2016) (finding that
"[defendant] has . . . fully described that methodology in two affidavits and, most
importantly, has incanted the 'magic words' concerning the adequacy of the search –
namely, the assertion that [it] searched all locations likely to contain responsive
documents"); Our Children's Earth Found. v. Nat. Marine Fisheries Serv., No. 14-4365, 2015
WL 6331268, at *2 (N.D. Cal. Oct. 21, 2015) (finding declaration adequate where it provide
precise search terms used, explained "in detail how [the agency] determined which folders,
files, and emails were selected"); Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp.
2d 859, 869-72 (E.D. Va. Jan. 23, 2012) (determining search reasonable where agency's
declaration describes in detail procedures used, divisions searched, and results of those
efforts), aff'd, 703 F.3 724 (4th Cir. 2013); Moffat v. DOJ, No. 09-12067, 2011 WL 3475440,
at *7-11 (D. Mass. Aug. 5, 2011) (same), aff'd, 716 F.3d 244 (1st Cir. 2013); Kubik v. BOP, No.
10-6078, 2011 WL 4372188, at *2 (D. Or. Sept. 19, 2011) (finding search adequate where
declaration "described the search methods employed – including the electronic search
terms used, the location of the files searched and the method in which the searched files
were created"); Dolin, Thomas & Solomon LLP v. DOL, 719 F. Supp. 2d 245, 255 (W.D.N.Y.
2010) (determining search adequate where "DOL has attested to multiple thorough searches
for responsive documents, describing in detail the scope of the search, and listing files and
persons from whom information was sought"), modified on other grounds by, Dolin,
Thomas & Solomon LLP v. DOL, 2010 WL 5342821 (W.D.N.Y. Nov. 5, 2010); Schwarz v.
DOJ, No. 10-0562, 2010 WL 2836322, at *4 (E.D.N.Y. July 14, 2010) (concluding agency
search adequate where "[t]he affidavit of each agency demonstrates a thorough, careful
search in every place where documents responsive to plaintiff's request might have been
located"), aff'd, 417 F. App'x 102 (2d Cir. 2011); Rodriguez v. McLeod, No. 08-0184, 2008
WL 5330802, at *5 (E.D. Cal. Dec. 18, 2008) (determining that agency's declaration was
sufficiently detailed because it described "locations searched, and manner and procedure for
selecting and searching files"); Schmidt v. DOD, No. 3:04-1159, 2007 WL 196667, at *2 (D.
Conn. Jan. 23, 2007) (finding that agency conducted adequate search based on agency's
affidavits which detailed "the timeliness of the search, the manner in which the search was
conducted, the specific places that were searched, and the retrieval of the relevant
documents"); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 66 (D.D.C. 2003)
(finding search affidavit to be sufficient because it "identifi[ed] the affiants and their roles in
168

57

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

the agency, discuss[ed] how the FOIA request was disseminated with their office and the
scope of the search, which particular files were searched, and the chronology of the search");
see also Harrison v. BOP, 611 F. Supp. 2d 54, 65 (D.D.C. 2009) (holding as frivolous
plaintiff's claim that BOP's searches were inadequate because it did "not identify, by
individual name, who was conducting the search"); cf. James Maddison Project v. DOJ, 267
F. Supp. 3d 154, 161 (D.D.C. 2017) ("Although a reasonable search of electronic records may
necessitate the use of search terms in some cases, FOIA does not demand it in all cases
involving electronic records.").
See, e.g., Reporters Comm. for Freedom of the Press, 877 F.3d at 404 (remanding case
because agency declaration was "utterly silient" on which record systems were searched,
how searches were conducted, or what search terms were used); Aguiar v. DEA, 865 F.3d
730, 736 (D.C. Cir. 2017) (remanding because "declaration appears to conclude as a matter
of law that the software is not in the agency's 'possession or control,' rather than to explain
as a matter of fact that the software was not found"); Morley, 508 F.3d at 1121-22
(remanding case because agency's declaration did not sufficiently describe scope and
method of search conducted); Pulliam v. EPA, 292 F. Supp. 3d 255, 262 (D.D.C. 2018)
(finding declaration inadequate because it did not provide rationale for searching certain
locations and not others); Crt. for Biological Diversity v. EPA, 279 F. Supp. 3d 121, 140-44
(D.D.C. 2017) (finding decleration insufficient because it did not justify agency's search cutoff dates, not all relevant custodians were searched, nor did agency search "instant
messages, text messages, or other electronic communications."); Mattachine Soc'y of
Washington, D.C. v. DOJ, 267 F. Supp. 3d 218, 226 (D.D.C. 2017) (holding that "[t]he
locations searched and search techniques employed" were sufficient but agency's complete
failure to search for specific subject and limited search terms used renedered search
inadequate); Shapiro v. DOJ, 214 F. Supp. 3d 73, 78 (D.D.C. 2016) (explaining that search
cannot be found adequate because "at no point in [its] declarations does [defendant] ever
'aver[] that all files likely to contain responsive materials (if such records exist) were
searched.'"); Navigators Ins. Co. v. DOJ, 155 F. Supp. 3d 157, 170 (D. Conn. 2016) (finding
agency's declaration insufficient beacause it did not discuss whether paper or electronic files
were searched, which databases were searched, who conducted the search, or what search
terms were used); Pinson v. DOJ, 145 F. Supp. 3d 1, 12-13 (D.D.C. 2015) (finding agency's
declaration insufficient because it was "so general that it could describe virtually any search
undertaken in response to a FOIA request"); Nat'l Day Laborer Organizing Network v. U.S.
Immigr. & Customs Enforcement Agency, 877 F. Supp. 2d 87, 106 (S.D.N.Y. 2012) ("It is
impossible to evaluate the adequacy of an electronic search for records without knowing
what search terms have been used."); Banks v. DOJ, 700 F. Supp. 2d 9, 15 (D.D.C. 2010)
(finding that because agency "does not explain sufficiently its interpretations of plaintiff's
FOIA requests[]" it has not "demonstrate[d] that it has searched the files or systems of
records most likely to contain records responsive to plaintiff's FOIA requests"); Davis v.
DOD, No. 07-492, 2010 WL 1837925, at *5 (W.D.N.C. May 6, 2010) (finding agency
declaration insufficient when it failed to "make clear whether the particular locations
searched [were] the only places where responsive information is likely to be located");
Murray v. BOP, 741 F. Supp. 2d 156, 163 (D.D.C. 2010) (determining BOP's affidavit
inadequate for failing "to establish that the systems of records actually searched were those
most likely to contain records responsive to plaintiff's FOIA request" and for failing to
describe "'with particularity the files that were searched [or] the manner in which they were
searched'" (quoting Steinberg, 23 F.3d at 552)); Rodriguez v. McLeod, No. 08-0184, 2008
169

58

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

It is not necessary that the agency employee who actually performed the search
supply an affidavit describing the search; rather, the affidavit of an official responsible for
supervising or coordinating the search efforts has been found to satisfy the "personal
knowledge" requirement of Rule 56(e) of the Federal Rules of Civil Procedure. 170 (For a
WL 5156653, at *4 (E.D. Cal. Dec. 9, 2008) (holding that agency's declaration was
conclusory and failed to provide description of files searched and search procedure);
Wiesner v. FBI, 577 F. Supp. 2d 450, 457-58 (D.D.C. 2008) (holding agency's declaration to
be inadequate because agency failed to explain why it did not use additional search terms
provided by plaintiff), aff'd, No. 10-5013, 2010 WL 3734097 (D.C. Cir. Sept. 23, 2010);
Bonaparte v. DOJ, 531 F. Supp. 2d 118, 122 (D.D.C. 2008) (denying agency's motion for
summary judgment because agency failed to "describe the filing systems searched, the
search methods employed and the search terms utilized, nor has [it] averred that all files
likely to contain responsive records were searched"); People for the Am. Way Found., 503 F.
Supp. 2d at 294 (finding agency's declaration insufficient because neither search terms nor
reasons for limiting search were provided); Friends of Blackwater v. U.S. Dep't of Interior,
391 F. Supp. 2d 115, 122 (D.D.C. 2005) (concluding that agency's failure to locate documents
known to exist, when combined with affidavit that did not specify terms used in conducting
search, rendered search inadequate); Maydak v. DOJ, 362 F. Supp. 2d 316, 326 (D.D.C.
Mar. 30, 2005) (finding agency's declaration to be inadequate where it contained "no
information about the search terms and the specific files searched" and failed to specifically
aver that "all files likely to contain responsive records were searched").
See, e.g., DiBacco v. Dep't of Army, 926 F.3d 827, 833 (D.C. Cir. 2019) (holding that
although some information was relayed to declarant by subordinates, declarations in FOIA
cases may include such information without running afoul of Rule 56); Carney v. DOJ, 19
F.3d 807, 814 (2d Cir. 1994) ("An affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy Rule 56(e); there is no need for the
agency to supply affidavits from each individual who participated in the actual search.");
Maynard, 986 F.2d at 560 (same); SafeCard, 926 F.2d at 1202 (ruling that employee "in
charge of coordinating the [agency's] search and recovery efforts [is] most appropriate
person to provide a comprehensive affidavit"); see also Patterson v. IRS, 56 F.3d 832, 841
(7th Cir. 1995) (holding appropriate declarant's reliance on standard search form completed
by his predecessor); Holt v. DOJ, 734 F. Supp. 2d 28, 38 (D.D.C. 2010) (accepting agency's
affidavits where "each declarant has stated his or her familiarity with the component's
procedures for handling FOIA and Privacy Act requests, and each declaration is based on
the declarant's review of the component's official files"); Hersh & Hersh v. HHS, No. 064234, 2008 WL 901539, at *4 (N.D. Cal. Mar. 31, 2008) (explaining that agency's
declaration meets personal knowledge requirement when "the supervisor in charge of
coordinating the agency's search effort, or responsible for same, has submitted an affidavit
describing the search"); Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *3 (E.D. Pa. Nov.
3, 2006) (holding agency employee's declaration admissible because employee's
"statements [were] based either on 'personal examination' of the responsive documents or
on information provided to him by employees under his supervision"); Judicial Watch, Inc.
v. U.S. Dep't of Commerce, 337 F. Supp. 2d 146, 160-61 (D.D.C. 2004) (ruling that
declarations from employee who coordinated agency's searches satisfied personal
knowledge requirement); Kay v. FCC, 976 F. Supp. 23, 33 n.29 (D.D.C. 1997) ("Generally,
declarations accounting for searches of documents that contain hearsay are acceptable."),
170

59

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

further discussion of this "personal knowledge" requirement, see Litigation
Considerations, Summary Judgment, below.)
While the initial burden rests with an agency to demonstrate the adequacy of its
search, 171 once that obligation is satisfied, the agency's position can be rebutted "only by
showing that the agency's search was not made in good faith," 172 because agency
aff'd, 172 F.3d 919 (D.C. Cir. 1998) (unpublished table decision); cf. Lahr v. NSTB, 569 F.3d
964, 989 (9th Cir. 2009) ("[T]he court does not need to have an affidavit from each person
engaged in the search; such a practice would be exceptionally cumbersome on the
government, and needlessly so."; Rosenfeld v. DOJ, No. 07-3240, 2008 WL 3925633, at *12
(N.D. Cal. Aug. 22, 2008) (concluding that declarant's statements with respect to field
offices were inadmissible because no evidence was provided that declarant directly
supervises field offices); Bingham v. DOJ, No. 05-0475, 2006 WL 3833950, at *3-4 (D.D.C.
Dec. 29, 2006) (concluding that declarant had sufficient knowledge of subject matter and,
"therefore, need not have been employed by the responding agency at the time of the facts
underlying the requested records"); Homer J. Olsen, Inc. v. U.S. Dep't of Transp. Fed.
Transit Admin., No. 02-00673, 2002 WL 31738794, at *5 n.4 (N.D. Cal. Dec. 2, 2002)
(sustaining objection to declaration from employee who had no personal knowledge about
what records were produced by regional office in response to request); Katzman v. CIA, 903
F. Supp. 434, 438-39 (E.D.N.Y. 1995) (finding declaration from agency's FOIA coordinator
inadequate when agency initially misidentified requester's attorney as subject of request,
and requiring declarations from supervisors in each of agency's three major divisions
attesting that search was conducted for correct subject).
See Havemann, 629 F. App'x at 538 (noting that agency has burden to establish adequacy
of search); Patterson, 56 F.3d at 840 (recognizing that agencies have initial burden to
demonstrate that search was reasonable and adequate); Maynard, 986 F.2d at 560 (same);
Miller v. Dep't of State, 779 F.2d 1378, 1378 (8th Cir. 1986) (same); Weisberg v. DOJ, 705
F.2d 1344, 1351 (D.C. Cir. 1983) (same); Kean v. NASA, 480 F. Supp. 2d 150, 156 (D.D.C.
2007) ("The burden of proof is on the government to show that its search was reasonably
calculated to uncover all relevant documents."); see also Santos v. DEA, 357 F. Supp. 2d 33,
37 (D.D.C. 2004) ("Conclusory statements that the agency has reviewed the relevant files
are insufficient to support summary judgment."); Bennett v. DEA, 55 F. Supp. 2d 36, 40
(D.D.C. 1999) (pointing out that affidavit must provide details of scope of search; "simply
stating that 'any and all records' were searched is insufficient").
171

Maynard, 986 F.2d at 560 (citing Miller, 779 F.2d at 1383); see, e.g., Weisberg, 705 F.2d
at 1351-52 (rejecting plaintiff's bad faith argument after finding that defendant
demonstrated an adequate search); Brown v. FBI, 873 F. Supp. 2d 388, 400 (D.D.C. 2012)
("Because plaintiff's pleading simply states that defendant 'has unlawfully refused and/or
withheld records,' the Court has no difficulty finding that defendant's search was
adequate."); Mosby v. Hunt, No. 07-492, 2010 WL 1837925, at *3 (D.D.C. May 5, 2010)
(stating that plaintiff's "general criticism" is not enough to establish that agency's search not
done in good faith); Fischer v. DOJ, 723 F. Supp. 2d 104, 108-09 (D.D.C. 2010) (ruling that
"mistakes do not imply bad faith" and, "[i]n fact, the agency's cooperative behavior of
notifying the Court and plaintiff that it had discovered a mistake, if anything, shows good
faith"); Ford v. DOJ, No. 07-1305, 2008 WL 2248267, at *4 (D.D.C. May 29, 2008)
(explaining that "[i]t is plaintiff's burden in challenging the adequacy of an agency's search
172

60

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

declarations are "entitled to a presumption of good faith." 173 Consequently, "the failure
of a search to produce particular documents, or 'mere speculation that as yet uncovered
documents might exist,' does not undermine the adequacy of a search." 174 Similarly,
to present evidence rebutting the agency's initial showing of a good faith search"); Graves v.
EEOC, No. 02-6842, slip op. at 11 (C.D. Cal. Mar. 26, 2004) (declaring that once agency
demonstrates adequacy of its search, burden shifts to plaintiff "to supply direct evidence of
bad faith" to defeat summary judgment), aff'd, 144 F. App'x 626 (9th Cir. 2005); Windel v.
United States, No. 02-306, 2004 WL 3363406, at *3 (D. Alaska Sept. 30, 2004) (concluding
that plaintiff's "mere recitation" that several individuals should have been contacted as part
of agency's search did not constitute evidence of bad faith); Tota v. United States, No. 990445E, 2000 WL 1160477, at *2 (W.D.N.Y. Jul. 31, 2000) (explaining that to avoid
summary judgment in favor of agency, plaintiff must show "bad faith," by "presenting
specific facts showing that documents exist" that were not produced); cf. Accuracy in Media,
Inc. v. NTSB, No. 03-00024, 2006 WL 826070, at *9-10 (D.D.C. Mar. 29, 2006) (reasoning
that "a requester cannot challenge the adequacy of a search based on the underlying actions
that are the subject of the request, [and that] it may challenge the adequacy of a search by
arguing that the search itself, rather than the underlying agency actions, was conducted in
bad faith"); Brophy v. DOD, No. 05-360, 2006 WL 571901, at *8 (D.D.C. Mar. 8, 2006)
(finding that agency's search was conducted in good faith, even though the agency "was
deplorably tardy in releasing the documents that were found"); Judicial Watch, Inc., 337 F.
Supp. 2d at 161 (finding that plaintiff's attempt to discredit search with its own declaration
was "insufficient to overcome the personal knowledge-based" declarations submitted by
agency, which fully described its search; concluding further that any failings associated with
the agency's first search did not undermine its second search, which was "sufficient under
the law").
Chilingirian v. EOUSA, 71 F. App'x 571, 572 (6th Cir. 2003) (citing U.S. Dep't of State v.
Ray, 502 U.S. 164, 179 (1991)); Carney, 19 F.3d at 812 (holding that "[a]ffidavits submitted
by an agency are 'accorded a presumption of good faith,' (quoting Safecard, 926 F.2d at
1200)); see, e.g., Havemann, 629 F. App'x at 539 ("The court is entitled to accept the
credibility of such affidavits, so long as it has no reason to question the good faith of the
agency."); Coyne v. United States, 164 F. App'x 141, 142 (2d Cir. 2006) (per curiam)
(reiterating that agency affidavits are entitled to presumption of good faith) (citing Grand
Cent. P'ship, 166 F.3d at 489); Peltier v. FBI, No. 03-905, 2005 WL 735964, at *4 (W.D.N.Y.
Mar. 31, 2005) (same) (citing Carney, 19 F.3d at 812); Butler v. SSA, No. 03-0810, slip op. at
5 (W.D. La. June 25, 2004), (same), aff'd on other grounds, 146 F. App'x 752, 753 (5th Cir.
2005); Wood v. FBI, 312 F. Supp. 2d 328, 340 (D. Conn. 2004) (same (citing Carney, 19
F.3d at 812)), aff'd in part, rev'd in part on other grounds & remanded, 432 F.3d 78 (2d Cir.
2005); Piper, 294 F. Supp. 2d at 24 (same (citing Ground Saucer Watch, Inc., 692 F.2d at
771)).
173

Lasko v. DOJ, No. 10-5068, 2010 WL 3521595, at *1 (D.C. Cir. Sept. 3, 2010) (quoting
Wilber v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004))); see, e.g., Assassination Archives
Research Ctr. v. CIA, No. 18-5280, 2019 WL 691517, at *1 (D.C. Cir. Feb. 15, 2019) (finding
search adequate notwithstanding fact that agency did not use precise search terms
suggested by requester and did not locate several records requester speculated existed);
Clemente v. FBI, 867 F.3d 111, 118 (D.C. Cir. 2017) (holding search adequate although
requester believes that additional records exist); Reporters Comm. for Freedom of the Press,
174

61

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

877 F.3d at 408 (finding search inadequate for other reasons but noting "[t]hat a few
responsive documents [which] may have slipped through the cracks does not, without more,
call into question the search's overall adequacy."); Dibacco, 795 F.3d at 190-91 (finding that
"adequacy – not perfection – is the standard that FOIA sets" and stating that requester's
argument that agency's search was inadequate because it failed to turn up certain records
was "losing claim put to bed twenty-five years ago and age has not improved it" (citing
Oglesby, 920 F.2d at 67 n.13)); Pub. Emp. for Envtl. Responsibility v. U.S. Section, Int'l
Boundary & Water Comm'n, 740 F.3d 195, 200 (D.C. Cir. 2014) (noting that "an agency's
failure to turn up every responsive document in an initial search is not necessarily evidence
of bad faith"); Steinberg, 23 F.3d at 552 (noting that requester's "'[m]ere speculation that as
yet uncovered documents may exist does not undermine the finding that the agency
conducted a reasonable search'" for them (quoting SafeCard, 926 F.2d at 1201)); Kucernak
v. FBI, 129 F.3d 126, 126 (9th Cir. 1997) ("Mere allegations that the government is shielding
or destroying documents does [sic] not undermine the adequacy . . . of the search.")
(unpublished table decision); Citizens for Responsibility & Ethics in Wash. v. DOJ, 292 F.
Supp. 3d 284, 288 (D.D.C. 2018) (finding agency's search reasonable although requester
believes additional records exist); Attkisson v. DOJ, 205 F. Supp. 3d 92, 95 (D.D.C. 2016)
(same); Pinson v. DOJ, 61 F. Supp. 3d 164, 179 (D.D.C. 2015) (finding that "the fact that
additional documents responsive to [the] requests may exist, or that the agency's searches
have been imperfect, does not mean that the searches were inadequate"); Kintzi v. Office of
the Att'y Gen., No. 08-5830, 2010 WL 2025515, at *6 (D. Minn. May 20, 2010) ("No
evidence before the court indicates that the document [plaintiff] seeks exists. Therefore, the
court determines that the [agency] conducted a reasonable search and properly denied [the]
request."); Kromrey v. DOJ, No. 09-376, 2010 WL 2633495, at *1 (W.D. Wis. June 25, 2010)
("While plaintiff alleges that there must be more records, he has produced no evidence that
there are any additional records, nor does he dispute the fact that the FBI conducted a
search reasonably designed to yield documents responsive to his request."), aff'd, 423 F.
App'x 624 (7th Cir. 2011); Clemente v. FBI, 741 F. Supp. 2d 64, 79 (D.D.C. 2010) (finding
that plaintiff "cannot demonstrate that the FBI's search was inadequate by listing
hypothetical documents that she believes could and should have been located and released
to her"); Citizens for Responsibility & Ethics in Wash. v. DOJ, 405 F. Supp. 2d 3, 5 (D.D.C.
2005) (rejecting plaintiff's assertion that additional documents must exist "given the
magnitude of the [alleged] scandal" that was subject of its request); Flowers v. IRS, 307 F.
Supp. 2d 60, 67 (D.D.C. 2004) (stating that "'purely speculative claims about the existence
and discoverability of other documents'" are not enough to rebut presumption of good faith
(quoting SafeCard, 926 F.2d at 1200)); Bay Area Lawyers Alliance for Nuclear Arms Control
v. Dep't of State, 818 F. Supp. 1291, 1295 (N.D. Cal. 1992) ("Plaintiff's incredulity at the fact
that no responsive documents were uncovered . . . does not constitute evidence of
unreasonableness or bad faith."); cf. Students Against Genocide v. Dep't of State, 257 F.3d
828, 839 (D.C. Cir. 2001) ("[T]hat the Department gave SAGE more information than it
requested does not undermine the conclusion that its search was reasonable and
adequate."). But see Meyer v. BOP, 940 F. Supp. 9, 14 (D.D.C. 1996) (reference to
responsive pages in agency memorandum, coupled with equivocal statement in declaration
that it "appears" responsive pages do not exist, requires further clarification by agency);
Katzman v. Freeh, 926 F. Supp. 316, 320 (E.D.N.Y. 1996) (because additional documents
were referenced in released documents, summary judgment was withheld "until defendant
releases these documents or demonstrates that they either are exempt from disclosure or
cannot be located").
62

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

courts have held that an agency's belated discovery of documents does not undermine the
search adequacy. 175 Indeed, when an agency does subsequently locate additional
documents initially believed to have been lost or destroyed, courts generally have
accepted this as evidence of the agency's good-faith efforts. 176
Am. Oversight v. DOJ, No. 18-0319, 2019 WL 3430667, at *6 (D.D.C. July 30, 2019)
(finding that "the fact that an agency discovers an error in its earlier representations, and
thereafter changes course, does not alone displace the good-faith presumption courts accord
its declarations"); Lamb v. Millennium Challenge Corp., 334 F. Supp. 3d 204, 212-13
(D.D.C. 2018) (finding defendant's search adequate following supplemental declaration filed
by defendant which explained inadvertent omission of document in prior release to
plaintiff); Ireland v. IRS, No. 16-02855, 2017 WL 1731679, at *5 (C.D. Cal. May 1, 2017)
(holding that fact that some documents were not discovered until second, more exhaustive,
search does not mean that original search was inadequate); Corbeil v. DOJ, No. 04-2265,
2005 WL 3275910, at *3 (D.D.C. Sept. 26, 2005) (declaring that "an agency's prompt report
of the discovery of additional responsive materials may be viewed as evidence of its good
faith efforts to comply with its obligations under the FOIA"); W. Ctr. for Journalism v. IRS,
116 F. Supp. 2d 1, 10 (D.D.C. 2000) (concluding that agency conducted reasonable search
and acted in good faith by locating and releasing additional responsive records mistakenly
omitted from its initial response, because "it is unreasonable to expect even the most
exhaustive search to uncover every responsive file; what is expected of a law-abiding agency
is that the agency admit and correct error when error is revealed"), aff'd, 22 F. App'x 14
(D.C. Cir. 2001).
175

See Maynard, 986 F.2d at 565 ("Rather than bad faith, we think that the forthright
disclosure by the INS that it had located the misplaced file suggests good faith on the part of
the agency."); Meeropol, 790 F.2d at 953 (rejecting argument that later-produced records
call the adequacy of search into question, because "[i]t would be unreasonable to expect
even the most exhaustive search to uncover every responsive file"); Goland, 607 F.2d at 370
(refusing to undermine validity of agency's prior search because one week following decision
by court of appeals agency had discovered numerous, potentially responsive, additional
documents several months earlier); Kalwasinski v. BOP, No. 08-9593, 2010 WL 2541159, at
*1 (S.D.N.Y. Mar. 15, 2010) (magistrate's recommendation), adopted, (S.D.N.Y. June 23,
2010) (finding BOP's prior search reasonable although it did not initially locate responsive
records); Richardson v. DOJ, 730 F. Supp. 2d 225, 231-32 (D.D.C. 2010) (holding that
EOUSA's search was adequate even though it did not initially locate any records responsive
to plaintiff's request); Nat'l Inst. of Military Justice v. DOD, 404 F. Supp. 2d 325, 333-34
(D.D.C. 2005) (stating that "[a]lthough the agency was not initially diligent, that alone does
not demonstrate bad faith, especially in light of the subsequent efforts to search for
responsive records"); Corbeil v. DOJ, No. 04-2265, 2005 WL 3275910, at *3 (D.D.C. Sept.
26, 2005) ("[A]n agency's prompt report of the discovery of additional responsive materials
may be viewed as evidence of its good faith efforts to comply with its obligations under
FOIA."); Lechliter, 371 F. Supp. 2d at 593 (finding that agency acted in good faith by
locating additional documents after error associated with its initial search was corrected);
Landmark Legal Found., 272 F. Supp. 2d at 63 (emphasizing that "continuing discovery and
release of documents does not provide that the original search was inadequate, but rather
shows good faith on the part of the agency that it continues to search for responsive
documents"); Campaign for Responsible Transplantation v. FDA, 219 F. Supp. 2d 106, 111
176

63

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Moreover, courts have held that delays in responding to requests do not amount to
a showing of bad faith or demonstrate that a search was unreasonable. 177 Even when a
requested document indisputably exists or once existed, summary judgment is not
generally defeated by an unsuccessful search for the document, so long as the search was
diligent. 178 It has been held that "[n]othing in the law requires the agency to document
(D.D.C. 2002) (suggesting that discovery of fifty-five additional documents amounted to
"proverbial 'drop in the bucket'" in light of the voluminous number of documents located
during agency's search); Torres v. CIA, 39 F. Supp. 2d 960, 963 (N.D. Ill. 1999) (rejecting
adequacy of search challenge when "a couple of pieces of paper – having no better than
marginal relevance" – were uncovered during additional searches); Gilmore v. NSA, No. 923646, 1993 U.S. Dist. LEXIS 7694, at *27 (N.D. Cal. Apr. 30, 1993) (finding that acceptance
of plaintiff's "'perverse theory that a forthcoming agency is less to be trusted in its
allegations than an unyielding agency'" would "'work mischief in the future by creating a
disincentive for the agency to reappraise its position'" (quoting Military Audit Project v.
Casey, 656 F.2d 724, 754 (D.C. Cir. 1981))), aff'd, 76 F.3d 386 (9th Cir. 1995) (unpublished
table decision); cf. Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1257
(11th Cir. 2008) (concluding that with respect to disclosure of additional documents not
found at time of initial search, district court correctly did not draw adverse inference against
agency based on agency's adequate explanation for late production of records); North v.
DOJ, 774 F. Supp. 2d 217, 223 (D.D.C. 2011) ("T]he agency's previous failure to demonstrate
that it conducted an adequate search does not call into question the validity of its new
search for responsive records."); Fischer v. DOJ, 723 F. Supp. 2d 104, 108 (D.D.C. 2010)
(rejecting plaintiff's arguments that "defendant's failure to produce documents until after it
changed its disclosure policies, or until after litigation commenced, evidences bad faith or
an inadequate search."); Envtl. Prot. Servs. v. EPA, 364 F. Supp. 2d 575, 583 (D.D.C. 2005)
(concluding that EPA conducted reasonable searches despite discovery of documents not
initially found; stating that while EPA's initial searches were flawed, EPA had remedied such
preliminary deficiencies).
See Navigators Ins. Co., 155 F. Supp. 3d at 169 ("The touchstone of the reasonableness
inquiry appears to be simply the thoroughness of the search, notwithstanding the tardiness
of the results." (quoting S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., No.
06-2845, 2008 WL 2523819, at *16 (E.D. Cal. June 20, 2008)); Calvert v. U.S., 715 F. Supp.
2d 44, 47 (D.D.C. 2010) (dismissing plaintiff's argument that delay in producing responsive
records demonstrated that search was not done in good faith); Budik v. Dep't of Army, 742
F. Supp. 2d 20, 31-35 (D.D.C. 2010) (finding that Army's delay in responding to requests,
discrepancies concerning page counts, lack of notice to plaintiff regarding her right to
administratively appeal, and improper redaction of signature block are not sufficient to
demonstrate bad faith).
177

See Kuzma v. DOJ, 692 F. App'x 30, 32-33 (2d Cir. 2017) (holding that search was
reasonable despite fact that agency could not find record that its search suggested existed);
Kohake v. Dep't of Treasury, 630 F. App'x 583, 588 (6th Cir. 2015) (finding that "the fact
that the IRS may have destroyed certain records pursuant to its policy does not render the
search at issue unreasonable"); Stalcup, 768 F.3d at 74 ("The omission of a single document
in this case does not negate what is otherwise a reasonable inquiry."); Whitfield v. Dep't of
Treasury, 255 F. App'x 533, 534 (D.C. Cir. 2007) (per curiam) ("[T]he agency's failure to
turn up specific documents does not undermine the determination that the agency
178

64

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

conducted an adequate search for the requested records."); Twist v. Gonzales, 171 F. App'x
855, 855 (D.C. Cir. 2005) (ruling that failure to locate specific documents does not render
search inadequate or demonstrate that search was conducted in bad faith); Nation
Magazine, 71 F.3d at 892 n.7 ("Of course, failure to turn up [a specified] document does not
alone render the search inadequate."); Citizens Comm'n on Human Rights, 45 F.3d at 1328
(adequacy of search not undermined by inability to locate 137 out of 1000 volumes of
responsive material, absent evidence of bad faith, and when affidavit contained detailed,
nonconclusory account of search); Maynard, 986 F.2d at 564 ("'The fact that a document
once existed does not mean that it now exists; nor does the fact that an agency created a
document necessarily imply that the agency has retained it.'" (quoting Miller, 779 F.2d at
1385)); Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys.,
762 F. Supp. 2d 123, 134 (D.D.C. 2011) (determining search adequate even though agency's
search failed to locate responsive record previously posted on agency's website); McGehee v.
DOJ, 800 F. Supp. 2d 220, 230 (D.D.C. 2011) (determining that although some enclosures
and attachments are missing from production it is not enough "in the context of the FBI's
search and the size of its production . . . to render the FBI's search inadequate"); Dorsey v.
EEOC, No. 09-519, 2010 WL 3894590, at *3 (S.D. Cal. Sept. 29, 2010) (finding that
plaintiff's "conclusory statement" that EEOC "lost or destroyed" responsive records "does
not raise an issue of fact precluding summary judgment" in favor of agency), appeal
dismissed, 481 F. App'x 417 (9th Cir. 2012); Elliott v. NARA, No. 06-1246, 2006 WL
3783409, at *3 (D.D.C. Dec. 21, 2006) ("An agency's search is not presumed unreasonable
because it fails to find all the requested information."); Judicial Watch v. DOT, No. 02-566,
2005 WL 1606915, at *7 (D.D.C. July 7, 2005) (upholding search even though some
responsive records, which once existed, were destroyed prior to plaintiff's request); People
for the Ethical Treatment of Animals v. USDA, No. 03-195, 2005 WL 1241141, at *4 (D.D.C.
May 24, 2005) (rejecting plaintiff's argument that search was inadequate simply because
disclosed documents refer to others that were not produced or listed in Vaughn Index);
Allen v. U.S. Secret Serv., 335 F. Supp. 2d 95, 99 (D.D.C. 2004) ("[T]he fact that plaintiff
[independently] discovered one document that possibly should have been located by the
Service does not render the search process unreasonable."); Grace v. Dep't of Navy, No. 994306, 2001 WL 940908, at *4 (N.D. Cal. Aug. 13, 2001) (finding "more than reasonably
adequate" agency's search for misplaced personnel records), aff'd, 43 F. App'x 76 (9th Cir.
2002); Kay, 976 F. Supp. at 33 (explaining that search not inadequate simply because
plaintiff received in discovery documents not produced in response to FOIA request;
discovery "may differ from FOIA disclosure procedures"); cf. Santana v. DOJ, 828 F. Supp.
2d 204, 209 (D.D.C. 2011) (determining FOIA provides no remedy in situation where
records sought are no longer within government's possession); Callaway v. U.S. Dep't of the
Treasury, 824 F. Supp. 2d 153, 157 (D.D.C. 2011) (noting that Court's "authority is limited to
the release of non-exempt agency records in existence at the time the agency receives the
FOIA request").
65

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

the fate of documents it cannot find." 179 On occasion, though, some courts have required
agencies to provide additional details about why particular records could not be found. 180
The Court of Appeals for the District of Columbia Circuit has required an agency to seek
out the assistance of an employee closely related to specific records when those records
could not be found, 181 but at the same time, the District Court for the District of Columbia
has held that individual components within an agency are under no obligation to seek out
additional information held by other components to aid in the processing of the
request. 182

Roberts v. DOJ, No. 92-1707, 1995 WL 356320, at *2 (D.D.C. Jan. 28, 1993); see, e.g.,
Miller, 779 F.2d at 1385 ("Thus, the Department is not required by the Act to account for
documents which the requester has in some way identified if it has made a diligent search
for those documents in places in which they might be expected to be found."); Gerstein,
2008 WL 4415080, at *5 ("[A]n agency's failure to identify a specific document in its search
does not alone render a search inadequate."); West v. Spellings, 539 F. Supp. 2d 55, 62
(D.D.C. 2008) ("While four files were missing, FOIA does not require [the agency] to
account for them, so long as it reasonably attempted to located them."); Ferranti v. DOJ,
No. 03-2385, 2005 WL 3040823, at *2 (D.D.C. Jan. 28, 2005) (rejecting plaintiff's
"contention that EOUSA should account for previously possessed records").
179

See Boyd v. U.S. Marshals Serv., No. 99-2712, 2002 U.S. Dist. LEXIS 27734, at *4 (D.D.C.
March 15, 2002) (stating that agency's declaration should have explained why particular
report, which was known to exist, was not located, and requiring agency to "explain its
failure to locate this report in a future motion"); Trentadue v. FBI, No. 04-772, slip op. at 56 (D. Utah May 5, 2004) (finding search insufficient in light of specific evidence proffered
by plaintiff that certain documents do exist and were not found through FBI's automated
search); Tran v. DOJ, No. 01-0238, 2001 U.S. Dist. LEXIS 21552, at *12-13 (D.D.C. Nov. 20,
2001) (finding that "it is not enough for [an agency] to simply state that [the] documents are
destroyed or missing" without providing more explanation), motion for summary judgment
granted, No. 01-0238, 2002 WL 535815 (D.D.C. Mar. 12, 2002); Kronberg v. DOJ, 875 F.
Supp. 861, 870-71 (D.D.C. 1995) (requiring government to provide additional explanation
for absence of documentation required by statute and agency regulations to be created,
when plaintiff presented evidence that other files, reasonably expected to contain responsive
records, were not identified as having been searched).
180

See Valencia-Lucena, 180 F.3d at 328 (suggesting that unless it would be "fruitless" to do
so, agency is required to seek out employee responsible for record "when all other sources
fail to provide leads to the missing record" and when "there is a close nexus . . . between the
person and the particular record").
181

White v. DOJ, 840 F. Supp. 2d 83, 90 (D.D.C. 2012) (rejecting argument that ValenciaLucena required search of other components within same agency because in ValenciaLucena "court concluded that interviewing the [agency] employee was a necessary step
because the [agency] had 'no responsibility under FOIA to make inquiries of other law
enforcement agencies . . . for documents no longer within its control or possession'" and,
therefore, "Valencia-Lucena supports the conclusion that the USAO was under no obligation
to seek additional information from the FBI in order to perform an adequate search in the
182

66

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Mootness and Other Grounds for Dismissal
If during the course of a FOIA lawsuit it is determined that all documents
responsive to the underlying FOIA request have been released in full to the requester,
courts generally dismiss the suit as moot because there is no justiciable case or
controversy. 183 However, in instances where an agency has released documents, but other
related issues remain unresolved, courts frequently will not dismiss the action. 184
USAO record system in response to [the] request"), aff'd, No. 12-5067, 2012 WL 3059571, at
*1 (D.C. Cir. July 19, 2012).
See, e.g., Heily v. DOD, No. 13-5055, 2013 WL 5975876, at *1 (D.C. Cir. Oct. 16, 2013)
(affirming dismissal of plaintiff's claims as moot after plaintiff received the requested
documents while case was pending); Williams & Connolly v. SEC, 662 F.3d 1240, 1240 (D.C.
Cir. 2011) (affirming judgment of district court that controversy is moot with respect to
eleven sets of documents that were provided to plaintiff in full in connection with criminal
prosecution); Cornucopia Inst. v. USDA, 560 F.3d 673, 675-78 (7th Cir. 2009) (concluding
that agency's production of documents, completeness of which was uncontested, mooted
plaintiff's claims); Brown v. DOJ, 169 F. App'x 537, 540 (11th Cir. 2006) (holding that FOIA
claim became moot when documents were released); N.Y. Times Co. v. FBI, 822 F. Supp. 2d
426, 431 (S.D.N.Y. 2011) (granting defendant's motion to dismiss for lack of subject matter
jurisdiction where FBI provided an unredacted copy of requested report); Von Grabe v.
DHS, No. 09-2162, 2010 WL 3516491, at *4 (M.D. Fla. Sept. 3, 2010) (dismissing FOIA
claim as moot where requested record was released during course of litigation), aff'd on
other grounds, 440 F. App'x 687 (11th Cir. 2011); cf. Feinman v. FBI, 598 F. App'x 15, 15-16
(D.C. Cir. 2015) (finding plaintiff's request for search moot where FBI subsequently
searched and located no responsive records); Haji v. ATF, No. 03-847, 2004 WL 1783625, at
*2-3 (S.D.N.Y. Aug. 10, 2004) (holding that plaintiff's request is moot because requested
files, if ever in existence, were destroyed at World Trade Center during attacks of September
11, 2001).
183

See Cause of Action v. FTC, 799 F.3d 1108, 1114 (D.C. Cir. 2015) (holding that plaintiff's
fee waiver claim was not moot "[b]ecause the FTC has not produced without charge all the
non-exempt documents [plaintiff] sought"); Marin Inst. for the Prevention of Drug & Other
Alcohol Probs. v. HHS, 229 F.3d 1158, 1158 (9th Cir. 2000) (finding no mootness when
release of document at issue was "surreptitious[ ]" and not necessarily the document
plaintiff had requested) (unpublished disposition); Judicial Watch, Inc. v. U.S. Air Force,
No. 11-932, 2012 WL 1190297, at *1-3 (D.D.C. Apr. 10, 2012) (concluding that defendant's
production of document in one format does not moot plaintiff's claim for metadata
underlying another document format); McKinley v. FDIC, 756 F. Supp. 2d 105, 111 (D.D.C.
2010) (refusing to dismiss plaintiff's claims on mootness grounds where FDIC responded to
his requests, but issues as to adequacy of agency's search for responsive documents and
validity of its claims of exemption remained); Nw. Univ. v. USDA, 403 F. Supp. 2d 83, 86
(D.D.C. 2005) (finding no mootness despite belated release of documents because plaintiff
challenged adequacy of defendant's document production); Hudson v. FBI, No. 04-4079,
2005 WL 2347117, at *1-2 (N.D. Cal. Sept. 26, 2005) (refusing to dismiss plaintiff's
complaint as moot because, although disputed documents were released and FOIA claims
184

67

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The mootness doctrine can also arise in the fee context whereby an agency's
decision to waive fees at issue in the litigation renders moot a FOIA plaintiff's claims
concerning fee waivers or requests for a preferred fee status. 185
In cases where a FOIA plaintiff's complaint only alleged an unreasonable delay in
responding to a FOIA request and the agency subsequently responded by processing the
requested records, courts have dismissed the FOIA lawsuit as moot. 186 However, the
were resolved, related Privacy Act access claims had yet to be adjudicated); cf. Newport
Aeronautical Sales v. U.S. Dep't of the Air Force, 684 F.3d 160, 163-64 (D.C. Cir. July 17,
2012) (concluding that release of unredacted copies of requested records pursuant to DOD
directive rather than FOIA did not moot plaintiff's claim alleging continuing injury due to
agency's "pattern of denying FOIA requests for [that type] of data" and "requiring [plaintiff]
to seek the data under restrictive terms" of directive); Yonemoto v. VA, 686 F.3d 681, 68992 (9th Cir. 2012) (determining that plaintiff's FOIA claim with respect to certain emails is
not moot where VA offered those records to plaintiff in unredacted form in his capacity as
agency employee, but placed restrictions on his ability to distribute them); Furrow v. BOP,
420 F. App'x 607, 610 (7th Cir. 2011) (vacating district court's decision dismissing action on
mootness grounds where agency permitted plaintiff to inspect records but plaintiff still
maintained that agency "has not provided everything [he] wants, and he disputes the
validity of the exemptions [that] the BOP claims"); Anderson v. HHS, 907 F.2d 936, 941
(10th Cir. 1990) (declaring that although plaintiff had already obtained all responsive
documents in private civil litigation, albeit subject to protective order, plaintiff's FOIA
litigation to obtain documents free from any such restriction remained viable).
See, e.g., Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006) (finding that agency's release of
documents without seeking payment mooted plaintiff's "arguments that the district court's
denial of a fee waiver was substantively incorrect"); Inst. for Pol'y Stud. v. CIA, 885 F. Supp.
2d 120, 153 (D.D.C. 2012) (denying as moot plaintiff's request for declaratory relief where
defendant initially denied fee waiver but ultimately waived fees as matter of administrative
discretion because "the fact that plaintiff might at some point in the future file another FOIA
claim and that defendant might then refuse to waive fees is no more than speculative"); Hall
v. CIA, 668 F. Supp. 2d 172, 195 (D.D.C. 2009) (holding that issue as to plaintiff's fee status
is moot where CIA decided as matter of administrative discretion to accord plaintiff same
treatment "'as what representatives of the news media receive'"); Schoenman v. FBI, 573 F.
Supp. 2d 119, 135-36 (D.D.C. 2008) (finding fee waiver issue moot where agency waived
search fees and copying costs and declining to hold that defendant's initial refusal to waive
fees was incorrect because "'such a declaration would be an advisory opinion'"); cf. Citizens
for Resp. & Ethics in Wash. v. Dep't of Educ., 593 F Supp. 2d 261, 268-69 (D.D.C. 2009)
(concluding that plaintiff's fee waiver request is moot with respect to set of documents that
were included as part of defendant's search in another case involving same parties).
185

See, e.g., Yonemoto, 686 F.3d at 689 (noting that "the production of all nonexempt
material, 'however belatedly, moots FOIA claims'" (quoting Papa v. United States, 281 F.3d
1004, 1013 (9th Cir. 2002))); Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (dismissing
case as moot because only issue in case was "tardiness" of agency response, which was made
moot by agency disclosure determination); Atkins v. DOJ, 946 F.2d 1563, 1563 (D.C.
186

68

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Court of Appeals for the District of Columbia Circuit, in Payne Enterprises v. United
States, 187 held that when records are routinely withheld at the initial processing level, but
consistently released after an administrative appeal and this situation results in
continuing injury to the requester, a lawsuit challenging that practice is ripe for
adjudication and is not subject to dismissal on the basis of mootness. 188 Moreover,
Cir.1991) ("The question whether DEA complied with the [FOIA's] time limitation in
responding to [plaintiff's] request is moot because DEA has now responded to this
request.") (unpublished table decision); Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir.
1987) ("'[H]owever fitful or delayed the release of information, . . . if we are convinced
appellees have, however belatedly, released all nonexempt material, we have no further
judicial function to perform under the FOIA.'" (quoting Perry v. Block, 684 F.2d 121, 125
(D.C. Cir. 1982))); Bonilla v. DOJ, No. 11-20450, 2012 WL 204202, at *2 (S.D. Fla. Jan. 24,
2012) (granting defendant's motion to dismiss where agency released all non-exempt
documents and plaintiff's complaint only asserted claims alleging untimely disclosure of
requested records); Davidson v. BOP, No. 11-309, 2012 WL 5421161, at *3 (E.D. Ky. Nov. 6,
2012) (holding that in light of response by agency, plaintiff's claim was moot because even
though "more than two years have passed since [plaintiff] first submitted his FOIA request,"
plaintiff's complaint only sought response to his FOIA request); Meyer v. Comm'r of IRS,
No. 10-767, 2010 U.S. Dist. LEXIS 114758, at *15 (D. Minn. Sept. 27, 2010) (dismissing any
claim "based on the timeliness of the IRS's response" as moot in light of agency's response
to plaintiff's request); Calvert v. United States, 715 F. Supp. 2d 44, 47-48 (D.D.C. 2010)
(declaring that because plaintiff had not contested agency's withholdings or asserted any
"facts beyond delay to call into question the adequacy of defendant's search for responsive
records," "[t]he court's role in the process has thus come to an end"); United Transp. Union
Local 418 v. Boardman, No. 07-4100, 2008 WL 2600176, at *8 (N.D. Iowa June 24, 2008)
(dismissing plaintiff's FOIA claim as moot because although "defendants responded to the
FOIA request almost a year later, nothing indicates the defendants exercised bad faith in
responding"); In Def. of Animals v. NIH, 543 F. Supp. 2d 83, 112 (D.D.C. 2008) (declining
to find "improper delay or withholding of documents" because issue became moot when
agency produced all nonexempt records).
187

837 F.2d 486 (D.C. Cir. 1988).

Id. at 488-93; see also Hajro v. U. S. Citizenship & Immigration Serv., 811 F.3d 1086,
1101 (9th Cir. 2015) (finding that "a pattern or practice claim is not necessarily mooted by an
agency's production of documents"); Tipograph v. DOJ, 146 F. Supp. 3d 169, 174 (D.D.C.
2015) (finding that "[b]ecause [plaintiff] alleges that a policy or practice of the FBI will
impact her lawful access to information in the future, her claim for prospective declaratory
and injunctive relief is not moot simply because the FBI has now provided her with the
records to which she is entitled"); Info. Network for Responsible Mining v. DOE, No. 062271, 2008 WL 762248, at *3 n.5 (D. Colo. Apr. 30, 2008) (noting that "when plaintiff
alleges that the agency has engaged in a pattern or practice of withholding documents in
response to FOIA requests, belated production will not moot the plaintiff's claims"); cf.
Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221, 230-31 (D.D.C. 2011) (permitting claim
under FOIA's Section 552(a)(7)(B), which requires agencies to provide estimated date of
completion for certain requests, to proceed against one defendant based on plaintiff's
allegation that agency failed to respond to inquiries related to five separate requests on two
different dates); Gilmore v. DOE, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998) (allowing
188

69

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

"voluntary cessation" of the practice may not moot the claim unless the agency can
demonstrate that "'there is no reasonable expectation that the wrong will be repeated.'" 189
At the same time, when plaintiffs are unable to establish that an agency has engaged in
any pattern or practice of not complying with its obligations under the FOIA, courts have
consistently held that their claims are not ripe for adjudication. 190 (For a further
discovery on "pattern and practice" claim of agency delay in processing FOIA requests),
dismissed per stipulation, No. 95-0285 (N.D. Cal. Apr. 3, 2000). But cf. Pietrangelo v. U.S.
Army, 334 F. App'x 358, 360 (2d Cir. 2009) (noting that "[t]his Court has not yet recognized
or articulated the inquiry relevant to a pattern or practice claim in a FOIA context, but
[finding] we need not do so here"); Nkihtaqmikon v. Bureau of Indian Aff., 672 F. Supp. 2d
154, 170 (D. Me. 2009) (declining to decide whether court "is authorized to issue a
declaratory judgment condemning [agency's] pattern or practice of FOIA non-compliance").
189

Payne Enters. Inc., 837 F.2d at 492.

See, e.g., Walsh v. VA, 400 F.3d 535, 537 (7th Cir. 2005) (holding that theoretical
possibility of plaintiff having to wait again for records in future FOIA request is insufficient
to keep plaintiff's claim alive); Reg'l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 464-65
(4th Cir. 1999) (refusing to consider challenge to alleged policy of nondisclosure of
documents relating to ongoing investigations because claim was not "ripe"); Gilmore v. Nat'l
Sec. Agency, 76 F.3d 386, 386 (9th Cir. 1995) (refusing to grant injunction for alleged
"systemic agency abuse" in responding to FOIA requests where system of handling requests
was "reasonable" and records were "diverse and complex," requiring "painstaking review")
(unpublished disposition); N.Y. Times Co. v. FBI, 882 F. Supp. 2d 426, 431 (S.D.N.Y. 2011)
(dismissing plaintiff's "pattern or practice" claim where it has "failed to provide evidence of
prior similar instances to support its claim"); Muttitt, 813 F. Supp. 2d at 231 (concluding
that plaintiff's allegation that agency refused to provide estimated date of completion "only
one time" "is insufficient as a matter of law to state a claim for relief based on a policy,
pattern, or practice of violating FOIA"); Ctr. for Sustainable Econ. v. Dep't of the Treasury,
No. 09-00848, slip op. at 6-7 (D.N.M. May 5, 2010) (finding that action challenging
defendant's past practice regarding fee waiver requests is moot where defendant conceded
error and took corrective action to avoid repetition); Hart v. HHS, 676 F. Supp. 2d 846, 85556 (D. Ariz. 2009) (concluding that "[p]laintiffs have not presented sufficient evidence of a
'pattern' of delayed responses by [d]efendant" even though "[d]efendant did not comply
with the timeliness requirements in this case"); O'Neill v. DOJ, No. 05-0306, 2008 WL
819013, at *14 (E.D. Wis. Mar. 25, 2008) (determining that because plaintiff failed to show
that agency "had a policy of violating the FOIA, his claim is not ripe for judicial review");
Long v. DOJ, 450 F. Supp. 2d 42, 84-85 (D.D.C. 2007) (determining that plaintiff's claims
regarding delay in processing fee waiver request and its status under fee waiver provisions
of FOIA were moot because agency waived all fees in connection with request and also
concluding that plaintiff's fee status with respect to future requests was not ripe for
adjudication); Pub. Employees for Envtl. Resp. v. Dep't of the Interior, No. 06-182, 2006
WL 3422484, at *9-10 (D.D.C. Nov. 28, 2006) (denying injunctive relief as there is neither
evidence of policy or practice violating FOIA, nor cognizable danger that alleged FOIA
violation will recur); OSHA Data/CIH, Inc. v. Dep't of Labor, 105 F. Supp. 2d 359, 368
(D.N.J. 1999) (refusing to permit claim to go forward when no proof existed that agency
would routinely refuse to release data for period of time), aff'd, 220 F.3d 153 (3d Cir. 2000);
Swan View Coal. v. USDA, 39 F. Supp. 2d 42, 47 (D.D.C. 1999) (refusing to grant declaratory
190

70

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

discussion of FOIA Pattern-or-Practice claims, see Pattern-or-Practice Claims section,
below.)
FOIA lawsuits have also been dismissed when the plaintiff fails to prosecute the
records are publicly available under a separate statutory scheme upon payment of
fees, 192 or the claims presented are not ripe. 193 Additionally, a FOIA plaintiff's status as a
suit, 191

relief where agency's failure to timely respond was "an aberration"); Reg'l Mgmt. Corp. v.
Legal Servs. Corp., 10 F. Supp. 2d 565, 573 (D.S.C. 1998) (refusing to permit further
consideration of moot claim as there was no evidence of continuing injury to requester from
"isolated event"), aff'd in part & remanded in part on other grounds, 186 F.3d 457 (4th Cir.
1999).
See, e.g., Antonelli v. EOUSA, 25 F.3d 1053, 1053 (7th Cir. 1994) (affirming district
court's dismissal of complaint when, seven months after plaintiff's complaint was found
defective for lack of specificity, plaintiff had failed to amend) (unpublished disposition);
Castro v. ATF, No. 11-2197, 2012 WL 1556248, at *1 (D.D.C. May 2, 2012) (granting
defendant's motion for summary judgment as conceded where plaintiff failed to respond to
agency's motion and was advised by court of consequences of failure to do so); Comer v.
FBI, No. 09-2455, 2010 U.S. Dist. LEXIS 111558, at *2-3 (D.D.C. Oct. 20, 2010) (dismissing
pro se plaintiff's FOIA action because he "failed to respond to the court's order to show
cause and failed to prosecute the case").
191

See Kleinerman v. Patent & Trademark Off., No. 82-295, 1983 WL 658, at *1 (D. Mass.
Apr. 25, 1983) (dismissing FOIA action because Patent and Trademark Act gave plaintiff
independent right of access provided he paid for records); cf. Perales v. DEA, 21 F. App'x
473, 474 (7th Cir. 2001) (dismissing suit brought to obtain access to "implementing
regulation," because "§ 552(a)(3) of the FOIA does not cover material already made
available through publication in the Federal Register").
192

See, e.g., Petit-Frere v. U.S. Att'ys Off., 664 F. Supp. 2d 69, 72 (D.D.C. 2009) (holding
that lawsuit is not ripe for adjudication because, while "exhaustion of administrative
remedies is not jurisdictional," "as a prudential matter" lawsuit should be considered
"premature and not ripe for adjudication" in part because not doing so would deprive court
of "an adequate record for judicial review"); Love v. FBI, 660 F. Supp. 2d 56, 60 (D.D.C.
2009) (same); Jones v. DOJ, 653 F. Supp. 2d 46, 49-50 (D.D.C. 2009) (concluding that
issues presented are not ripe where plaintiff has failed to pay assessed fees or to
administratively appeal fee determination); O'Neill, 2008 WL 819013, at *14 (finding that
claim was not ripe where plaintiff could not establish that agency had policy whereby it
failed to search for records or refused to contact agency personnel with connection to
responsive records); Long, 450 F. Supp. 2d at 85 (finding that question of plaintiff's fee
status with respect to future requests was not ripe for adjudication); Odle v. DOJ, No. 052711, 2005 WL 2333833, at *2 (N.D. Cal. Sept. 22, 2005) (holding that, as defendants no
longer assert "Glomar" defense, the plaintiff's claim regarding defendants' use of that
defense became moot, and that plaintiff's contention that defendants were unlawfully
withholding documents was not ripe for adjudication as defendants were in midst of
reviewing and processing requested documents); Doe v. Veneman, 230 F. Supp. 2d 739, 746
(W.D. Tex. 2002) (dismissing claims regarding "other pending FOIA requests" as "too broad
for the Court to effectively review because such requests are numerous, request a variety of
193

71

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

fugitive may warrant dismissal under the "fugitive disentitlement doctrine." 194 (For a
further discussion of fugitives and their FOIA requests, see Procedural Requirements,
FOIA Requesters, above). Notably, dismissal is not necessarily appropriate when a
plaintiff dies, as a FOIA claim may be continued by a properly substituted party. 195
A FOIA lawsuit may also be dismissed under the doctrine of res judicata,
sometimes also referred to as "claim preclusion." 196 Res judicata precludes relitigation of
an action when it is brought by a plaintiff against the same agency for the same
documents, the withholding of which previously has been adjudicated. 197 However, res
information, and are still pending with administrative agencies"), aff'd in part & rev'd in
part on other grounds, 380 F.3d 807, 821 (5th Cir. 2004).
See Maydak v. Dep't of Educ., 150 F. App'x 136, 138 (3d Cir. 2005) (affirming district
court's dismissal of plaintiff's FOIA suit under "fugitive disentitlement doctrine" because
"there was enough of a connection between Maydak's fugitive status and his FOIA case to
justify application of the doctrine" (citing Ortega-Rodriguez v. United States, 507 U.S. 234,
246-49 (1993) (concluding that "absent some connection between a defendant's fugitive
status and his appeal, as provided when a defendant is at large during 'the ongoing appellate
process,' the justifications advanced for dismissal of fugitives' pending appeals generally will
not apply") (citation omitted))); cf. Lazaridis v. DOJ, 713 F. Supp. 2d 64, 69 (D.D.C. May 26,
2010) (denying agency's motion to dismiss based on fugitive disentitlement doctrine where
"DOJ has not established the requisite connection between [plaintiff's] fugitive status and
these proceedings"); Shannahan v. IRS, No. 08-542, 2009 U.S. Dist. LEXIS 52147, at *43-44
(W.D. Wa. Apr. 27, 2009) (declining to dismiss plaintiff's FOIA case under fugitive
disentitlement doctrine without reviewing agency's Vaughn Index and filings), summ. j.
granted in part, 2009 U.S. Dist. LEXIS 99666 (W.D. Wa. 2009).
194

See Sinito v. DOJ, 176 F.3d 512, 515-16 (D.C. Cir. 1999) (finding that FOIA cause of action
survives death of original requester, but restricting substitution of parties to successor or
representative of deceased, pursuant to Rule 25 of Federal Rules of Civil Procedure); D'Aleo
v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS 3884, at *2-4 (D.D.C. Mar. 27,
1991) (appointing deceased plaintiff's sister, who was executrix of his estate, as new
plaintiff). But cf. Hayles v. DOJ, No. H-79-1599, slip op. at 3 (S.D. Tex. Nov. 2, 1982)
(dismissing case upon death of plaintiff when no timely motion for substitution was filed).
195

See New Hampshire v. Maine, 532 U.S. 742, 748 (2001) (defining claim preclusion as
"the effect of a prior judgment in foreclosing successive litigation of the very same claim,
whether or not relitigation of the claim raises the same issues as the earlier suit") (non-FOIA
case).
196

See Schwarz v. Nat'l Inst. of Corr., 161 F.3d 18, 18 (10th Cir. 1998) (affirming dismissal of
case in accordance with doctrine of res judicata because, despite plaintiff's argument to the
contrary, prior action involved same parties and same claims) (unpublished table decision);
Wrenn v. Shalala, No. 94-5198, 1995 WL 225234, at *1 (D.C. Cir. Mar. 8, 1995) (affirming
dismissal of requests that were subject of plaintiff's previous litigation, but reversing
dismissal on "claims that were not and could not have been litigated in that prior action");
Hanner v. Stone, 1 F.3d 1240, 1240 (6th Cir. 1993) (holding that under doctrine of res
197

72

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

judicata does not bar a plaintiff from filing a lawsuit under the FOIA for records that were
previously at issue in a non-FOIA case. 198 In addition, res judicata generally does not
apply where there has been a change in the factual circumstances or legal principles
pertinent to the lawsuit. 199
judicata, "a final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in a prior action") (unpublished
table decision) (emphasis added); NTEU v. IRS, 765 F.2d 1174, 1177 (D.C. Cir. 1985)
(refusing to consider successive FOIA suits for documents that were "identical except for the
year involved"); Gonzalez-Lora v. DOJ, 169 F. Supp. 3d 46, 52 (D.D.C. 2016) (finding that
"[p]laintiff cannot now relitigate the same cause of action or the issue of the DEA's
compliance with the FOIA with respect to his 2000 FOIA request"); Pickering-George v.
DEA Registration Unit, No. 09-2184, 2009 WL 4031223, at *1 (D.D.C. Nov. 19, 2009)
(holding that plaintiff's claim is barred by doctrine of res judicata where court previously
ruled against him for failure to exhaust administrative remedies in claim based on same
facts); Kemp v. Grippen, No. 06-0076, 2007 WL 870123, at *6-8 (E.D. Wis. Mar. 20, 2007)
(holding that plaintiff's FOIA and Privacy Act lawsuit was barred by res judicata because
previous case involved same claims and same parties); Lane v. DOJ, No. 02-06555, 2006
WL 1455459, at *6 (E.D.N.Y. May 22, 2006) (holding that res judicata barred plaintiff's
claims against FBI because claims had already been adjudicated and because plaintiff "failed
to take the necessary action to contest that decision"); Tobie v. Wolf, No. 01-3899, 2002 WL
1034061, at *1 (N.D. Cal. May 8, 2002) (finding privity between "officers of the same
government," and therefore dismissing suit, because plaintiff previously litigated same
issues against component of agency named as co-defendant in later suit).
See North v. Walsh, 881 F.2d 1088, 1093-95 (D.C. Cir. 1989) (deciding that claim for
records under FOIA was not barred by prior discovery prohibition for same records in
criminal case in which FOIA claim could not have been interposed); see also Lopez v. Huff,
508 F. Supp. 2d 71, 75-76 (D.D.C. 2007) (determining that res judicata does not apply where
plaintiff failed to raise Privacy Act claim in previous FOIA action involving same records,
because the two statutes create "distinct causes of action").
198

See, e.g., Negley v. FBI, 169 F. App'x 591, 594 (D.C. Cir. 2006) (holding that res judicata
was inapplicable because both lawsuits -- one to obtain records from Sacramento office and
other to obtain records from San Francisco office -- did not involve same "nucleus of facts";
declaring further that "FOIA does not limit a party to a single request, and because the
records maintained by an FBI office may change over time, a renewal of a previous request
inevitably raises new factual questions"); Croskey v. U.S. Office of Special Counsel, 132 F.3d
1480, 1480 (D.C. Cir. 1997) (finding res judicata inapplicable because document was not in
existence when earlier litigation was brought) (unpublished table decision); Hanner, 983
F.2d at 1066 (determining that present claim was not precluded under doctrine of res
judicata when appellate court had previously adjudicated claim that was similar, but
involved different issue); ACLU v. DOJ, 321 F. Supp. 2d 24, 34 (D.D.C. 2004) (finding res
judicata inapplicable where changed circumstances, namely, Attorney General's decision to
declassify records in question, altered legal issues surrounding plaintiff's FOIA request);
Wolfe v. Froehlke, 358 F. Supp. 1318, 1319 (D.D.C. 1973) (stating that lawsuit was not
barred where national security status had changed), aff'd, 510 F.2d 654 (D.C. Cir. 1974). But
see Primorac v. CIA, 277 F. Supp. 2d 117, 120 (D.D.C. 2003) (dismissing case on basis of
statute of limitations but notingres judicata would have otherwise barred plaintiff's claim
199

73

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

When parallel FOIA suits are brought by the same party for the same records,
dismissal has been found appropriate by operation of the "first-filed" or "first-in time"
rule. 200 This rule holds that generally "'[w]here there are two competing lawsuits, the first
suit should have priority.'" 201 Although both rules advance the goals of minimizing
redundant litigation and conserving judicial resources, the "first-filed" rule differs from
res judicata because, in the latter, a case involving the same parties already has been
decided, whereas in the former, the cases are still pending. 202
Collateral estoppel, or "issue preclusion," which precludes a party from litigating
issues that have been previously adjudicated, has also been found to foreclose further
consideration of a FOIA suit. 203 For example, if an agency's search for records already
because automatic declassification section of Executive Order 12,958 was unavailable to him
in previous lawsuit for same records and fact that it was still unavailable because it was not
yet effective); Bernson v. ICC, 635 F. Supp. 369, 371 (D. Mass. 1986) (refusing to accept
argument that changed circumstances rendered inapplicable previous decision affirming
invocation of FOIA exemption, and dismissing claim based on res judicata).
See McHale v. FBI, No. 99-1628, slip op. at 8-9 (D.D.C. Nov. 7, 2000) (dismissing
"essentially duplicative action").
200

Employers Ins. v. Fox Entm't Grp., Inc., 522 F.3d 271, 275 (2d Cir. 2008) (quoting First
Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 79, 79 (2d Cir. 1989)) (non-FOIA cases); see
UtahAmerican Energy, Inc. v. U.S. Dep't of Labor, 685 F.3d 1118, 1123-25 (D.C. Cir. 2012)
(reversing district court's decision and concluding that, pursuant to first-in time rule,
district court abused its discretion where it ordered government to release records that are
subject of separate FOIA litigation pending before another district court judge).
201

See UtahAmerican Energy, Inc., 685 F.3d at 1124 (noting that "[t]he rationale for
allowing the first court to proceed to its disposition" is that court "should not expend
judicial resources – and potentially produce contradictory decisions – by allowing the same
FOIA plaintiff multiple bites at the apple"); Employers Ins., 522 F.3d at 275 (explaining that
first-filed rule "'embodies considerations of judicial administration and conservation of
resources' by avoiding duplicative litigation and honoring the plaintiff's choice of forum"
(quoting First Nat'l Bank, 878 F.2d at 80) (non-FOIA case)).
202

See Martin v. DOJ, 488 F.3d 446, 454 (D.C. Cir. 2007) (defining elements of collateral
estoppel: "'[1], the same issue now being raised must have been contested by the parties and
submitted for judicial determination in the prior case [; 2], the issue must have been
actually and necessarily determined by a court of competent jurisdiction [; and 3] preclusion
in the second case must not work a basic unfairness to the party bound by the first
determination'" (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir.
1992))); Church of Scientology v. Dep't of the Army, 611 F.2d 738, 750-51 (9th Cir. 1980)
(declaring that complete identity of plaintiff and document at issue precludes relitigation),
overruled on other grounds, Animal Legal Def. Fund v. FDA, 836 F.3d 897 (9th Cir. 2016);
cf. Cotton v. Heyman, 63 F.3d 1115, 1118 nn.1-2 (D.C. Cir. 1995) (holding that doctrine of
direct estoppel, which precludes relitigating issue finally decided in "separate proceeding"
203

74

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

has been found to be adequate, a plaintiff is precluded from challenging the sufficiency of
that same search in a subsequent action. 204 Similarly, FOIA plaintiffs have been
precluded from challenging an agency's disclosure determinations or other matters that
have already been litigated. 205 Collateral estoppel has not been applied in the FOIA
context in those instances where there is not necessarily an expressed or implied legal
relationship between the plaintiff in the first action and the plaintiff in the successive
suit. 206 As with the doctrine of res judicata, collateral estoppel has been found to not be
within same suit, prevented Smithsonian Institution from challenging district court
determination that it is subject to FOIA in connection with appeal from award of attorney
fees; however, "Smithsonian is free to relitigate the issue against another party in a separate
proceeding"). But see North, 881 F.2d at 1093-95 (finding issue preclusion inapplicable
when exemption issues raised in FOIA action differ from relevancy issues raised in prior
action for discovery access to same records); Hall v. CIA, No. 04-00814, 2005 WL 850379,
at *3 (D.D.C. Apr. 13, 2005) (holding doctrine of collateral estoppel inapplicable where
plaintiff previously challenged adequacy of search and exemption's validity but in instant
case, by contrast, sought immediate production of documents and reduction or waiver of
fees).
See, e.g., Allnutt v. DOJ, 99 F. Supp. 2d 673, 677 (D. Md. 2000) (refusing, "[i]n accord
with basic res judicata principles," to reconsider adequacy of search issue that was decided
by another court), aff'd per curiam sub nom. Allnut v. Handler, 8 F. App'x 225 (4th Cir.
2001).
204

See Martin v. DOJ, 488 F.3d 446, 454-55 (D.C. Cir. 2007) (holding that plaintiff is
collaterally estopped from challenging FDIC's withholding of report because issue was
contested in prior case, which was decided by court of competent jurisdiction, and where
plaintiff had "ample opportunity to have his challenge heard and [there were] no
circumstances sufficient to exempt him from rules of preclusion"); Hall, 668 F. Supp. 2d at
179 (reiterating that, consistent with an earlier ruling in this case, collateral estoppel bars
plaintiffs "from arguing that the Senate Committee's records are agency records").
205

See Taylor v. Sturgell, 553 U.S. 880, 895-905 (2008) (disapproving theory of "virtual
representation," whereby person could be bound by prior judgment if he was adequately
represented by party to earlier proceeding, in favor of traditional notions of nonparty
preclusion); Favish v. Off. of Indep. Counsel, 217 F.3d 1168, 1171 (9th Cir. 2000) (refusing to
find that attorney who represented plaintiff in previous case was precluded from relitigating
releasability of death-scene photographs of former Deputy White House Counsel, because
identity of interests was viewed by second appellate court as only "an abstract interest in
enforcement of FOIA") (internal quotations omitted), rev'd on other grounds sub nom.
NARA v. Favish, 541 U.S. 157 (2004); Nielsen v. U.S. Bureau of Land Mgmt., 252 F.R.D.
499, 511 (D. Minn. 2008) (concluding that "defendants are not entitled to summary
judgment based on the doctrines of res judicata or collateral estoppel" where there was "no
basis for finding [current plaintiff] was acting in a representative capacity for plaintiff in the
[prior] litigation"); cf. Doe v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (permitting thirdparty intervention in reverse FOIA suit in order to avoid collateral estoppel effect of decision
potentially adverse to third-party interests); Robertson v. DOD, 402 F. Supp. 1342, 1347
(D.D.C. 1973) (concluding that private citizen's interest in subsequent FOIA action was not
206

75

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

applicable to a subsequent lawsuit if there is an intervening, material change in the law
or the facts. 207
Pattern-or-Practice Claims
The Court of Appeals for the District of Columbia Circuit has held that "even
though a party may have obtained relief as to a specific request under the FOIA, this will
not moot a claim that an agency policy or practice will impair the party's lawful access to
information in the future." 208 Courts have held that in order to demonstrate a pattern or

protected by government in prior reverse FOIA suit over same documents, because interests
were not "congruent").
See, e.g., Croskey, 132 F.3d at 1480 (concluding that access to investigator's notes and
impressions of witnesses adjudicated in prior proceeding was "sufficiently different" from
witness statements themselves to bar application of collateral estoppel) (unpublished table
decision); Minnis v. USDA, 737 F.2d 784, 786 n.1 (9th Cir. 1984) (declaring that "an
intervening Supreme Court decision clarifying an issue that had been uncertain in the lower
courts defeats collateral estoppel"), cert. denied, 471 U.S. 1053 (1985); McQueen v. United
States, 264 F. Supp. 2d 502, 513-14 (S.D. Tex. 2003) (refusing to find that collateral
estoppel prevented plaintiff from litigating "requests for information that may not be
essentially identical," despite agency's argument that the contested documents were "the
same kinds . . . but for different years"), aff'd, 100 F. App'x 964 (5th Cir. 2004); see also
Horowitz v. Tschetter, No. 06-5020, 2007 WL 1381608, at *4-5 (N.D. Cal. May 8, 2007)
(holding that a finding in FOIA action regarding the nature of certain records did not have
preclusive effect on non-FOIA litigation because the cases concerned different issues of fact
and law).
207

Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) ("The fact that
the practice at issue is informal, rather than articulated in regulations or an official
statement of policy, is irrelevant to determining whether a challenge to that policy or
practice is moot."); see also Muckrock, LLC v. CIA, 300 F. Supp. 3d 108, 130-31 (D.D.C.
2018) (rejecting agency's argument that "plaintiff needs to point to a regulation that
establishes the policy, or that the agency must concede the policy's existence as a threshold .
. ." to bring pattern or practice claim); Brown v. U.S. Customs & Border Protection, 132 F.
Supp. 3d 1170, 1172 (N.D. Cal. 2015) (finding plaintiffs do not need to "name a specific
policy at the pleading stage to maintain a FOIA 'pattern or practice' claim"); Muttit v. U.S.
Cent. Command, 813 F. Supp. 2d 221, 230 (D.D.C. 2011) (holding that "a formal policy or
regulation is not required to sustain a claim for relief enjoining a pattern or practice of
violating FOIA"); see also; cf. Scudder v. CIA, 281 F. Supp. 3d 124, 129 (D.D.C. 2017)
(dismissing pattern or practice claim because plaintiffs "have not alleged any instance where
the Defendant was found to have violated FOIA – or even a specific instance where the
Defendant allegedly violated the FOIA – by failing to provide the requested information
electronically where readily producible").
208

76

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

practice and adequately state a claim, the requester must allege more than one instance
of unlawful behavior. 209
While often dismissed for lack of standing or insuffiencient showing, pattern-orpractice claims have been brought for various types of alleged FOIA violations, including:
(1) unreasonable delay; 210
(2) failing to provide an estimated date of completion; 211

Hajro v. U.S. Citizenship & Immigration Serv., 811 F.3d 1086, 1104 (9th Cir. 2015)
(remanding for determination as to whether "the agency's FOIA violation was not merely an
isolated incident" and holding that plaintiff "can provide evidence that he has been
subjected to a FOIA violation more than once . . . or a plaintiff can provide the court with
affidavits of people similarly situated to the plaintiff who were also harmed by the pattern or
practice"); People for the Ethical Treatment of Animals, Inc. v. Dep't of Agric., 285 F. Supp.
3d 307, 313 (D.D.C. 2018) (dismissing declaratory relief request because complaint "does
not challenge any ongoing agency policy . . . it has always challenged a discrete agency
action "); Cause of Action Inst. v. Eggleston, 244 F. Supp. 3d 63, 72 (D.D.C. 2016) ("Plaintiff
cannot state a 'policy or practice' claim based on a single incident."); Muttit, 813 F. Supp. 2d
at 230 (finding plaintiff stated claim against Department of State by alleging ten instances
of failure to provide estimated dates of completion, but failed to state pattern and practice
claim against Department of the Treasury by alleging single FOIA violation); Nkihtaqmikon
v. BIA, 672 F. Supp. 2d 154, 170-71 (D. Me. 2009) (holding that "to draw general
conclusions about . . . agency-wide patterns and practices from its handling of one case is a
step too far"); Navigators Ins. Co. v. DOJ, 155 F. Supp. 3d 157, 168 (D. Conn. 2016) (refusing
to draw general conclusions about agency-wide practices from its handling of one case).
209

See Cmty. Ass'n for Restoration of the Env't, Inc., v. EPA, 36 F. Supp. 3d 1039, 1049-54
(E.D. Wa. 2014) (finding that "[p]laintiffs may bring a claim alleging a pattern and practice
of unreasonable delay in responding to FOIA requests," but ultimately finding that single
violation of a "delay of only a few days" was insufficient); Am. Ctr. for Law & Justice v. DOS,
249 F. Supp. 3d 275, 283 (D.D.C. 2017) (denying pattern or practice claim because "while
tardiness would violate FOIA, it only becomes actionable when 'some policy or practice'
undergirds it"); Cause of Action Inst., 244 F. Supp. 3d at 72 (noting that "delay alone, even
reported delay, is not the type of illegal policy or practice that is actionable"); cf. Crt. for
Study of Serv. v. HHS, 874 F.3d 287, 293 (D.C. Cir. 2017) (determining district court erred
in granting injunction to prevent future delays citing parties' "agreement to a forwardlooking procedure" of responding to similar future requests).
210

See Muttit, 813 F. Supp. 2d at 230 (concluding that "based on the multiple alleged
instances in which State failed to provide the plaintiff with an estimated completion date,
the plaintiff has stated a viable pattern and practice claim") (claim dismissed by joint
stipulation).
211

77

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(3) invoking FOIA exemptions at the file level; 212
(4) refusing to disclose documents until a suit is filed; 213
(5) refusing to disclose documents until an administrative appeal is filed; 214
(6) failure to promulgate a final regulation related to expedited processing; 215
(7) denying FOIA requests for certain types of data under Exemption 3; 216
(8) improperly denying FOIA fee waiver requests; 217
(9) categorically refusing to recognize assignment of rights in FOIA cases; 218
(10) requiring commitments to pay before conducting two free hours of search; 219
See Tipograph v. DOJ, 146 F. Supp. 3d 169, 174-75 (D.D.C. 2015) (recognizing patternor-practice claim that defendant "maintain[s] a policy of invoking [an] exemption at the file
level, rather than at the record level") (dismissed for lack of standing).
212

See Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982) (adjudicating claim that agency had
pattern of delaying release of documents until lawsuits are filed and remanding to district
court to "weigh all the relevant factors and require compliance within a reasonable time").
213

See Payne Enters., Inc., 837 F.2d at 495 (adjudicating pattern-or-practice claim that
agency denied requests for "copies of bid abstracts" until appeal was filed and ultimately
reversing and remanding with instructions to enter declaratory judgment for plaintiff and
grant injunctive relief as appropriate).
214

See Nat'l Whistleblower Ctr. v. HHS, 839 F. Supp. 2d 40, 42 (D.D.C. 2012) (challenging
agency's failure to finalize expedited processing regulations because FOIA requires agencies
to promulgate such regulations) (dismissed for lack of standing).
215

See Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 164 (D.C. Cir.
2012) (holding "practice of restricting disclosure of technical information that did not depict
'critical technology' did not violate FOIA").
216

See Coleman v. DEA, 134 F. Supp. 3d 294, 306(D.D.C. 2015) (requesting injunctive relief
and claiming that agency's "fee waiver denial is part of an unlawful agency pattern or
practice") (dismissed for lack of standing).
217

See Nat'l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 141 (D.D.C. 2013) (finding that
because there is a possibility of assignment in limited circumstances, "a categorical policy of
refusing to recognize assignments violates the FOIA").
218

See, e.g., Nat'l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 84 (D.D.C. 2013) (alleging that
agency maintained policy or practice of requiring commitment to pay applicable fees before
conducting two free hours of search) (dismissed for lack of standing).
219

78

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

(11) refusing to provide records in electronic format; 220
(12) invoking Exemption 3 without proper authorization. 221
The viability of a pattern-0r-practice claim as a separate cause of action under
FOIA remains an unsettled issue. The Courts of Appeals for the District of Columbia 222
and the Ninth Circuit 223 have expressly recognized pattern-or-practice claims under
FOIA. In addition, district courts within the First, 224 Second, 225 Seventh, 226 and Tenth
Circuits, 227 have implicitly recognized the validity of pattern-or-practice claims under

See, e.g., id. (alleging "[defendant] admits that it has a blanket policy of considering
every record 'not readily reproducible in electronic format'") (dismissed for lack of
standing).
220

See, e.g., id. (alleging policy or practice of invoking National Security Act, without proper
authorization from Director of Central Intelligence) (dismissed for lack of standing).
221

See, e.g., Payne Enters., Inc., 837 F.2d at 486 (allowing plaintiff to bring pattern-orpractice claim even after agency response).
222

See, e.g., Hajro, 811 F.3d at 1086 (recognizing pattern-or-practice claim brought under
the FOIA and outlining factors for lower court to consider on remand); Long, 693 F.2d at
907 (same).
223

See, e.g., Nkihtaqmikon, 672 F. Supp. 2d at 170-71 (acknowledging that recognition of
FOIA pattern-or-practice claims is unsettled but even "[a]ssuming the Court is authorized to
issue a declaratory judgment condemning the BIA's pattern or practice of FOIA noncompliance, the evidence here does not warrant such a conclusion").
224

See, e.g., Navigators Ins. Co., 155 F. Supp. 3d at 169 (finding that declaratory judgment
was not warranted because "[p]laintiffs have not alleged a pattern or practice of delay . . .
nor have Plaintiffs claimed they are likely to file another request for documents in the near
future"); Pietrangelo v. U.S. Dep't of the Army, 06-170, 2007 WL 1874190, at *11 (D. Vt.
June 27, 2007) (finding that there was no pattern or practice because "[defendant's] delays
did not evidence bad faith or prolonged delay"), aff'd, 334 F. App'x 358, 360 (2d Cir. 2009)
(affirming district courts grant of summary judgment but acknowledging that the Second
Circuit "has not yet recognized or articulated the inquiry relevant to a pattern or practice
claim in the FOIA context").
225

See, e.g., LAF v. VA, No. 17-5035, 2018 WL 3148109, at *5 (N.D. Ill. June 27, 2018)
(finding case was not moot and plaintiff had standing to bring pattern and practice claim).
226

See, e.g., Liverman v. Office of Inspector Gen., 139 F. App'x 942, 944 (10th Cir. 2005)
(finding that defendant agency did not engage in pattern of unreasonable delay); Smith v.
ICE, 249 F. Supp. 3d 1203, 1210 (D. Colo. 2017) (finding plaintiff had standing to bring
pattern or practice claim); Rocky Mountain Wild, Inc. v. U.S. Forest Serv., No. 15-0127,
227

79

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

FOIA by hearing and adjudicating such claims. A unique feature of pattern-or-practice
claims is that they are not necessarily mooted by an agency's production of documents. 228
(For a further discussion see Litigation Considerations, Mootness and Other Grounds for
Dismissal, above.)
As discussed above, in order to have standing to bring a cause of action under
FOIA, a plaintiff must show that an agency has (1) "improperly," (2) "withheld," (3)
"agency records" from them. 229 However, when a plaintiff seeks prospective declaratory
or injunctive relief, courts have held that "allegations of past harms are insufficient." 230
Rather, in such cases a plaintiff "must show he is suffering an ongoing injury or faces an
immediate threat of [future] injury." 231 In order to adequately plead a "threat of
repetition," a plaintiff must make "more than a nebulous assertion of the existence of a
'policy,'" that violates the FOIA and that plaintiff is "likely to be subjected to the policy
again." 232
Generally, a plaintiff must have another FOIA request pending before the agency
in order to satisfy the future threat of harm element. 233 District courts within the District
2016 WL 362459, at *10-11 (D. Colo. Jan. 29, 2016) (applying law of Courts of Appeals in
District of Columbia and Ninth Circuits).
See Payne Enters., Inc., 837 F.2d at 491 (holding "even though a party may have
obtained relief as to a specific request under the FOIA, this will not moot a claim that an
agency policy or practice will impair the party's lawful access to information in the future").
228

229

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).

Nat'l Sec. Counselors, 931 F. Supp. 2d at 91 (citing Dearth v. Holder, 641 F.3d 499, 501
(D.C. Cir. 2011) (non-FOIA case)); see also Nat'l Whistleblower Ctr., 839 F. Supp. 2d at 4546 (holding plaintiffs lacked standing to bring pattern-or-practice claim because plaintiffs
"have identified no real support for their allegation that they have suffered and will likely in
the future suffer a cognizable injury").
230

Nat'l Sec. Counselors, 931 F. Supp. 2d at 91 (quoting City of Los Angeles v. Lyons, 461
U.S. 95, 105 (1983) (non-FOIA case)). But see Brown, 132 F. Supp. 3d at 1174 (finding that
defendant’s contention "that a pattern and practice claim requires specific allegations of
future harm . . . is bereft of support").
231

Hajro, 811 F.3d at 1103 (holding that plaintiffs must show that "the plaintiff himself has
a sufficient likelihood of future harm by the policy or practice"); see also Gatore v.
DHS, 327
F. Supp. 3d 76, 93-94 (D.D.C. 2018) (finding that plaintiff has standing as plaintiff has
several pending requests and will continue to make future requests likely to be impacted by
alleged policy or practice); Nat'l Whistleblower Ctr., 839 F. Supp. at 45-46 (finding
plaintiff's allegation that agency's final rule "might . . . identify additional circumstances in
which it would grant requests for expedition . . . speculative at best").
232

See Nat'l Sec. Counselors, 931 F. Supp. 2d at 93 (holding that "where FOIA requesters
challenge an alleged ongoing policy or practice and can demonstrate that they have pending
233

80

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

of Columbia have generally held that the requirement to demonstrate a future threat of
harm cannot be supported by a requester's mere intention to file FOIA requests in the
future. 234 However, when a plaintiff's entire business depends upon the filing FOIA
requests, the D.C. Circuit has found that there is sufficient likelihood of future injury to
confer standing. 235
FOIA requests that are likely to implicate that policy or practice, future injury is satisfied");
see also Citizens for Responsibility & Ethics in Wash. v. SEC, 858 F. Supp. 2d 51, 60 (D.D.C.
2012) (noting that "outstanding FOIA requests that involve documents that likely will be
unavailable due to the challenged policy" are sufficient to allege future injury); Citizens for
Responsibility & Ethics in Wash. v. Executive Office of the President, 587 F. Supp. 2d 48,
60-61 (D.D.C. 2008) (holding that, because plaintiffs "each allege that they have FOIA
requests for e-mails currently pending with the [defendant agencies]," their allegations of
future injury were "real and immediate"); Nat'l Sec. Counselors v. CIA, 898 F. Supp. 2d 233,
260-63 (D.D.C. 2012) (holding that plaintiff had standing to pursue policy-or-practice
claims when "it had already submitted fifteen FOIA requests to the CIA since filing the
Complaints" which were "likely to implicate the claimed policies and practices at issue
because the pending and future requests appear to be of the same character as the specific
requests that form the basis of the plaintiff's current claims"); Coleman, 134 F. Supp. 3d at
306 (finding plaintiff lacked standing because he "has not averred that he has a pending
FOIA request"); Gilmore v. DOE, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998) (holding
plaintiff did have standing where he "attested that he has filed another FOIA request with
[defendant]").
See, e.g., Quick v. U.S. Dep't of Commerce, 775 F. Supp. 2d 174, 187 (D.D.C 2001)
(finding plaintiff lacked standing where plaintiff "plan[ned] to file additional FOIA requests
to the [defendant] in the future"); American Historical Ass'n v. NARA, 310 F. Supp. 2d 216,
228 (D.D.C. 2004) (finding no standing where "[p]laintiffs have no outstanding requests for
presidential records"); Citizens for Responsibility & Ethics in Wash. v. DHS, 527 F. Supp. 2d
101, 106 (D.D.C. 2007) (finding plaintiff lacked standing because it failed to allege pending
FOIA request and plaintiff's allegation that "it will continue to use the FOIA" too speculative
and remote). But see Tipograph, 146 F. Supp. 3d 177 ("If a plaintiff does not have a separate
FOIA request pending before the agency that would be subjected to the challenged policy or
practice, then the specificity with which the plaintiff indicates its intent to file future FOIA
requests is crucial.").
234

Newport Aeronautical Sales, 684 F.3d at 164 (finding that plaintiff had standing where it
showed that "its business depends on continually requesting and receiving documents that
the policy permits [defendant] to withhold"); accord Smith, 249 F. Supp. 3d at 1210 (finding
standing where filing FOIA requests for immigration records was "an integral part" of
plaintiff's practice). But see Tipograph, 146 F. Supp. 3d 175 (finding that while plaintiff
could plausibly file requests in the future that could implicate the alleged policy "due to the
nature of [her] work—representing criminal defendants and activists" she had failed to
"establish likely future injury that is both concrete and imminent"); Nat'l Sec. Counselors,
931 F. Supp. 2d at 93-94 (finding insufficient organization's allegation that it "stands to
continue to be harmed . . . as it regularly files FOIA requests with [defendant] and will
continue to do so in the future").
235

81

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Vaughn Index/Declaration
A distinguishing feature of FOIA litigation is that the defendant agency bears the
burden of sustaining its action of withholding records. 236 The most commonly used
device for meeting this burden of proof is the Vaughn Index, fashioned by the Court of
Appeals for the District of Columbia Circuit in a case entitled Vaughn v. Rosen. 237
The Vaughn decision requires agencies to prepare an itemized index, correlating
each withheld document (or portion thereof) with a specific FOIA exemption and the
relevant part of the agency's nondisclosure justification. 238 Such an index allows the trial
court "to make a rational decision [about] whether the withheld material must be
produced without actually viewing the documents themselves . . . [and] to produce a

See 5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017); see also Natural Res. Def. Council v.
NRC, 216 F.3d 1180, 1190 (D.C. Cir. 2000) (explaining that "FOIA itself places the burden
on the agency to sustain the lawfulness of specific withholdings in litigation").
236

484 F.2d 820 (D.C. Cir. 1973); see, e.g., Canning v. DOJ, 848 F. Supp. 1037, 1042 (D.D.C.
1994) ("Agencies are typically permitted to meet [their] heavy burden by 'filing affidavits
describing the material withheld and the manner in which it falls within the exemption
claimed.'" (quoting King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987))).
237

See Vaughn, 484 F.2d at 827 (determining that agency's burden to demonstrate legality
of withholdings with adequate specificity "could be achieved by formulating a system of
itemizing and indexing that would correlate statements made in the [agency's] refusal
justification with the actual portions of the document"); accord King, 830 F.2d at 217.
238

82

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

record that will render [its] decision capable of meaningful review on appeal." 239 It also
helps to "create balance between the parties." 240
If a court finds that an index is not sufficiently detailed, it will often require one
that is more detailed. 241 Alternatively, if a Vaughn Index is inadequate to support
King, 830 F.2d at 219; see, e.g., Maine v. U.S. Dep't of the Interior, 298 F.3d 60, 65 (1st
Cir. 2002) (noting that Vaughn Index allows court to determine if use of exemptions are
"justified"); Rugiero v. DOJ, 257 F.3d 534, 544 (6th Cir. 2001) (explaining that Vaughn
Index enables court to make "independent assessment" of agency's exemption claims),;
Queen v. Gonzales, No. 96-1387, 2005 WL 3204160, at *2 (D.D.C. Nov. 15, 2005)
(explaining that "[a]gency affidavits can satisfy Vaughn's requirements" if they are detailed
sufficiently to permit de novo review); Campaign for Responsible Transplantation v. FDA,
219 F. Supp. 2d 106, 116 (D.D.C. 2002) ("Without a proper Vaughn index, a requester
cannot argue effectively for disclosure and this court cannot rule effectively."); Cucci v. DEA,
871 F. Supp. 508, 514 (D.D.C. 1994) ("An adequate Vaughn index facilitates the trial court's
duty of ruling on the applicability of certain invoked FOIA exemptions, gives the requester
as much information as possible that he may use to present his case to the trial court and
thus enables the adversary system to operate."); cf. Moye, O'Brien, O'Rourke, Hogan &
Pickert v. Nat'l R.R. Passenger Corp., No. 02-126, 2003 WL 21146674, at *6 (M.D. Fla. May
13, 2003) ("'Vaughn indexes are most useful in cases involving thousands of pages of
documents.'" (quoting Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993))), rev'd &
remanded on other grounds, 116 F. App'x 251 (11th Cir. 2004) (unpublished table decision).
239

Long v. DOJ, 10 F. Supp. 2d 205, 209 (N.D.N.Y. 1998); see, e.g., Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (noting that agency would have "a nearly
impregnable defensive position" but for its burden to justify nondisclosure); Kozacky &
Weitzel, P.C. v. United States, No. 07-2246, 2008 WL 2188457, at *6 (N.D. Ill. Apr. 10,
2008) ("[D]ue to the inadequacy of the affidavits submitted by the IRS, a Vaughn Index is
required to enable [plaintiff] to argue the case adequately and to permit the Court to
determine . . . whether the documents are appropriately withheld under the claimed
exemptions."); Odle v. DOJ, No. 05-2711, 2006 WL 1344813, at *5 (N.D. Cal. May 17, 2006)
(observing that Vaughn Index "afford[s] the person making a FOIA request a meaningful
opportunity to contest the soundness of withholding"); Edmonds v. FBI, 272 F. Supp. 2d 35,
44 (D.D.C. 2003) (explaining that affidavits must "'strive to correct the asymmetrical
distribution of knowledge that characterizes FOIA litigation'" (quoting King, 830 F.2d at
218)); cf. Fiduccia v. DOJ, 185 F.3d 1035, 1042 (9th Cir. 1999) (pointing out that Vaughn
Index is not required where it is unnecessary to be particularly concerned about adversarial
balance). But see Solers, Inc. v. IRS, 827 F.3d 323, 328 (4th Cir. 2016) ("A Vaughn index is
'designed to enable the district court to rule on a privilege without having to review the
document itself' and thus functions as a 'surrogate for the production of documents for in
camera review.'" (quoting Ethy; Corp. v. EPA, 25 F.3d 1241, 1249 (4th Cir. 1994))).
240

See Davin v. DOJ, 60 F.3d 1043, 1065 (3d Cir. 1995) (remanding case for further
proceedings and suggesting that another, more detailed Vaughn Index be required); Church
of Scientology Int'l v. DOJ, 30 F.3d 224, 230-40 (1st Cir. 1994) (same); Wiener v. FBI, 943
F.2d 972, 979 (9th Cir. 1991) (same), cert. denied, 505 U.S. 1212 (1992); Isiwele v. HHS, 85
F. Supp. 3d 337, 356 (D.D.C. 2015) (noting that when "the record includes deficient
declarations, 'the courts generally will request that the agency supplement its supporting
241

83

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

withholding, courts have sometimes utilized in camera review of the withheld material. 242
In a broad range of contexts, most courts have refused to require agencies to file public
declarations'" (quoting Judicial Watch v. DOJ, 185 F. Supp. 2d 54, 65 (D.D.C. 2002)));
Comptel v. FCC, 910 F. Supp. 2d 100, 127 (D.D.C. 2012) (determining Vaughn Index
inadequate and stating that agency "cannot rely on bare and conclusory assertions to
demonstrate" that information was properly redacted and ordering FCC to submit revised
Vaughn); McGehee v. DOJ, 800 F. Supp. 2d 220, 238 (D.D.C. 2011) (finding Vaughn
insufficiently detailed because it failed to provide information on missing pages and
numerous redactions and requiring agency to provide updated Vaughn); Citizens for
Responsibility & Ethics in Wash. v. DHS, 648 F. Supp. 2d 152, 157-58 (D.D.C. 2009)
(declaring agency's Vaughn submission deficient because it was "vague, conclusory and
inadequate" because there was "a dearth of 'reasonably specific detail'" and suggesting that
agency supplement Vaughn); Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d
749, 771 (E.D. Pa. Aug. 7, 2008) (holding that agency must amend Vaughn Index because
"descriptions are too broad, and the reasons for withholding merely recite statutory
language"); Hiken v. DOD, 521 F. Supp. 2d 1047, 1055 (N.D. Cal. 2007) (ordering agency to
revise Vaughn Index in order to tie disclosure of information to specific harms); Keeper of
the Mountains Found. v. DOJ, 514 F. Supp. 2d 837, 848 (S.D. W. Va. 2007) (directing
parties to confer as to exclusion of certain documents from Vaughn Index and, to extent that
disagreement remains, ordering agency to file supplemental Vaughn Index explaining
exclusion of responsive records); Coleman v. FBI, 972 F. Supp. 5, 9 (D.D.C. 1997) (rejecting
narratives on "deleted page sheets" that apply to multiple documents and requiring agency
to redo index to "inform the court as to the contents of individual documents and the
applicability of the various Exemptions").
See, e.g., Solers, Inc., 827 F.3d at 328 (agreeing with district court that in camera review
of records mooted any potential inadequacies of Vaughn Index); Lion Raisins Inc. v. USDA,
354 F.3d 1072, 1082 (9th Cir. 2004) (acknowledging that "[u]nder certain limited
circumstances, we have endorsed the use of in camera review of government affidavits as
the basis for FOIA decisions"); Maynard v. CIA, 986 F.2d 547, 557 (1st Cir. 1993) ("Where,
as here, the agency, for good reason, does not furnish publicly the kind of detail required for
a satisfactory Vaughn index, a district court may review the documents in camera."); Simon
v. DOJ, 980 F.2d 782, 784 (D.C. Cir. 1992) (holding that despite inadequacy of Vaughn
Index, in camera review, "although admittedly imperfect . . . is the best way to [en]sure both
that the agency is entitled to the exemption it claims and that the confidential source is
protected"); see also Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir.
1988) ("[W]here a trial court properly reviewed contested documents in camera, an
adequate factual basis for the decision exists."); High Country Citizens Alliance v. Clarke,
No. 04-CV-00749, 2005 WL 2453955, at *8 (D. Colo. Sept. 29, 2005) (finding in camera
review necessary due to insufficient descriptions of withheld documents in Vaughn Index);
Twist v. Ashcroft, 329 F. Supp. 2d 50, 54 (D.D.C. 2004) ("[I]n camera review of the withheld
documents (or of the portions withheld) is proper if the agency affidavits are insufficiently
detailed to permit review of exemption claims[.]"), aff'd per curiam on other grounds, 171 F.
App'x 855 (D.C. Cir. 2004); Hornbostel v. U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30
(D.D.C. 2003) (commenting that while Vaughn Index description of documents was
"slightly ambiguous," correctness of exemption claims was demonstrated through in camera
examination), aff'd, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004); cf. Judicial
Watch, Inc. v. Dep't of the Army, 402 F. Supp. 2d 241, 249 & n.6 (D.D.C. 2005) (ordering in
242

84

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Vaughn Indices that are so detailed as to reveal sensitive information the withholding of
which is the very issue in the litigation. 243 Therefore, in camera affidavits are frequently
camera inspection to review accuracy of agency's descriptions of withheld information after
inadvertent disclosure revealed existence of discrepancies and inaccuracies in Vaughn
Index), summary judgment granted in part, 435 F. Supp. 2d 81 (D.D.C. 2006); Fla.
Immigrant Advocacy Ctr. v. NSA, 380 F. Supp. 2d 1332, 1338 (S.D. Fla. 2005) (conducting
in camera inspection "to satisfy an 'uneasiness' or 'doubt' that the exemption claim may be
overbroad given the nature of the Plaintiff's arguments"); Hall & Assocs. v. EPA, 846 F.
Supp. 2d 231, 246 (D.D.C. 2012) (denying plaintiff's request for in camera review where
"Vaughn index and accompanying declaration are sufficiently detailed to permit a
meaningful review of the Agency's exemption claims");. But see Wiener, 943 F.2d at 979
(suggesting that "[i]n camera review of the withheld documents by the [district] court is not
an acceptable substitute for an adequate Vaughn index").
See, e.g., Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) ("The risk to intelligence
sources and methods comes from the details that would appear in a Vaughn index"); Lion
Raisins, 354 F.3d at 1084 (vouching that agency need not "disclose facts that would
undermine the very purpose of its withholding"); Maricopa Audubon Soc'y v. U.S. Forest
Serv., 108 F.3d 1089, 1093 (9th Cir. 1997) ("Indeed we doubt that the agency could have
introduced further proof without revealing the actual contents of the withheld materials.");
Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) ("The description and
explanation the agency offers should reveal as much detail as possible as to the nature of the
document without actually disclosing information that deserves protection."); Maynard,
986 F.2d at 557 (emphasizing that although public declaration "lacked specifics, a more
detailed affidavit could have revealed the very intelligence sources or methods that the CIA
wished to keep secret"); Lewis v. IRS, 823 F.2d 375, 380 (9th Cir. 1987) ("[A] Vaughn index
of the documents here would defeat the purpose of Exemption 7(A). It would aid [the
requester] in discovering the exact nature of the documents supporting the government's
case against him earlier than he otherwise would or should."); Curran v. DOJ, 813 F.2d 473,
476 (1st Cir. 1987) (agency should not be forced "to resort to just the sort of precise
description which would itself compromise the exemption"); Church of Scientology v. U.S.
Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1980) (recognizing that "the government need
not specify its objections in such detail as to compromise the secrecy of the information"),
overruled on other grounds, 836 F.3d 897 (9th Cir. 2016); Am. Mgmt. Servs., LLC v. Dept.
of Army, 842 F. Supp. 2d 859, 874 (E.D. Va. 2012) (finding that "descriptive information
need not be 'so detailed that it would serve to undermine the important deliberative
processes protected by Exemption 5'" (quoting Rein v. U.S. Patent & Trademark Office, 553
F.3d 353, at 368-69 (4th Cir. 2009))), aff'd, 703 F.3 724 (4th Cir. 2013); Baez v. FBI, 443 F.
Supp. 2d 717, 723 (E.D. Pa 2006) ("[I]t is hard to see how the government could have
provided . . . more information about the redactions without disclosing the redacted
information itself."); Odle, 2006 WL 1344813, at *9 (explaining that Vaughn Index must
"disclose 'as much as possible without thwarting the claimed exemption's purposes'"
(quoting Wiener, 943 F.2d at 977)); Herrick's Newsletter v. USPB, No. 04-00377, 2005 WL
3274073, at *4 (D.D.C. Sept. 22, 2005) ("The Court will not require an agency to describe
the withheld material with such specificity as to result in the constructive equivalent of
actual disclosure."); Berman v. CIA, 378 F. Supp. 2d 1209, 1215-16 (E.D. Cal. 2005)
(recognizing that because CIA's declaration "is part of the public record," it must of
243

85

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

utilized in Exemption 1 cases when public descriptions of responsive documents would
compromise national security. 244 (For a further discussion of this point, see Litigation
Considerations, In Camera Inspection, below.) This important principle also has been
applied to other FOIA exemptions, for example in Exemption 5 cases, 245 in Exemption

necessity support the withholding of intelligence sources and methods through the use of
"terms that are general"), aff'd on other grounds, 501 F.3d 1136 (9th Cir. 2007).
See, e.g., New York Times Co. v. DOJ, 756 F.3d 100, 122 (2d Cir. 2014) (ordering agency
to submit classified Vaughn indices to lower court, for in camera review, on remand); Doyle
v. FBI, 722 F.2d 554, 556 (9th Cir. 1983) (approving use of in camera affidavits in certain
cases involving national security exemption); Mobley v. DOJ, 870 F. Supp. 2d 61, 69 (D.D.C.
2012) (holding that after in camera review, agency's (b)(1) withholdings were proper and
"considerations of national security appropriately preclude the [agency] from publicly
releasing additional information regarding the documents"); Peltier v. FBI, No. 03-905,
2006 WL 462096, at *1 (W.D.N.Y Feb. 24, 2006) (allowing submission of in camera Vaughn
Index to justify withholding pursuant to Exemption 1), aff'd, 218 F. App'x 30 (2d Cir. 2007);
Edmonds, 272 F. Supp. 2d at 46 (approving use of in camera affidavit because "extensive
public justification would threaten to reveal the very information for which a FOIA
exemption is claimed"). But cf. Peltier v. FBI, No. 03- 905, 2005 WL 735964, at *11
(W.D.N.Y. Mar. 31, 2005) (acknowledging that "in camera review is particularly frowned
upon in the context of Exemption 1 withholdings . . . [h]owever, Defendant's insufficient
Vaughn index leaves this Court with no choice but to conduct further review"), renewed
mot. for summary judgment granted, 2006 WL 462096, at *2 (W.D.N.Y. Feb. 24, 2006),
aff'd, 218 F. App'x 30 (2d Cir. 2007).
244

See, e.g., Ethyl Corp. v. EPA, 25 F.3d 1241, 1250 (4th Cir. 1994) ("If the district court is
satisfied that the EPA cannot describe documents in more detail without breaching a
properly asserted confidentiality, then the court is still left with the mechanism provided by
the statute -- to conduct an in camera review of the documents."); Wolfe v. HHS, 839 F.2d
768, 771 n.3 (D.C. Cir. 1988) (en banc) ("Where the index itself would reveal significant
aspects of the deliberative process, this court has not hesitated to limit consideration of the
Vaughn index to in camera inspection."); Am. Mgmt. Servs., LLC, 842 F. Supp. 2d at 874
(finding in camera inspection appropriate for records withheld under deliberative process
privilege because any additional detail in publicly filed Vaughn Index could undermine
deliberative processes protected by Exemption 5).
245

86

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

7(A) cases, 246 in Exemption 7(C) cases, 247 and in Exemption 7(D) cases. 248 However, in
cases in which explanations for withholding are presented in camera, courts have found
that the agency is obliged to ensure that it first has set forth on the public record an
explanation that is as complete as possible without compromising the sensitive
information. 249 (See the further discussion of this point under Litigation Considerations,
In Camera Inspection, below.)

See, e.g., Int'l Union of Elevator Constructors Local 2 v. DOL, 747 F. Supp. 2d 976, 982
(N.D. Ill 2010) (denying motion for production of Vaughn Index because it would
"compromise the [agency's] pending investigation"); Dickerson v. DOJ, No. 90-60045, 1991
WL 337422, at *3 (E.D. Mich. July 31, 1991) (same), aff'd, 992 F.2d 1426 (6th Cir. 1993);
Alyeska Pipeline Serv. v. EPA, No. 86-2176, 1987 WL 17071, at *3 (D.D.C. Sept. 9, 1987)
("[R]equiring a Vaughn index in this matter will result in exactly the kind of harm to
defendant's law enforcement proceedings which it is trying to avoid under exemption
7(A)."), aff'd on other grounds, 856 F.2d 309 (D.C. Cir. 1988).
246

See Carpenter v. DOJ, 470 F.3d 434, 442 (1st Cir. 2006) (explaining that, in instant
Exemption 7(C) case, "[e]ven if [plaintiff] had asserted a valid public interest, the
appropriate method for a detailed evaluation of the competing interests would have been
through an in camera review because a standard Vaughn index might result in disclosure of
the very information that the government attempted to protect"); Canning v. DOJ, No. 012215, slip op. at 6 (D.D.C. May 27, 2005) (permitting agency to file portion of declaration in
camera in order to avoid compromising Exemption 7(C) position).
247

See, e.g., DOJ v. Landano, 508 U.S. 165, 180 (1993) (ruling that government can meet its
burden with in camera affidavits in order to avoid identification of sources in Exemption
7(D) withholdings); Church of Scientology, 30 F.3d at 239 n.23 (same); Keys v. DOJ, 830
F.2d 337, 349 (D.C. Cir. 1987) (announcing that there is no requirement to produce Vaughn
Index in "degree of detail that would reveal precisely the information that the agency claims
it is entitled to withhold"); Doe v. DOJ, 790 F. Supp. 17, 21 (D.D.C. 1992) ("[A] meaningful
description beyond that provided by the Vaughn code utilized in this case would probably
lead to disclosure of the identity of sources.").
248

See Lion Raisins, 354 F.3d at 1084 (overturning district court decision that relied on in
camera review of sealed declaration, and remanding for creation of Vaughn Index);
Armstrong v. Executive Office of the President, 97 F.3d 575, 580-81 (D.C. Cir. 1996) ("Case
law in this Circuit is clear that when a district court uses an in camera affidavit, it must both
make its reasons for doing so clear and make as much as possible of the in camera
submission available to the opposing party." (citing Lykins v. DOJ, 725 F.2d 1455, 1465
(D.C. Cir. 1984))); Philippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976); cf. Al Najjar v.
Ashcroft, No. 00-1472, slip op. at 7 (D.D.C. July 22, 2003) (rejecting agencies' overly broad
in camera submissions, and requiring agencies to augment public record before any ruling is
made on dispositive motions).
249

87

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

There is no set formula for a Vaughn Index; instead, courts have held that it is the
function, not the form that is important. 250 Indeed, the D.C. Circuit has observed that "a
Vaughn index is not a work of literature; agencies are not graded on the richness or
evocativeness of their vocabularies." 251 Likewise, the sufficiency of a Vaughn Index is not
determined by reference to the length of its document descriptions. 252 What "'is required
is that the requester and the trial judge be able to derive from the index a clear explanation
of why each document or portion of a document withheld is putatively exempt from
disclosure.'" 253 As the D.C. Circuit has explained:
See Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994) (indicating that there is no "precise
form . . . dictated for these affidavits"); Fiduccia, 185 F.3d at 1044 ("Any form . . . may be
adequate or inadequate, depending on the circumstances."); Church of Scientology, 30 F.3d
at 231 (agreeing that there is no set formula for Vaughn Index); Gallant v. NLRB, 26 F.3d
168, 172-73 (D.C. Cir. 1994) (holding that justification for withholding provided by agency
may take any form as long as agency offers "reasonable basis to evaluate [it]s claim of
privilege"); Vaughn v. United States, 936 F.2d 862, 867 (6th Cir. 1991) ("A court's primary
focus must be on the substance, rather than the form, of the information supplied by the
government to justify withholding requested information."); People for the Am. Way Found.
v. Nat'l Park Serv., 503 F. Supp. 2d 284, 294 (D.D.C. 2007) ("The adequacy of a Vaughn
Index is not defined by its form, but rather its substance."); Hornbeck v. U.S. Coast Guard,
No. 04-1724, 2006 WL 696053, at *6 (D.D.C. Mar. 20, 2006) ("[T]he precise form of the
agency's submission -- whether it be an index, a detailed declaration, or a narrative -- is
immaterial."); Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006) ("[I]t is the function of
a Vaughn index rather than its form that is important, and a Vaughn index is satisfactory as
long as it allows a court to conduct a meaningful de novo review of the agency's claim of
exemption."), summary judgment granted, 425 F. Supp. 2d 134 (D.D.C. 2006), aff'd per
curiam, No. 06-5130, 2007 WL 1234984 (D.C. Cir. Feb. 27, 2007); cf. People for the Ethical
Treatment of Animals v. USDA, No. 03-195, 2005 WL 1241141, at *4 (D.D.C. May 24, 2005)
(stating that the agency "may submit other materials to supplement its Vaughn index, such
as affidavits, that give the court enough information to determine whether the claimed
exemptions are properly applied" (citing Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252,
257 (D.D.C. 2004))).
250

Landmark Legal Found. v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001); see Coldiron v. DOJ,
310 F. Supp. 2d 44, 52 (D.D.C. 2004) ("Rarely does the court expect to find in briefs, much
less Vaughn indices, anything resembling poetry.").
251

See Judicial Watch, Inc., 449 F.3d at 146 ("[W]e focus on the functions of the Vaughn
index, not the length of the document descriptions, as the touchstone of our analysis.").
252

Manna v. DOJ, 832 F. Supp. 866, 873 (D.N.J. 1993) (quoting Hinton v. DOJ, 844 F.2d
126, 129 (3d Cir. 1988)), aff'd, 51 F.3d 1158 (3d Cir. 1995); see Jones, 41 F.3d at 242 (holding
agency's Vaughn Index adequate when it "'enables the court to make a reasoned
independent assessment of the claim[s] of exemption'" (quoting Vaughn, 936 F.2d at 86667)); Pinson v. DOJ, 61 F. Supp. 3d 164, 185 (D.D.C. 2015) (finding agency's Vaughn Index
adequate when it "notes the number of pages in the document and the FOIA request to
which it applies, identifies the exemptions asserted and provides a 'description of the
withheld information'"); Pub. Emps. for Envtl. Responsibility v. Office of Sci. and Tech., 881
253

88

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

[The Vaughn Index's purpose is] 'to permit adequate adversary testing of
the agency's claimed right to an exemption' and enable 'the District Court
to make a rational decision whether the withheld material must be produced
without actually viewing the document themselves, as well as to produce a
record that will render the District Court's decision capable of meaningful
review on appeal.' Thus, when an agency seeks to withhold information, it
must provide 'a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating those claims
with the particular part of a withheld document to which they apply.'
Specificity is the defining requirement of the Vaughn Index and affidavit. .
. 254
When a Vaughn Index meets these criteria, it is "'accorded a presumption of good
faith.'" 255 It has been held that a Vaughn Index must provide "'a relatively detailed
F. Supp. 2d 8, 13 (D.D.C. 2012) (finding Vaughn Index adequate when for each document
agency provided "details about each document's sender, recipients, date and time, and
subject" and "described the redacted portions of the documents, explained how that
information is exempted from FOIA, and provided the relevant FOIA exemption for each
piece of withheld information"); Smith v. Dep't of Labor, 789 F. Supp. 2d 274, 281 (D.D.C.
2011) (finding agency's Vaughn index adequate when it "describes the rationale of the
exemptions invoked and provides the locations in the disclosed documents where
redactions are made under those exemptions").
King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting Vaughn v. Rosen, 484 F.2d 820,
826 (D.C. Cir. 1973)); see also Skull Valley Band of Goshute Indians v. Kempthorne, No. 04339, 2007 WL 915211, at *11 (D.D.C. Mar. 26, 2007) (finding Vaughn Index sufficiently
detailed as it identifies "documents withheld in whole or in part by providing information
about the date, author, recipient, and subject of each document" and it "indicates the
specific portion withheld from each document, the FOIA exemption on which Defendants
rely for each withholding, and the reasons justifying the withholding on the basis of the
exemption invoked"); Cole v. DOJ, No. 05-674, 2006 WL 2792681, at *5 (D.D.C. Sept. 27,
2006) (noting that index specified: "(1) the type of document, (2) the exact location of the
withheld information in the document, (3) the applicable FOIA exemptions for all withheld
information, and (4) a brief description of the withheld information"); Edmonds Inst. v.
U.S. Dep't of the Interior, 383 F. Supp. 2d 105, 109 (D.D.C. 2005) (explaining that Vaughn
Index "should contain a short description of the content of each individual document
sufficient to allow" its exemption use to be tested); Dorsett v. U.S. Dep't of the Treasury, 307
F. Supp. 2d 28, 34 (D.D.C. 2004) (describing adequate Vaughn Index); St. Andrews Park,
Inc. v. U.S. Dep't of Army Corps of Eng'rs, 299 F. Supp. 2d 1264, 1271 (S.D. Fla. 2003)
(same).
254

Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) (quoting SafeCard Servs. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991)); see, e.g., Jones, 41 F.3d at 242 (reiterating that agency
affidavits are entitled to presumption of good faith); Am. Mgmt. Servs., LLC , 842 F. Supp.
2d at 870 (finding that initial errors, which were corrected by agency, were insufficient
grounds for striking entire index or questioning good faith); Butler v. DEA, No. 05-1798,
255

89

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

justification, specifically identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a withheld document to which
they apply.'" 256
A document specifically entitled "Vaughn Index" is not even essential, so long as
the nature of the withheld information is adequately attested to by the agency in a
declaration, or an index and declaration combined, or by in camera review. 257
2006 WL 398653, at *2 (D.D.C. Feb. 16, 2006) (noting presumption of good faith is
accorded to agency affidavits); Caton v. Norton, No. 04-CV-439, 2005 WL 3116613, at *11
(D.N.H. Nov. 21, 2005) (concluding that mistakes in processing FOIA request, which agency
"convincingly explained," were not sufficient to overcome "presumption of good faith" given
to its declaration); Dean v. FDIC, 389 F. Supp. 2d 780, 791 (D. Ky. 2005) (concluding that
agency's Vaughn Index was entitled to presumption of good faith because it contained
sufficient detail "to permit the court to make a fully informed decision" about propriety of
the agency's nondisclosure); see also Church of Scientology, 30 F.3d at 233 (explaining that
good-faith presumption is applicable only "when the agency has provided a reasonably
detailed explanation for its withholdings . . . court may not without good reason secondguess an agency's explanation, but it also cannot discharge its de novo review obligation
unless that explanation is sufficiently specific"); Coastal Delivery Corp. v. U.S. Customs
Serv., 272 F. Supp. 2d 958, 962 (C.D. Cal. 2003) (explaining that plaintiff's disagreement
with conclusions reached in Vaughn Index is not sufficient basis for challenging it, and
observing that "such a challenge is . . . appropriate [only] when the defendant does not
provide sufficient explanation of its position to allow for disagreement"), appeal dismissed
voluntarily, No. 03-55833 (9th Cir. 2003).
Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1258 (11th Cir. 2008)
(quoting Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir.
1977)); see, e.g., Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 370 (4th Cir. 2009)
(concluding that district court erred in finding Vaughn Index sufficiently detailed because
lack of factual information, such as author and recipient of documents, made it impossible
to determine whether documents fell under deliberative process privilege of Exemption 5);
People for the Am. Way Found., 503 F. Supp. 2d at 295 (finding agency's Vaughn Index
sufficiently detailed and explaining that need for detail "'is of particular importance . . .
where the agency is claiming that the documents are protected by the deliberative process
privilege under Exemption 5'" (quoting Edmonds Inst., 383 F. Supp. 2d at 108 n.1)); Odle,
2006 WL 1344813, at *9 (recognizing that "the detail required in a Vaughn index depends
on the specific exemption claimed"); Coldiron, 310 F. Supp. 2d at 52 (explaining that
repetition in Vaughn Index is to be expected, especially when "each redacted passage
concerns the same, classified subject"); cf. Lardner v. DOJ, No. 03-0180, 2005 WL 758267,
at *20 (D.D.C. Mar. 31, 2005) (finding that agency need not amend Vaughn Index to include
names of clemency applicants who were subjects of withheld advisory letters, because that
would shed no light on whether categorical withholding under Exemption 5 was proper).
256

See, e.g., Missouri Coal. For the Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d
1204, 1210 (8th Cir. 2008) (concluding that agency's Vaughn Index was adequate when
combined with additional information provided in affidavits); Judicial Watch, Inc., 449
F.3d at 146 (stating that agency may "submit other measures in combination with or in lieu
of the index itself," such as supporting affidavits, or seek in camera review of the
257

90

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

When voluminous records are at issue, courts have approved the use of Vaughn
Indices based upon representative samplings of the withheld documents. 258 This special
documents); Wishart v. Comm'r, 199 F.3d 1334, 1334 (9th Cir. 1999) (suggesting that
Vaughn Index is unnecessary if declarations are detailed enough) (unpublished table
decision); Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993) (deciding that separate
document expressly designated as "Vaughn Index" is unnecessary when agency
"declarations are highly detailed, focus on the individual documents, and provide a factual
base for withholding each document at issue"); Argus Leader Media v. U.S. Dep't of Agric.,
900 F. Supp. 2d 997, 1003 (D.S.D. 2012) (holding that Vaughn Index is not mandatory, but
court may order agency to provide one if adequacy of exemptions cannot be determined
without it), rev'd & remanded on other grounds, 740 F.3d 1172 (8th Cir. 2014); Zander v.
DOJ, 885 F. Supp. 2d 1, 12 (D.D.C. 2012) (finding under circumstances, because of court's in
camera review and plaintiff receiving full explanation of what documents were withheld and
why, plaintiff no longer had right to Vaughn Index), appeal dismissed, No. 12-5270, 2013
WL 599184 (D.C. Cir. Feb. 13, 2013); Kozacky & Weitzel, P.C., 2008 WL 2188457, at *3
("When the government's affidavits provide sufficient information for the court to evaluate
the exemption claims, a Vaughn Index is not required."); Voinche, 412 F. Supp. 2d at 65
(explaining that agency "does not have to provide an index per se, but can satisfy its burden
by other means, such as submitting the documents in question for an in camera review or by
providing a detailed affidavit or declaration"); Tax Analysts v. IRS, 414 F. Supp. 2d 1, 4
(D.D.C. 2006) (concluding that agency need not justify withholdings on document-bydocument basis because it invoked only one exemption); Doyharzabal v. Gal, No. 7:002995-24, 2004 WL 2444124, at *3 (D.S.C. Sept. 13, 2004) (finding agency's affidavit to be
"equivalent" to Vaughn Index); Judicial Watch, 297 F. Supp. 2d at 257 (noting that agency
may submit materials in "'any form'" as long as reviewing court has reasonable basis to
evaluate exemption claim (quoting Gallant, 26 F.3d at 173)); Ferri v. DOJ, 573 F. Supp. 852,
856-57 (W.D. Pa. 1983) (holding that 6000 pages of unindexed grand jury testimony were
sufficiently described); cf. Minier v. CIA, 88 F.3d 796, 804 (9th Cir. 1996) ("[W]hen a FOIA
requester has sufficient information to present a full legal argument, there is no need for a
Vaughn index.").
See, e.g., Neely v. FBI, 208 F.3d 461, 467 (4th Cir. 2000) (suggesting that, on remand,
district court "resort to the well-established practice . . . of randomly sampling the
documents in question"); Solar Sources, Inc. v. U.S., 142 F.3d 1033, 1038-39 (7th Cir. 1998)
(approving use of sample of 6000 pages out of five million); Jones, 41 F.3d at 242
(approving sample comprising two percent of total number of documents at issue);
Meeropol v. Meese, 790 F.2d 942, 956-57 (D.C. Cir. 1986) (allowing sampling of every 100th
document when approximately 20,000 documents were at issue); Weisberg v. DOJ, 745
F.2d 1476, 1490 (D.C. Cir. 1984) (approving index of sampling of withheld documents, with
over 60,000 pages at issue, even though no example of certain exemptions was provided);
Mullen v. U.S. Army Criminal Investigation Command, No. 10-262, 2011 WL 5870550, at *4
(E.D. Va. Nov. 22, 2011) (approving sample of every 84th page as representative sample for
39,575 pages at issue); Schoenman v. FBI, 604 F. Supp. 2d 174, 196 (D.D.C. 2009) ("As is
particularly relevant here, '[r]epresentative sampling is an appropriate procedure to test an
agency's FOIA exemption claims when a large number of documents are involved.'" (quoting
Bonner v. Dep't of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991))); Hornbeck, 2006 WL
696053, at *6 ("When dealing with voluminous records, a court will sanction an index or
agency declaration that describes only a representative sample of the total number of
258

91

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

procedure "allows the court and the parties to reduce a voluminous FOIA exemption case
to a manageable number of items" for the Vaughn Index and, "[i]f the sample is wellchosen, a court can, with some confidence, 'extrapolate its conclusions from the
representative sample to the larger group of withheld materials.'" 259
Once a
representative sampling of the withheld documents is agreed to, however, the agency's
subsequent release of some of those documents may destroy the representativeness of the
sample and thereby raise questions about the propriety of withholding other responsive
documents that were not included in the sample. 260 The D.C. Circuit has held that an

documents."); Nat'l Res. Def. Council v. DOD, 388 F. Supp. 2d 1086, 1089 (C.D. Cal. 2005)
(ordering parties to agree upon "representative sample" from more than 6500 documents
that will provide basis for Vaughn Index); Piper v. DOJ, 294 F. Supp. 2d 16, 20 (D.D.C.
2003) (noting that parties agreed to sample of 357 pages out of 80,000 to be discussed in
Vaughn Index). But see Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996
WL 571791, at *8 (D.D.C. Aug. 7, 1996) ("This Court does not believe that 173 pages of
located documents is even close to being 'voluminous.'"), aff'd on other grounds, No. 965262, 1997 WL 634559 (D.C. Cir. 1997); SafeCard Servs. v. SEC, No. 84-3073, 1988 WL
58910, at *3-5 (D.D.C. May 19, 1988) (concluding that burden of indexing relatively small
number of requested documents (approximately 200) was insufficient to justify sampling).
Bonner, 928 F.2d at 1151 (quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C.
1977)); see FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 612-13 (5th Cir. 2003)
(per curiam) (approving use of representative sample that was offered to district court for in
camera inspection, because sample was "adequate" to demonstrate that no reasonably
segregable information could be extracted from withheld records); Clemente v. FBI, 854 F.
Supp. 2d 49, 58 (D.D.C. 2012) ("The Court therefore examines the Vaughn index of the
representative sample in order to determine whether it suggests that the entire set of
responsive documents was properly processed under the legal standards applicable at the
time of processing."); Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d
29, 34 (D.D.C. 2001) (approving representative sampling of one of many applications for
investigational new drugs, all of which are "essentially uniform," but allowing plaintiff to
select one to be sampled); cf. Halpern v. FBI, No. 94-365, 2002 WL 31012157, at *14
(W.D.N.Y. Aug. 31, 2001) (magistrate's recommendation) (opining in dicta that sampling
would be inappropriate for 116 pages at issue), adopted, (W.D.N.Y. Oct. 16, 2001).
259

See Bonner, 928 F.2d at 1153-54 (explaining that sample should "uncover[] no excisions
or withholdings improper when made," but also noting that "[t]he fact that some documents
in a sample set become releasable with the passage of time does not, by itself, indicate any
agency lapse"); Meeropol, 790 F.2d at 960 (finding error rate of twenty-five percent
"unacceptably high"); Clemente, 854 F. Supp. 2d at 59-60 (ordering reprocessing of all
documents "because the FBI has released certain types of information from the sample
documents while withholding it from the rest"); Lardner v. FBI, 852 F. Supp. 2d 127, 137
(D.D.C. 2012) (ordering reprocessing of all records and finding agency's determination on
many sample records that exemptions no longer applied "indicates that the sample is not an
accurate illustration of the whole"); Schrecker v. DOJ, 14 F. Supp. 2d 111, 117 (D.D.C. 1998)
(ordering reprocessing of all documents because of problems with representative sampling).
But cf. Schoenman v. FBI, 763 F. Supp. 2d 173, 186 (D.D.C. 2011) (finding that selected
260

92

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

agency "must justify its initial withholdings and is not relieved of that burden by a later
turnover of sample documents," and that "the district court must determine whether the
released documents were properly redacted [when] initially reviewed." 261
Some agencies use "coded" Vaughn Indices -- which break certain FOIA
exemptions into several categories, explain the particular nondisclosure rationales for
each category, and then mark the exemption and category on the particular documents at
issue. 262 Courts have generally accepted the use of such "coded" indices when "[e]ach
deletion was correlated specifically and unambiguously to the corresponding exemption
. . . [which] was adequately explained by functional categories . . . [so as to] place[] each
document into its historical and investigative perspective." 263 Innovative formats for
sample still representative despite multiple errors in processing because FBI reprocessed all
responsive records, not just those contained within representative sample).
Bonner, 928 F.2d at 1154; see also Davin, 60 F.3d at 1053 (holding that plaintiff's
agreement to sampling does not relieve government of obligation to disclose reasonably
segregable, nonexempt material in all responsive documents, including those not part of
sample).
261

See, e.g., Jones, 41 F.3d at 242-43 (noting that coded indices "have become accepted
practice"); Maynard, 986 F.2d at 559 & n.13 (noting use by FBI and explaining format);
Queen, 2005 WL 3204160, at *2 (same); Hodge v. FBI, 764 F. Supp. 2d 134, 141 (D.D.C.
2011) ("Indeed, because the function, and not the form, of the index is dispositive, our
Circuit has upheld similar agency declarations coupled with coded categories, in lieu of
Vaughn indices."), aff'd on other grounds, 703 F.3d 575 (D.C. Cir. 2013); Blackwell v. FBI,
680 F. Supp. 2d 79, 95 (D.D.C. 2010) (finding FBI met its burden when it "category-coded
the documents identified in the Vaughn Index, detailing the nature of the information
withheld and which Exemption(s) applied"), aff'd, 646 F.3d 37 (D.C. Cir. 2011).
262

Keys, 830 F.2d at 349-50; see, e.g., Morley, 508 F.3d at 1122 (affirming agency's use of
coded Vaughn Index and explaining that there is no requirement for "'repetitive, detailed
explanations for each piece of withheld information - that is, codes and categories may be
sufficiently particularized to carry the agency's burden of proof'" (quoting Judicial Watch,
Inc., 449 F.3d at 147)); Blanton v. DOJ, 64 F. App'x 787, 789 (D.C. Cir. 2003) (stating that
"coding . . . adequately describes the documents and justifies the exemptions"); Maynard,
986 F.2d at 559 n.13 (explaining that "use of coded indices has been explicitly approved by
several circuit courts"); Fischer v. DOJ, 596 F. Supp. 2d 34, 44 (D.D.C. 2009) (finding
agency's coded declaration to be sufficient); Baez v. FBI, 443 F. Supp. 2d 717, 723 (E.D. Pa.
2006) (upholding use of coded Vaughn Index where agency "redacted only identifying
information and administrative markings"); Garcia v. DOJ, 181 F. Supp. 2d 356, 370
(S.D.N.Y. 2002) (accepting adequacy of agency's coded Vaughn Index); Canning, 848 F.
Supp. at 1043 ("[T]here is nothing inherently improper about the use of a coding system.");
Steinberg v. DOJ, 801 F. Supp. 800, 803 (D.D.C. 1992), aff'd in pertinent part & remanded
in part, 23 F.3d 548 (D.C. Cir. 1994) (refusing to find coded Vaughn Index inadequate); cf.
Fiduccia, 185 F.3d at 1043-44 (observing that "[t]he form of disclosure is not critical" and
that "redacted documents [can be] an entirely satisfactory (perhaps superior) alternative to
a Vaughn index or affidavit performing this function"); Davin, 60 F.3d at 1051 ("While the
263

93

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

"coded" affidavits have been found acceptable, so long as they enhance the ultimate goal
of overall "descriptive accuracy" of the affidavit. 264
The D.C. Circuit has held that the district court judge's review of only the redacted
documents -- an integral part of the "coded" affidavit -- was sufficient in a situation in
which the applicable exemption was obvious from the face of the documents. 265 However,
this approach has been found inadequate when the coded categories are too "far ranging"
and more detailed subcategories could be provided. 266 Indeed, when numerous pages of
records are withheld in full, a "coded" affidavit that does not specifically correlate multiple
exemption claims to particular portions of the pages withheld has been found to be
impermissibly conclusory. 267
Lastly, courts have upheld Vaughn Indices where agencies have grouped similar
documents into categories and provided descriptions of the withholdings based on those
use of the categorical method does not per se render a Vaughn index inadequate, an agency
using justification codes must also include specific factual information concerning the
documents withheld and correlate the claimed exemptions to the withheld documents."), on
remand, No. 92-1122, slip op. at 6 (W.D. Pa. Apr. 9, 1998) (approving revised coded Vaughn
Index), aff'd, 176 F.3d 471 (3d Cir. 1999) (unpublished table decision). But see Wiener, 943
F.2d at 978-79 (rejecting coded affidavits on belief that such categorical descriptions fail to
give requester sufficient opportunity to contest withholdings).
See Nat'l Sec. Archive v. Office of the Indep. Counsel, No. 89-2308, 1992 WL 1352663, at
*3-4 (D.D.C. Aug. 28, 1992) (finding "alphabetical classification" properly employed to
facilitate coordination of agency justifications where information was withheld by multiple
agencies under various exemptions); see also King, 830 F.2d at 225; Canning, 848 F. Supp.
at 1043.
264

Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987); see
Whittle v. Moschella, 756 F. Supp. 589, 595 (D.D.C. 1991) ("For two large redactions, the
contents are not readily apparent, but since the information there redacted was provided by
confidential sources, it is entirely protected from disclosure."); see also King, 830 F.2d at
221 ("Utilization of reproductions of the material released to supply contextual information
about material withheld is clearly permissible, but caution should be exercised in resorting
to this method of description."); cf. Fiduccia, 185 F.3d at 1043 (recognizing that Vaughn
Index is "a superfluity" when plaintiff and court can ascertain the nature of information
withheld by reviewing the redacted documents).
265

See King, 830 F.2d at 221-22. But see Canning, 848 F. Supp. at 1044-45 (approving
coded Vaughn Index for classified information and differentiating it from that filed in King).
266

See Coleman v. FBI, No. 89-2773, 1991 WL 333709, at *4 (D.D.C. Apr. 3, 1991) (allowing
"coded" affidavit for redacted pages, but rejecting it as to pages withheld in full), summary
affirmance granted, No. 92-5040, 1992 WL 373976 (D.C. Cir. Dec. 4, 1992); see also
Williams v. FBI, No. 90-2299, 1991 WL 163757, at *3-4 (D.D.C. Aug. 6, 1991) (finding
"coded" affidavit insufficiently descriptive as to documents withheld in their entireties).
267

94

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

categories, 268 but have declined to accept Vaughn Indices which group documents into
overly broad categories. 269
Courts have permitted the withholding of records on a "generic" basis in cases
involving Exemption 7(A). 270 While the outermost contours of what constitutes
See Judicial Watch, Inc., 449 F.3d at 148 (concluding that agency's "decision to tie each
document to one or more claimed exemptions in its index and then summarize the
commonalities of the documents in a supporting affidavit is a legitimate way of serving
those functions"); Landmark Legal Found., 267 F.3d at 1138 (finding that repetitive nature
did not make Vaughn Index deficient because it was "not the agency's fault that thousands
of documents belonged in the same category, thus leading to exhaustive repetition");
Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (finding
adequate, for responsive records consisting of 1000 volumes of 300 to 400 pages each,
agency's volume-by-volume categorical summary when Vaughn Indices "specifically
describe the documents' contents and give specific reasons for withholding them"); Vaughn,
936 F.2d at 868 (approving category-of-document approach when over 1000 pages were
withheld under Exemptions 3, 5, 7(A), 7(C), 7(D), and 7(E)); Davis v. DOJ, 968 F.2d 1276,
1282 n.4 (D.C. Cir. 1992) (opining that precise matching of exemptions with specific
withheld items "may well be unnecessary" when all government's generic categorical claims
have merit); Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL
5870550, *8 (E.D. Va. Nov. 22, 2011) (approving use of categorical Vaughn Index for those
"documents that were withheld in full since those documents were all withheld on the same
basis"); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 142 (D.D.C. 2007)
(concluding that "[w]hile there is some degree of repetition among entries within
defendant's Vaughn Index, repetition is to be expected, especially when 'each redacted
passage concerns the same . . . subject'" (quoting Coldiron, 310 F. Supp. 2d at 52)); Pully v.
IRS, 939 F. Supp. 429, 433-38 (E.D. Va. 1996) (accepting categorization of 5624 documents
into twenty-six separate categories protected under several exemptions).
268

See Prison Legal News v. Samuels, 787 F.3d 1142, 1149 (D.C. Cir. 2015) (remanding for
creation of new Vaughn Index and declaration because categories "included a wide range of
claims covering various degrees of privacy concerns" and finding that categories must be
"based on the individual's privacy interest or the public interest in disclosure");
Bloomgarden v. DOJ, No. 12-0843, 2016 WL 471251, at *1 (D.D.C. Feb. 5, 2016) (finding
Vaughn Index "'useless [and] deficient' because it impermissibly lumped hundreds of pages
together in a single entry, making it impossible to understand which claimed exemptions
applied to which documents (and why)").
269

See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 218-24 (1978) (endorsing
government's position "that a particularized, case-by-case showing is neither required nor
practical" and that language of Exemption 7(A) "appears to contemplate that certain generic
determinations may be made"); Solar Sources, 142 F.3d at 1040 (reiterating that detailed
Vaughn Index is not generally required in Exemption 7(A) cases); W. Journalism Ctr. v.
Office of the Indep. Counsel, No. 96-5178, 1997 WL 195516, at *1 (D.C. Cir. Mar. 11, 1997)
("[A]ppellee was not required to describe the records retrieved in response to appellants'
request, or the harm their disclosure might cause, on a document-by-document basis, as
appellee's description of the information contained in the three categories it devised is
sufficient to permit the court to determine whether the information retrieved is exempt
270

95

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

acceptable "generic" Exemption 7(A) Vaughn declarations are sometimes unclear, 271 it
appears well established that if the agency has (1) defined its Exemption 7(A) categories
functionally, (2) conducted a document-by-document review in order to assign
documents to the proper category, and (3) explained how the release of each category of
information would interfere with the enforcement proceedings, the description will be
found sufficient. 272 When an agency invokes an exemption to protect a broad category of
records, such as investigatory records pertaining to a third party, 273 a generic description

from disclosure."); In re DOJ, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc) (ruling that to
satisfy its burden under 7(A), agency is not required to "produce a fact-specific, documentspecific, Vaughn index"); Dickerson v. DOJ, 992 F.2d 1426, 1428, 1433-34 (6th Cir. 1993)
(approving FBI justification of Exemption 7(A) for documents pertaining to disappearance
of Jimmy Hoffa on "category-of-document" basis by supplying "a general description of the
contents of the investigatory files, categorizing the records by source or function"); Lewis v.
IRS, 823 F.2d 375, 389 (9th Cir. 1987) ("The IRS need only make a general showing that
disclosure of its investigatory records would interfere with its enforcement proceedings.");
Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (stating that with respect to
Exemption 7(A), it is sufficient for agency to take generic approach by grouping records into
"relevant categories" that are distinct and which allow court to understand how release
would interfere with investigation); Lawyers' Comm. for Civil Rights of S.F. Bay Area v. U.S.
Dep't of the Treasury, No. 07-2590, 2008 WL 4482855, at *7 (N.D. Cal. Sept. 30, 2008)
("[W]hen a claimed FOIA exemption is based on a general exclusion, such as Exemption
7(A)'s criminal investigation exclusion, which is dependent on the category of the requested
records rather than the individual subject matters contained within each document, a
Vaughn Index is unnecessary."); Gavin v. SEC, No. 04-4522, 2005 WL 2739293, at *3 (D.
Minn. Oct. 24, 2005) (recognizing propriety of categorical approach to justify use of
Exemption 7(A)) reconsideration denied, 2006 WL 208783 (D. Minn.. Jan. 26, 2006).
Compare Curran v. DOJ, 813 F.2d 473, 476 (1st Cir. 1987) (approving category entitled
"other sundry items of information" because "[a]bsent a 'miscellaneous' category of this
sort, the FBI would, especially in the case of one-of-a-kind records, have to resort to just the
sort of precise description which would itself compromise the exemption"), and May v. IRS,
No. 90-1123-CV-W-2, 1991 WL 328041, at *2-3 (W.D. Mo. Dec. 9, 1991) (approving
categories of "intra-agency memoranda" and "work sheets"), with Bevis, 801 F.2d at 1390
("categories identified only as 'teletypes,' or 'airtels,' or 'letters'" held inadequate).
271

See In re DOJ, 999 F.2d at 1389-90 (citing Bevis, 801 F.2d at 1389-90); Manna v. DOJ,
815 F. Supp. 798, 806 (D.N.J. 1993), aff'd, 51 F.3d 1158 (3rd Cir. 1995); see also Dickerson,
992 F.2d at 1433 (enumerating categories of information withheld); Judicial Watch, Inc. v.
FBI, No. 00-745, 2001 WL 35612541, at *5 (D.D.C. Apr. 20, 2001) (same); Curran, 813 F.2d
at 476 (same); May, 1991 WL 328041, at *3-4 (same); Docal v. Bennsinger, 543 F. Supp. 38,
44 n.12 (M.D. Pa. 1981) (enumerating categories of "interference"); cf. Curran, 813 F.2d at
476 (stating that FBI affidavit met Bevis test and therefore finding it unnecessary to
determine whether Bevis test is too demanding).
272

Reporters Comm. for Freedom of Press, 489 U.S. 749, 779-80 (1989) (authorizing
"categorical" protection of information under Exemption 7(C)).
273

96

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

of the records withheld under that categorical basis has been found to satisfy an agency's
Vaughn obligation. 274
Courts have held that a Vaughn Index must address whether the agency has
reviewed the documents to identify reasonably segregable information. 275
See Gallant, 26 F.3d at 173 (finding government under no obligation to justify
withholding of third party names on an individual-by-individual basis under FOIA
Exemption 6); Church of Scientology, 792 F.2d at 152 (finding generic exemption under IRS
Exemption 3 statute appropriate if "affidavit sufficiently detailed to establish that the
document or group of documents in question actually falls into the exempted category");
Antonelli v. FBI, 721 F.2d 615, 617-19 (7th Cir. 1983) (holding that no index is required in
third-party request for records when agency categorically neither confirmed nor denied
existence of records on particular individuals absent showing of public interest in
disclosure); Brown v. FBI, 658 F.2d 71, 74 (2d Cir. 1981) (concluding that itemized and
indexed justification unnecessary with respect to third party request for records); Pully, 939
F. Supp. at 433-38 (noting that "[t]he detail outlined by the IRS in its supporting affidavits
must provide sufficient justification that the claimed exemption applies to the requested
document so that the requesting party may challenge the asserted exemption" and accepting
categorical descriptions for documents protected under Exemptions 3, 5 (attorney-client
privilege), 7(A), 7(C), and 7(E) – 5624 documents arranged into twenty-six categories);
May, 1991 WL 328041, at *3-4 (denying plaintiff's request for index and finding that
categorical description of records withheld under Exemptions 3 and 7(A) acceptable). But
see McNamara v. DOJ, 949 F. Supp. 478, 483 (W.D. Tex. 1996) (rejecting apparent
categorical indices for criminal files on third parties that were withheld under Exemptions 6
and 7(C) because "there is no way for the court to tell whether some, a portion of some, or
all the documents being withheld fall within any of the exemptions claimed").
274

See, e.g., Krikorian v. Dep't of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (remanding for
segregability determination for "each of the withheld documents"); Milton v. DOJ, 842 F.
Supp. 2d 257, 260 (D.D.C. 2012) (determining affidavit attesting that information is not
segregable due to technical limitations is sufficient to satisfy segregability requirement),
aff'd on other grounds, No. 12-5376, 2013 WL 6222921 (D.C. Cir. Nov. 15, 2013); Am.
Mgmt. Servs., LLC, 842 F. Supp. 2d at 885 (finding Vaughn Index sufficient for
segregability where agency provided "an individual segregability finding for each document,
and where necessary, an accompanying rationale"); Schoenman v. FBI, 841 F. Supp. 2d 69,
84 (D.D.C. 2012) (finding segregability obligation met where Vaughn index demonstrated
that agency conducted "a line-by-line review of each document in an attempt to identify and
release non-exempt portions of each document"), appeal dismissed, No. 12-5079, 2012 WL
3244009 (D.C. Cir. July 31, 2012); Elec. Frontier Found. v. DOJ, 826 F. Supp. 2d 157, 175
(D.D.C. 2011) (suggesting that Vaughn Index should "'describe what proportion of the
information in [the] document[s],' if any, 'is non-exempt and how that material is dispersed
throughout the document[s]'"); Beltranena v. U.S. Dep't of State, 821 F. Supp. 2d 167, 178
(D.D.C. 2011) (determining agency discharged its segregability obligation when
supplemental declaration "carefully outline[d], on a document-by-document basis, the
process by which the [agency] conducted its segregability determinations"); Smith v. DOL,
798 F. Supp. 2d 274, 281 (D.D.C. 2011) (determining agency did not need to conduct
segregability analysis where "redactions are themselves indicative that [agency] conducted a
line-by-line review and segregation of the material"); Hall v. DOJ, 552 F. Supp. 2d 23, 31
275

97

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

With regard to the timing of the creation of a Vaughn Index, it is well settled that
a requester is not entitled to receive one during the administrative process. 276 Once in
litigation, efforts to compel the preparation of Vaughn Indices prior to the filing of an

(D.D.C. 2008) (finding that, due to inadequacy of Vaughn Index and to vast quantity of
information withheld, it was impossible to determine whether all reasonably segregable
information was released); Edmonds Inst., 383 F. Supp. 2d at 108 ("The Vaughn index
should contain a description of the segregability analysis . . . ."); Nat'l Res. Def. Council, 388
F. Supp. 2d at 1105 (denying summary judgment because agency "completely fail[ed] to
analyze segregability"); The Wilderness Soc'y v. U.S. Dep't of the Interior, 344 F. Supp. 2d 1,
19 (D.D.C. 2004) (rejecting "blanket declaration that all facts are so intertwined [as] to
prevent disclosure under the FOIA" (citing Animal Legal Def. Fund, Inc. v. Dep't of the Air
Force, 44 F. Supp. 2d 295, 301-02 (D.D.C. 1999))).
See, e.g., Bangoura v. U.S. Dep't of the Army, 607 F. Supp. 2d 134, 143 n.8 (D.D.C. 2009)
(noting that agency not required to provide Vaughn Index prior to filing of lawsuit);
Schwarz v. U.S. Dep't of Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000) ("[T]here is no
requirement that an agency provide a . . . 'Vaughn' index on an initial request for
documents."), summary affirmance granted, No. 00-5453, 2001 WL 674636 (D.C. Cir. May
10, 2001); Edmond v. U.S. Attorney, 959 F. Supp. 1, 5 (D.D.C. 1997) (rejecting, as
premature, request for Vaughn Index when agency had not processed plaintiff's request).
276

98

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

agency's dispositive motion are often denied as premature, 277 but have been granted in
some instances. 278
"Reasonably Segregable" Requirements
See, e.g., Miscavige, 2 F.3d at 369 ("The plaintiff's early attempt in litigation of this kind
to obtain a Vaughn Index . . . is inappropriate until the government has first had a chance to
provide the court with the information necessary to make a decision on the applicable
exemptions."); Mullen, 2011 WL 5870550, at *4 (discussing generally timing of Vaughn
Index production and ruling agency did not have to produce Vaughn until it filed its
dispositive motion); Ioane v. C.I.R., No. 09-00243, 2010 WL 2600689, at *6 (D. Nev. Mar.
11, 2010) ("Generally, agencies should be given the opportunity to file dispositive motions
and produce affidavits regarding claimed exemptions before they are ordered to produce
Vaughn indices."); Gerstein v. CIA, No. 06-4643, 2006 WL 3462659, at *5 (N.D. Cal. Nov.
29, 2006) (denying plaintiff's request for Vaughn Index because agencies had not yet begun
responding to plaintiff's FOIA requests); Bassiouni v. CIA, 248 F. Supp. 2d 795, 797 (N.D.
Ill. 2003) (finding plaintiff's request for a Vaughn Index premature because the case was
"only in the initial stages"); Pyne v. Comm'r, No. 98-00253, 1999 WL 112532, at *3 (D. Haw.
Jan. 6, 1999) (denying motion to compel submission of Vaughn Index as "premature" when
agency had not yet refused to release records or provided supporting affidavit for
nondisclosure); Stimac v. DOJ, 620 F. Supp. 212, 213 (D.D.C. 1985) (denying as premature
motion to compel Vaughn Index on ground that "filing of a dispositive motion, along with
detailed affidavits, may obviate the need for indexing the withheld documents"); see also
Payne v. DOJ, No. 95-2968, 1995 WL 601112, at *1 (E.D. La. Oct. 11, 1995) (refusing to order
Vaughn Index at "nascent" stage of litigation, i.e., when defendants had not even answered
plaintiff's Complaint); Cohen v. FBI, 831 F. Supp. 850, 855 (S.D. Fla. 1993) (confirming that
Vaughn Index is not required when "Open America" stay is granted "because no documents
have been withheld on the grounds that they are exempt from disclosure").
277

See, e.g., People ex rel. Brown v. EPA, No. 07-02055, 2007 WL 2470159, at *2 (N.D. Cal.
Aug. 27, 2007) (ordering agencies to submit Vaughn Indices prior to filing motions for
summary judgment due to passage of time since submission of initial request; "it would be
unfair to allow [agencies] months to prepare their case and then force Plaintiff to formulate
its entire case within the two weeks it has to respond to the motion"); Keeper of Mountains
Found. v. DOJ, No. 06-cv-00098, 2006 WL 1666262, at *3 (S.D. W. Va. June 14, 2006)
(granting plaintiff's request for Vaughn Index prior to agency's dispositive motion, because
production "at this stage of the litigation, rather than later at the summary judgment stage,
is the more efficient and fair approach"); ACLU v. DOD, 339 F. Supp. 2d 501, 504-05
(S.D.N.Y. 2004) (ordering production of Vaughn Index prior to filing of defendants'
dispositive motion, due to "glacial pace at which defendant agencies have been responding
to the plaintiffs' requests," which evinces "an indifference to the commands of FOIA and
fails to afford accountability of government"); Providence Journal Co. v. U.S. Dep't of the
Army, 769 F. Supp. 67, 69 (D.R.I. 1991) (finding contention that Vaughn Index must await
dispositive motion to be "insufficient and sterile" when agency "has not even indicated when
it plans to file such a motion"); cf. Schulz v. Hughes, 250 F. Supp. 2d 470, 475 (E.D. Pa.
2003) (ruling that upon payment of fees, agency should prepare Vaughn Index for any
documents it refuses to release).
278

99

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The FOIA requires that "[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such a record after deletion of the portions which are
exempt." 279 Because of this requirement, added as part of the 1974 FOIA amendments, 280
an agency cannot "justify withholding an entire document simply by showing that it
contains some exempt material." 281 Rather, this provision generally requires agencies to
apply exemptions to specific segments of information within a record, instead of to the
document as a whole. 282 At the same time, courts, including the Court of Appeals for the
District of Columbia Circuit, have held that agencies need not "commit significant time
and resources to the separation of disjointed words, phrases or even sentences which
taken separately or together have minimal or no information[al] content" in order to
comply with the segregation requirement. 283 Furthermore, courts have not required
279

5 U.S.C. § 552(b) (2012 & Supp. V 2017) (sentence immediately following exemptions).

280

Pub. L. No. 93-502, 88 Stat. 1561.

Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977); see
Kimberlin v. DOJ, 139 F.3d 944, 950 (D.C. Cir. 1998).
281

See Mo. Coal. for the Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1211-12
(8th Cir. 2008) (stating that "[e]ffectively, each document consists of 'discrete units of
information,' all of which must fall within a statutory exemption in order for the entire
document to be withheld" (quoting Billington v. DOJ, 233 F.3d 581, 586 (D.C. Cir. 2000)));
Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) ("'The focus in the FOIA is
information not documents and an agency cannot justify withholding an entire document
simply by showing that it contains some exempt material.'" (quoting Mead Data, 566 F.2d
242, 260 (D.C. Cir. 1977))), abrogated on other grounds by Milner v. Dep't of the Navy, 562
U.S. 562 (2011); see also OIP Guidance: Segregating and Marking Documents for Release in
Accordance with the OPEN Government Act (posted 2008, updated 9/24/2014) (providing
guidance regarding segregation of documents for release in light of statutory provisions of
OPEN Government Act).
282

Mead Data, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977); see, e.g., Covington v. McLeod, No.
09-5336, 2010 U.S. App. 14871, at *2 (D.C. Cir. July 16, 2010) (per curiam) (concluding that
"because the exempt and non-exempt information in the [requested] grand jury material
and proffer statement are 'inextricably intertwined,' any excision of exempt information
would impose significant costs on the agency and produce edited documents with little
informational value"); Am. Mgmt. Servs., LLC v. Dep't of Army, 842 F. Supp. 2d 859, 885
(E.D. Va. Jan 23, 2012) (same), aff'd, 703 F.3 724 (4th Cir. 2013); Brown v. DOJ, 734 F.
Supp. 2d 99, 110-11 (D.D.C. 2010) (determining that "defendant need not expend
substantial time and resources to 'yield a product with little, if any, informational value'" by
releasing "plaintiff's name, cities, and file numbers on documents that are otherwise exempt
from production" (quoting Assassination Archives & Res. Ctr. v. CIA, 177 F. Supp. 2d 1, 9
(D.D.C. 2001))); Amnesty Int'l USA v. CIA, 728 F. Supp. 2d 479, 529 (S.D.N.Y. 2010)
(concluding that "forcing the CIA to re-process all of the records for the sole purpose of
releasing various words and phrases would be a waste of time and resources"); Asian Law
Caucus v. DHS, No. 08-0842, 2008 WL 5047839, at *6 (N.D. Cal. Nov. 24, 2008) (holding
that agency properly withheld records in full because they "contain small portions of non283

100

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

segregation where, due to the format of the requested record, it is not technically feasible
to segregate the exempt information from the nonexempt information. 284
Additionally, although as a general rule, "[t]he 'segregability requirement applies
to all . . . documents and all exemptions in the FOIA,'" 285 the D.C. Circuit has held that
there is no duty to segregate materials which are, by definition, wholly exempt from
disclosure. 286 Procedurally, an agency must in its declaration demonstrate that the
exempt information and these portions are inextricably intertwined with the exempt
information"); Arizechi v. IRS, No. 06-5952, 2008 WL 539058, at *6 (D.N.J. Feb. 25, 2008)
(finding that segregation requirement is "futile in the case of summonses issued to
witnesses" because "releasing a blank summons would serve no purpose and is not
required"); Thomas v. DOJ, No. 04-112, 2006 WL 722141, at *4 (E.D. Tex. Mar. 15, 2006)
(noting that redacting telephone recordings for segregable information "would have left
nothing meaningful to release"), aff'd, 260 F. App'x 677 (5th Cir. 2007).
See, e.g., Milton v. DOJ, 842 F. Supp. 2d 257, 261 (D.D.C. 2012) (holding that BOP is not
required to segregate plaintiff's side of telephone conversations where it lacks technological
capability to do so), aff'd on other grounds, No. 12-5376, 2013 WL 6222921 (D.C. Cir. Nov.
15, 2013); Mingo v. DOJ, 793 F. Supp. 2d 447, 452-56 (D.D.C. 2011) (finding that BOP
properly withheld disks containing video footage of an "altercation and images of 'at least 50
different inmates'" in full under Exemption 7(C) where it lacked technological capability to
redact them).
284

Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992)) (quoting Ctr. for Auto Safety v.
EPA, 731 F.2d 16, 21 (D.C. Cir. 1984)), abrogated on other grounds by, Milner v. Dep't of the
Navy, 562 U.S. 562 (2011); see, e.g., McSheffrey v. EOUSA, 13 F. App'x 3, 4 (D.C. Cir. 2001)
(remanding with explicit instructions that district court "determine whether any portion of
these documents can be segregated for release"); Mays v. DEA, 234 F.3d 1324, 1328 (D.C.
Cir. 2000) (remanding to determine whether "any intelligible portion of the contested pages
can be segregated for release").
285

Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371 (D.C. Cir. 2005) (holding that "[i]f a
document is fully protected as [attorney] work product, then segregability is not required");
accord Carter v. NSA, No 13-5322, 2014 WL 2178708, at *2 (D.C. Cir. Apr. 23, 2014)
(finding no agency obligation under FOIA to conduct segregability analysis if agency
properly asserted Glomar response); Pickard v. DOJ, 713 F. App'x 609, 610-11 (9th Cir.
2018) (determining that findings on segregability unnecessary "because Plaintiff is not
legally entitled to any of the information.") (unpublished table decision); see. e.g., Surgick v.
Cirella, No. 09-3807, 2012 U.S. Dist. LEXIS 43426, at *31 (D.N.J. Mar. 29, 2012)
(determining that "FOIA's segregation requirement is not applicable in this case" because
not only are the tax returns sought by plaintiffs "entirely exempt from disclosure [under the
Exemption 3 in conjunction with Section 6103 of the Internal Revenue Code], but also . . .
there is no form of non-exempt information in these documents which the IRS could
segregate and disclose"); Beltranena v. Dep't of State, 821 F. Supp. 2d 167, 179 (D.D.C. 2011)
(noting that segregability with regard to Exemption 3 "differs somewhat from the review
conducted in relation to FOIA's other exemptions" because "the disclosure-prohibiting
statute" controls what is withheld); Tamayo v. DOJ, No. 07-21299, slip op. at 6 (S.D. Fla.
286

101

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

withheld materials are wholly exempt from disclosure, "with reasonable specificity." 287
Courts have held that agencies should not base their segregability determination upon an
assessment of the value of the information to the requester. 288 Courts have on occasion
made their own segregability determinations, even in the absence of an adequate analysis
in an agency's declaration, 289 at times after reviewing material in camera. 290
June 18, 2011) (finding that because records withheld by FBI pursuant to Exemption 1 "were
properly classified, none of the classified information is segregable and subject to
disclosure").
Armstrong v. Exec. Off. of the President, 97 F.3d 575, 580 (D.C. Cir. 1996); see Judicial
Watch, Inc. v. DHS, 880 F. Supp. 2d 105, 113 (D.D.C. 2012) (holding that agency affidavits
are sufficient to fulfill agency's obligation to show with reasonable specificity why records
are exempt in full); Barnard v. DHS, 598 F. Supp. 2d 1, 25 (D.D.C. 2009) (finding agency's
description of why records were fully exempt adequate after agency described proportion of
non-exempt information and how it was dispersed throughout the withheld records); see
also Elec. Privacy Info. Ctr. v. TSA, No. 03-1846, 2006 WL 626925, at *8 (D.D.C. Mar. 12,
2006) (explaining that in situations where records are wholly exempt, "line-by-line" review
is not required as court considers "a variety of factors to determine if Defendants'
segregability justifications [are] sufficiently detailed and reasonable, rather than requiring a
specific checklist of form language").
287

See Stolt-Nielsen Transp. Group Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008)
(rejecting agency's assessment that "redacted documents without the names and dates
would provide no meaningful information" because "FOIA mandates disclosure of
information, not solely disclosure of helpful information"); Antonelli v. BOP, 623 F. Supp.
2d 55, 60 (D.D.C. 2009) (holding that declarant's statement that "'no meaningful portion [of
the withheld documents] could be released without destroying the integrity" of document "is
not significantly probative" as to whether all segregable non-exempt material was
disclosed); Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *26 (D.D.C. Mar. 19,
2009) (concluding that agency's segregability analysis was correct and finding that it did not
impermissibly base its determination on whether "the substantive content of the nonexempt information, although reasonably segregable, 'provid[ed] no meaningful
information'" (quoting Stolt-Nielsen, 534 F.3d at 733-34)).
288

See, e.g., Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) (recognizing "substantial
defect" in declaration that fails to refer explicitly to segregability, but nevertheless
determining independently that the segregability requirement met by "narrow scope of the
categorical withholdings[,] . . . the good faith declaration that only such properly withheld
information was redacted, and a careful review of the actual documents that plaintiff
submitted"), summary affirmance granted, No. 01-5451, 2002 WL 31189766, at *1 (D.C. Cir.
Oct. 2, 2002); Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459, at
*3 (D. Minn. July 19, 2001) (deciding sua sponte that zip codes and dates of signature
entries on petition are not "reasonably segregable," because of "distinct possibility" that
release of that information would thwart protected privacy interest).
289

Bartko v. DOJ, 167 F. Supp. 3d 55, 73 (D.D.C. 2016) ("The Court, in an abundance of
caution, . . . undertook its own in camera review[,]" and "[a]fter conducting such review, the
Court is satisfied that no additional materials need be released, for '[t]he non-exempt
290

102

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

In Trans-Pacific Policing Agreement v. United States Customs Service, the D.C.
Circuit treated the segregation obligation as a sua sponte requirement for the district
court. 291 As a result of Trans-Pacific, even in the absence of a challenge by a FOIA plaintiff
as to the issue of segregability, courts have denied an agency's motion for summary
judgment when they found the declarations did not adequately demonstrate that all
reasonably segregable, nonexempt information had been disclosed. 292 (For a further
portions of these documents that have been redacted are inextricably intertwined with
exempt portions and they need not be further segregated.'"); ACLU v. DOD, 389 F. Supp. 2d
547, 567-68 (S.D.N.Y. 2005) (granting the government's motion for summary judgment
with regard to segregability based on in camera review of Vaughn Index and classified
declarations); Rugiero v. DOJ, 234 F. Supp. 2d 697, 710 (E.D. Mich. 2002) (ordering in
camera review because "plaintiff has raised enough doubt" about segregability issue).
177 F.3d 1022, 1027 (D.C. Cir. 1999) (reversing district court and indicating that district
court had duty to consider reasonable segregability even though requester never sought
segregability finding); see also Elliott v. USDA, 596 F.3d 842, 851 (D.C. Cir. 2010) (noting
that although plaintiff did not challenge agency's segregability determination, the district
court properly considered the issue sua sponte), cert. denied, 560 U.S. 973 (2010); Mo.
Coal., 542 F.3d at 1212 ("In every case, the district court must make an express finding on
the issue of segregability."); Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007) (stating
that "'the district court [has] an affirmative duty to consider the segregability issues sua
sponte'" (quoting Trans-Pac., 177 F.3d at 1028))); Isley v. EOUSA, 203 F.3d 52, 52 (D.C. Cir.
1999) (explaining that district court erred in failing to make segregability finding even
though plaintiff failed to raise issue at trial) (unpublished table decision); Barnard, 598 F.
Supp. 2d at 25 ("The segregability requirement is of such great import that this Court has an
affirmative duty to engage in its own segregability analysis, regardless of Plaintiff's
pleadings.").
291

See, e.g., Am. Immigr. Laws. Ass'n v. DHS, 852 F. Supp. 2d 66, 80-81 (D.D.C. 2012)
(ordering defendant to provide revised Vaughn submissions to address segregability where
agency "fail[ed] to describe the portion of exempt to non-exempt information and fail[ed] to
establish that any non-exempt information is 'inextricably intertwined' with exempt
information"); Elec. Frontier Found. v. DOJ, 826 F. Supp. 2d 157, 174 (D.D.C. 2011) (finding
"DOJ's description of its segregation efforts . . . too categorical for the Court to evaluate
whether any factual material in the documents withheld in full is 'inextricably intertwined'
with the deliberative material"); McGehee v. DOJ, 800 F. Supp. 2d 220, 238 (D.D.C. 2011)
(concluding that FBI's submissions are "deficient and must be supplemented" where "the
failure of the Vaughn Index to provide any specific information regarding the missing pages
and numerous redactions renders it impossible to evaluate the FBI's conclusions that the
pages had no segregable portions"); Gray v. U.S. Army Crim. Investigation Command, 742
F. Supp. 2d 68, 76 (D.D.C. 2010) (holding that agency's assertion that records were properly
withheld in full because they "were compiled in the course of an ongoing investigation and
disciplinary action [and] [t]herefore none of the materials were segregable" is insufficient
"to establish that there were no segregable portions"); Ctr. for Biological Diversity v. OMB,
No. 07-4997, 2008 WL 5129417, at *9 (N.D. Cal. Dec. 4, 2008) (requiring agency to provide
more particularized affidavits because it used "boilerplate segregability language" to
292

103

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

discussion of summary judgment requirements, see Litigation Considerations, Summary
Judgment, below.) Moreover, if the lower court initially failed to make a segregability
finding, the court of appeals has at times remanded the matter to the district court. 293
This has happened even where the court of appeals ruled for the agency with respect to
the substantive application of the FOIA exemptions. 294 Nevertheless, the appellate court
can elect to make the segregation determinations itself. 295 (For a discussion of document
describe records and failed to document any "inability on its part to parse records, such that
incomplete segments of records would be rendered meaningless if disclosed"); United Am.
Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 41 (D.D.C. 2008) (determining that agency's
conclusory assertions of segregability are not sufficient because they fail to explain "why
purely factual material in the public domain . . . is not reasonably segregable"); Pa. Dep't of
Pub. Welfare v. HHS, No. 05-1285, 2006 WL 3792628, at *17 (W.D. Pa. Dec. 21, 2006)
(concluding that agency's declaration is too broad and fails to provide factual recitation as to
segregability); Nat'l Res. Def. Council v. DOD, 388 F. Supp. 2d 1086, 1106 (C.D. Cal. 2005)
(finding that segregability analysis is not met based on a "boilerplate statement . . . , which
conclusorily asserts [that] all reasonably segregable information has been released"); Gavin
v. SEC, No. 04-4522, 2005 WL 2739293, at *4 (D. Minn. Oct. 24, 2005) (ordering agency to
provide detailed affidavits as record is insufficient to enable determination as to whether
agency has sustained its burden of reasonable segregability), reconsideration denied, 2006
WL 208783 (D. Minn. Jan. 26, 2006).
See Waterman v. IRS, 755 Fed.Appx. 26, 28 (2019) (holding that "[a] district court
'clearly errs when it approves the government's withholding of information under the FOIA
without making an express finding on segregability' (quoting PHE Inc. v. Dep't of Justice,
983 F.2d 248, 252 (D.C. Cir. 1993)); Hamdan v. DOJ, 797 F.3d 759, 779 (9th Cir. 2015)
(finding reversible error and remanding where district court "approve[d] the withholding of
a document without a segregability finding"); Callaway v. Dep't of Treasury, No. 08-5480,
2009 U.S. App. LEXIS 11941, at *5 (D.C. Cir. June 2, 2009) (per curiam) (remanding where
"[t]here was insubstantial support for the district court's determination that the government
has withheld only exempt material . . . [and] [t]he government's affidavits state only legal
conclusions regarding segregability"); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116
(D.C. Cir. 2007) (explaining that if district court approves agency's withholdings without
making finding of segregability, then "remand is required even if the requester did not raise
the issue of segregability before the court").
293

See James Madison Project v. NARA, No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir.
Oct. 11, 2002) (per curiam) (remanding, despite ruling in favor of the government on
exemptions, for "more precise finding" on segregability).
294

Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008) (determining that district court's failure
to address segregability was "reversible error," yet concluding that, based on its review of
agency affidavits, "no part of the requested documents was improperly withheld" and
accordingly finding that no remand was necessary); Carpenter v. DOJ, 470 F.3d 434, 443
(1st Cir. 2006) (concluding that, although district court failed to find expressly that there
were no reasonably segregable portions, district court's in camera inspection afforded it an
opportunity to make this determination); Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994)
(finding remand unnecessary because judge "did not simply rely on IRS affidavits describing
the documents, but conducted an in camera review").
295

104

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

segregation at the administrative level, see Procedural Requirements, "Reasonably
Segregable" Obligation, above.)
In Camera Inspection
The FOIA specifically authorizes in camera examination of documents, 296
however, district courts have "broad discretion" to decide if this type of review "is
necessary to determine whether the government has met its burden." 297 Courts typically
exercise their discretionary authority to order in camera inspection in exceptional, rather
than routine, cases because such review circumvents the adversarial process and may be
burdensome for the court to conduct. 298

See 5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017); see also S. Conf. Rep. No. 93-1200, at
9 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6287.
296

Loving v. DOD, 550 F.3d 32, 41 (D.C. Cir. 2008) (citing Armstrong v. Exec. Off. of the
President, 97 F.3d 575, 577-78 (D.C. Cir. 1996)); see NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 224 (1978) ("The in camera review provision is discretionary by its terms[.]");
Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (finding that "the district court, after
reviewing in camera the FBI's classified declaration, acted within its sound discretion when
it decided that it did not need to review the classified document in camera to conclude that
the FBI withheld it as properly classified"); Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)
(finding that "case law has rejected the argument that district courts are required to conduct
in camera review in FOIA cases"); Larson v. Dep't of State, 565 F.3d 857, 869-70 (D.C. Cir.
2009) (noting that "[i]n camera review is available to the district court if the court believes
it is needed 'to make a responsible de novo determination on the claims of exception'");
Peltier v. FBI, 563 F.3d 754, 759 (8th Cir. 2009) (same); Rein v. U.S. Patent & Trademark
Off., 553 F.3d 353, 377 n. 34 (4th Cir. 2009) (same); Juarez v. DOJ, 518 F.3d 54, 60 (D.C.
Cir. 2008) ("If a district court believes that in camera inspection is unnecessary 'to make a
responsible de novo determination on the claims of exemption,' it acts within its 'broad
discretion' by declining to conduct such a review.") (citations omitted); Halpern v. FBI, 181
F.3d 279, 295 (2d Cir. 1999) (noting that in camera "review would have been appropriate,"
but leaving this to "the trial court's discretion on remand"), on remand, No. 94-365A, 2002
WL 31012157, at *14 (W.D.N.Y. Aug. 31, 2002) (magistrate's recommendation) (denying
plaintiff's motion for in camera inspection), adopted, (W.D.N.Y. Oct. 17, 2002); Jernigan v.
Dep't of the Air Force, 163 F.3d 606, 606 n.3 (9th Cir. 1998) ("Section 552(a)(4)(B)
empowers, but does not require, a district court to examine the contents of agency records
in camera") (unpublished table decision); Parsons v. FOIA Officer, 121 F.3d 709, 709 (6th
Cir. 1997) (explaining that district court has discretion to conduct in camera inspection, but
that it is neither "favored nor necessary" so long as adequate factual basis for decision
exists) (unpublished table decision); Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993)
(holding that in camera review "is discretionary and not required, absent an abuse of
discretion").
297

See, e.g., Robbins Tire, 437 U.S. at 224 (explaining that in camera review provision "is
designed to be invoked when the issue before the District Court could not be otherwise
resolved"); Ctr. for Biological Diversity v. Office of the U.S. Trade Rep., 450 F. App'x 605,
298

105

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

In camera review is generally not necessary when agencies meet their burden of
proof by means of sufficiently detailed affidavits. 299 However, when agency affidavits are
608 (9th Cir. 2011) (reiterating that "'resort to in camera review is appropriate only after the
government has submitted as detailed public affidavits and testimony as possible'" (quoting
Weiner v. FBI, 943 F.2d 972, 979 (9th Cir. 1991))); Larson, 565 F.3d at 870 (noting that "[i]f
the agency's affidavits 'provide specific information sufficient to place the documents within
the exemption category, if this information is not contradicted by the record, and there is no
evidence in the record of agency bad faith, then summary judgment is appropriate without
in camera review of the documents'" (quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.
Cir. 1979))); Mo. Coal. v. U.S. Army Corp. of Eng'rs, 542 F.3d 1204, 1210 (8th Cir. 2008)
(stating that "'in camera inspection should be limited as it is contrary to the traditional role
of deciding issues in an adversarial context upon evidence produced in court'" (quoting
Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir. 1980))) (internal quotations and citation
omitted); Lane v. Dep't of the Interior, 523 F.3d 1128, 1136 (9th Cir. 2008) ("In camera
inspection is 'not a substitute for the government's burden of proof, and should not be
resorted to lightly,' due to the ex parte nature of the process and the potential burden placed
on the court." (quoting Church of Scientology v. Dep't of Army, 611 F.2d 738, 743 (9th Cir.
1979))); Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994) (noting that the Court of Appeals for
the Sixth Circuit has previously "suggested that in camera review is disfavored because it
circumvents the adversarial process") (citing Vaughn v. United States, 936 F.2d 862, 866
(6th Cir. 1991)); PHE, Inc., 983 F.2d at 252-53 (observing that in camera review is generally
disfavored, but permissible on remand arising from inadequate affidavit); Currie v. IRS, 704
F.2d 523, 530 (11th Cir. 1983) ("Thorough in camera inspection of the withheld documents
where the information is extensive and the claimed exemptions are many . . . is not the
preferred method of determining the appropriateness of the government agency's
characterization of the withheld information."); Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir.
1978) ("In camera inspection requires effort and resources and therefore a court should not
resort to it routinely on the theory that 'it can't hurt.'").
See, e.g., Life Extension Found., Inc. v. IRS, 559 F. App'x 3, 3 (D.C. Cir. 2014) (finding
that district court did not abuse its discretion in declining to order in camera review where
"affidavits sufficiently described the material withheld"); Hull v. IRS, 656 F.3d 1174, 1196
(10th Cir. 2011) (determining that district court did not abuse its discretion in declining to
order in camera review where agency demonstrated with "reasonable specificity" why
records were exempt, and plaintiffs have not established bad faith); Wilner v. NSA, 592 F.3d
60, 76 (2d Cir. 2009) (holding in camera review not necessary where NSA's affidavits
"sufficiently allege the necessity of the Glomar response"); Larson, 565 F.3d at 870
(concluding that district court did not abuse its discretion in declining to view withheld
records or classified declaration where agency's public submissions were adequate); Mo.
Coal., 542 F.3d at 1210 (finding that in camera review not necessary because agency
affidavits and Vaughn Index contained sufficient detail); Juarez, 518 F.3d at 60 (concluding
that when district court determined that agency affidavits "properly placed the withheld
documents within the scope of Exemption 7(A)," it did not need to reach the question of in
camera review); Nowak v. United States, 210 F.3d 384, 384 (9th Cir. 2000) (finding in
camera review unnecessary where affidavits were sufficiently detailed) (unpublished table
decision); Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992) (rejecting in camera inspection
when affidavits and Vaughn Indices were sufficiently specific); Silets v. DOJ, 945 F.2d 227,
299

106

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

insufficiently detailed to permit meaningful review, in camera review remains an option
available to courts to evaluate agency exemption claims. 300
The District Court of the District of Columbia has noted that in camera review "may
be appropriate" when "'the number of records involved is relatively small,'" "'a
discrepancy exists between an agency's affidavit and other information that the agency
has publicly disclosed,'" and "'when the dispute turns on the contents of the documents,
and not the parties' interpretations of the documents.'" 301 Additionally, in cases involving

229-32 (7th Cir. 1991) (en banc) (same); Vaughn, 936 F.2d at 869 (finding in camera review
"neither favored nor necessary where other evidence provides adequate detail and
justification").
See, e.g., Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160, 1166 (9th Cir. 2011) ("If
the [agency's] affidavits are too vague, the court 'may examine the disputed documents in
camera to make a first hand determination of their exempt status.'"); Spirko v. USPS, 147
F.3d 992, 997 (D.C. Cir. 1998) ("If the agency fails to provide a sufficiently detailed
explanation to enable the district court to make a de novo determination of the agency's
claims of exemption, the district court then has several options, including inspecting the
documents in camera."); Quiñon v. FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996) ("[W]here an
agency's affidavits merely state in conclusory terms that documents are exempt from
disclosure, an in camera review is necessary."); In re DOJ, 999 F.2d 1302, 1310 (8th Cir.
1993) (en banc) ("If the [Vaughn Index] categories remain too general, the district court
may also examine the disputed documents in camera to make a first hand determination.");
City of Va. Beach v. Dep't of Commerce, 995 F.2d 1247, 1252 n.12 (4th Cir. 1993) ("By
conducting an in camera review, the district court established an adequate basis for its
decision."); Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988)
("[W]here a trial court properly reviewed contested documents in camera, an adequate
factual basis for the decision exists.").
300

People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284, 307 (D.D.C.
2007) (quoting Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005));
accord Quiñon, 86 F.3d at 1228 (suggesting that number of documents is "another . . . factor
to be considered" when determining whether in camera review is appropriate); Maynard v.
CIA, 986 F.2d 547, 558 (1st Cir. 1993) ("In camera review is particularly appropriate when
the documents withheld are brief and limited in number."); see also Elec. Privacy Info. Ctr.
v. DOJ, 584 F. Supp. 2d 65, 82-83 (D.D.C. 2008) (stating that in camera review is
appropriate where agency affidavits are deficient with respect to segregability analysis and
relatively few number of documents are at issue); Cole v. DOJ, No. 05-674, 2006 WL
2792681, at *5 (D.D.C. Sept. 27, 2006) (stating that in camera review is appropriate when
"the affidavit is 'insufficiently detailed to permit meaningful review of exemption claims' . . .
where there is evidence of bad faith on the part of the agency, or where the judge wishes to
resolve an uneasiness about the government's 'inherent tendency to resist disclosure'")
(citations omitted); Dean v. FDIC, 389 F. Supp. 2d 780, 789 (E.D. Ky. 2005) (stating that
following factors should be considered when determining whether in camera review is
appropriate: "'(1) judicial economy; (2) actual agency bad faith, either in the FOIA action or
in the underlying activities that generated the records requested; (3) strong public interest;
301

107

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

a large number of documents, the court may conduct in camera review of a smaller
subset. 302
In camera review has also been utilized to evaluate whether the government waived
its right to claim an exemption, 303 properly invoked a privilege, 304 or withheld
information that was publicly available. 305 Further, in camera inspection has been used

and (4) whether the parties request in camera review'" (quoting Rugiero v. DOJ, 257 F.3d
534, 543 (6th Cir. 2001))).
See, e.g., Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 393 n.16 (D.C. Cir. 1987)
(suggesting that for voluminous documents, "selective inspection of . . . documents [is] often
an appropriate compromise"); Dickstein Shapiro LLP v. DOD, 730 F. Supp. 2d 6, 10 (D.D.C.
2010) (ordering in camera review of representative sample of five percent of responsive
records to be chosen by both parties that "fairly and equally represent the particular FOIA
exemptions at issue"); N.Y. Pub. Interest Res. Group v. EPA, 249 F. Supp. 2d 327, 331
(S.D.N.Y. 2003) (discussing fact that in camera review was conducted of representative
sample of documents); Wilson v. CIA, No. 89-3356, 1991 WL 226682, at *3 (D.D.C. Oct. 15,
1991) (ordering fifty-document sample of approximately 1000 pages withheld in whole or in
part, selected equally by parties, for in camera examination); Wilson v. DOJ, No. 87-2415,
1991 WL 120052, at *4 (D.D.C. June 18, 1991) (requiring sample of eight of approximately
eighty withheld documents, to be selected equally by each side, for detailed in camera
description).
302

See, e.g., Tigue v. DOJ, 312 F.3d 70, 82 (2d Cir. 2002) (concluding, following in camera
inspection, that "even the limited factual material admittedly in the public domain is too
intertwined with evaluative and policy decisions to require disclosure"); ACLU v. DOJ, No.
12-794, 2015 WL 4470192, at *15 (S.D.N.Y. July 16, 2015) (finding that because "[i]t is not
possible to ascertain whether the privileges with respect to some, or all, of [the documents]
have been wavied . . . the court orders in camera review of these documents"), aff'd in
pertinent part & remanded on other grounds, 844 F.3d 126 (2d Cir. 2016).
303

See, e.g., McKinley v. Fed. Housing Fin. Agency, 789 F. Supp. 2d 85, 89-90 (D.D.C. 2011)
(ordering agency to submit two documents for in camera review in order to ascertain
applicability of attorney work-product privilege).
304

See, e.g., Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (conducting in camera review to
determine whether withheld information has been revealed in publicly available report
published by agency).
305

108

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

to verify that an agency has released all reasonably segregable information, 306 and to
ascertain whether a district court properly ruled on the merits of a case. 307
Although mere allegations of bad faith have been found to be insufficient to justify
use of in camera inspection, 308 the Court of Appeals for the District of Columbia Circuit
has noted that such review may be appropriate if there were evidence of bad faith. 309 In
See, e.g., ACLU v. DOD, 543 F.3d 59, 85 (2d Cir. 2008) (noting that district court
conducted in camera review of photographs in order to ensure the adequacy of proposed
redactions), vacated on other grounds, 130 S. Ct. 777, 777 (2009); Allard K. Lowenstein Int'l
Hum. Rts. Project v. DHS, 603 F. Supp. 2d 354, 360-61 (D. Conn. 2009) (determining that,
based on in camera review, agency's applications of exemptions was appropriate and "there
is no further reasonably segregable portion of any document at issue beyond which the
Court has ordered disclosed"), aff'd, 626 F.3d 678 (2d Cir. 2010); Jefferson v. DOJ, No. 011418, slip op. at 31 n.13 (D.D.C. Mar. 31, 2003) (deciding to hold in abeyance segregability
determination for documents claimed to be exempt on basis of Exemption 5 of the FOIA
until in camera inspection is completed); Citizens Progressive Alliance v. U.S. Bureau of
Indian Affs., 241 F. Supp. 2d 1342, 1359 (D.N.M. 2002) (noting that "all segregable portions
of the documents have been released," a finding verified by in camera inspection).
306

See, e.g., FlightSafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 612 (5th Cir. 2003)
(per curiam) (affirming district court's judgment after reviewing documents in camera); Tax
Analysts v. IRS, 294 F.3d 71, 73 (D.C. Cir. 2002) (same).
307

See Mobley, 806 F.3d at 588 (concluding that district court did not abuse its discretion
by failing to conduct in camera review of classified documents where plaintiff did not show
agency affidavits were insufficient and did not offer evidence of bad faith); ACLU v. DOD,
628 F.3d 612, 627 (D.C. Cir. 2011) (finding plaintiff's "claim that the government acted in
bad faith . . . meritless" and concluding, on that basis, that "district court did not abuse its
discretion by granting the government's motion for summary judgment without conducting
in camera review"); Rugiero v. DOJ, 257 F.3d 534, 547 (6th Cir. 2001) (finding that
requester failed to demonstrate "strong evidence of bad faith that calls into question the
district court's decision not to conduct an in camera review"); Ford v. West, 149 F.3d 1190,
1190 (10th Cir. 1998), ("'[M]ere allegations of bad faith' should not 'undermine the
sufficiency of agency submissions.'" (quoting Minier v. CIA, 88 F.3d 796, 803 (9th Cir.
1996))) (unpublished table decision); Silets, 945 F.2d at 231 (finding mere assertion, as
opposed to actual evidence, of bad faith on part of agency insufficient to warrant court's in
camera review); Hall v. CIA, 881 F. Supp. 2d 38, 75 (D.D.C. 2012) (declining to conduct in
camera review even though plaintiff cited two instances of inadequate segregability because
"[w]hen thousands upon thousands of pages of records are involved, it is inevitable that
some unnecessary redactions will be made" and given that they are "minor" and there is no
evidence of bad faith, in camera review is not necessary); Askew v. United States, No. 05200, 2006 WL 3307469, at *7 (E.D. Ky. Nov. 13, 2006) (holding that "the plaintiff has not
overcome the presumption of good faith attending the Vaughn Index and, thus, . . . a
wholesale in camera inspection of the documents is not necessary").
308

See Quiñon, 86 F.3d at 1228 (observing that "in camera review may be particularly
appropriate when either the agency affidavits are insufficiently detailed to permit
309

109

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

camera inspection has also been undertaken based upon concerns regarding the
underlying activities described in the documents. 310
Finally, courts have permitted agencies leave to file in camera declarations once
they have created as complete a public record as possible by means of their court
submissions. 311 However, the D.C. Circuit has noted that in camera declarations are
meaningful review of exemption claims or there is evidence of bad faith on the part of the
agency").
See Jones, 41 F.3d at 242-43 (reviewing, at request of both parties, documents compiled
as part of FBI's widely criticized COINTELPRO operations during 1960s and 1970s because
of "evidence of bad faith or illegality with regard to the underlying activities which
generated the documents at issue"); Habeas Corpus Res. Ctr. v. DOJ, No. 08-2649, 2008
WL 5000224, at *1 (N.D. Cal. Nov. 21, 2008) (reviewing documents in camera where
plaintiff alleged that "certain interests may have been permitted to exercise undue influence
over the development of [a] regulation"); Hiken v. DOD, 521 F. Supp. 2d 1047, 1055-56
(N.D. Cal. 2007) (ordering in camera review to supplement agency declaration because
"while the record does not support a finding of bad faith . . . defendants' underlying
activities with respect to Iraq and the accuracy of government disclosures about activities in
Iraq is sufficient to raise questions in the mind of the public as to the defendant's good faith
or lack thereof"); see also Summers v. DOJ, 140 F.3d 1077, 1085 (D.C. Cir. 1998) (urging
district court on remand to undertake in camera review of "Official and Confidential" files of
former FBI Director J. Edgar Hoover "to fully understand the enormous public interest in
these materials"). But see, e.g., Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 125
(D.C. Cir. 1999) (holding that alleged "evidentiary discrepancies" identified in published
materials concerning highly publicized suicide of a former Deputy White House Counsel
was not evidence of bad faith warranting in camera review of death-scene and autopsy
photographs).
310

See, e.g., Agrama v. IRS, No. 17-5270, 2019 WL 2064505, at *2 (D.C. Cir. Apr. 19, 2019)
(holding that district court acted within its discretion in finding good cause for
permitting ex parte submissions because "requiring the IRS to produce further 'public
justification would threaten to reveal the very information for which a FOIA exemption is
claimed'" (quoting Lykins v. U.S. Dep't of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984)));
Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1083 (9th Cir. 2004) (holding that "resort to in
camera review is appropriate only after [agency] has submitted as much detail in the form of
public affidavits and testimony as possible"); Elec. Privacy Info. Ctr. v. DEA, 14-317, 2019
WL 3592656, at *5 (D.D.C. Aug. 9, 2019) (finding in camera inspection appropriate after "a
redacted version of [defendant's] declaration was filed on the public docket, and this
redacted version explains the justifications for why the DEA submitted it in camera"); Pub.
Citizen v. Dep't of State, 100 F. Supp. 2d 10, 27 (D.D.C. 2000) (explaining that "[w]hile . . .
in camera declarations are disfavored as a first line of defense," the agency had already
submitted "three public declarations" amounting to a "threshold showing on the public
record"), aff'd in pertinent part & rev'd in part on other grounds, 276 F.3d 674 (D.C. Cir.
2002); see also Jarvik v. CIA, 741 F. Supp. 2d 106, 111-13 (D.D.C. 2010) (permitting agency
leave to file in camera Vaughn declaration where court "cannot meaningfully review the
defendant's actions based on the current public record and the CIA cannot provide further
information on the public record" due to national security concerns); Barnard v. DHS, 598
311

110

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

generally "disfavored." 312 Regardless of whether the court inspects documents or receives
testimony in camera, however, courts have found that counsel for the plaintiff ordinarily
are not entitled to participate in these in camera proceedings. 313
Summary Judgment
Summary judgment is the procedural vehicle by which nearly all FOIA cases are
resolved, 314 because "in FOIA cases there is rarely any factual dispute . . . only a legal
F. Supp. 2d 1, 16-17 (D.D.C. 2009) (explaining that court granted leave to submit in camera
affidavit where agency could not release any additional information about investigation
without revealing precise information that it sought to withhold); cf. Pub. Citizen Health
Res. Group v. Dep't of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978) (ruling that district court
should not have refused to examine affidavit proffered in camera in an Exemption 6 case,
because affidavit was "the only matter available . . . that would have enabled [the court] to
properly decide de novo the propriety of" the agency's exemption claim); cf. Armstrong, 97
F.3d at 580 (holding that district court "must both make its reasons for [relying on an in
camera declaration] clear and make as much as possible of the in camera submission
available to the opposing party" (citing Lykins, 725 F.2d at 1465)); Phillippi v. CIA, 546 F.2d
1009, 1013 (D.C. Cir. 1976) (requiring "as complete a public record as is possible" before
examining classified affidavits in camera).
312

Armstrong, 97 F.3d at 580-81.

See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1040 (7th Cir. 1998) ("[T]he
general rule is that counsel are not entitled to participate in in camera FOIA proceedings.");
Arieff v. Dep't of Navy, 712 F.2d 1462, 1470-71 & n. 2 (D.C. Cir. 1983) (prohibiting
participation by plaintiff's counsel even when information withheld was personal privacy
information); Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983) (finding no reversible error
when court not only reviewed affidavit and documents in camera, but also received
authenticating testimony ex parte); Salisbury v. United States, 690 F.2d 966, 973 n. 3 (D.C.
Cir. 1982) (finding no error "in the decision of the District Court to exclude appellant's
counsel from the ex parte proceedings"); Weberman v. NSA, 668 F.2d 676, 678 (2d Cir.
1982) (holding District Court "was correct in following our directions and excluding counsel
from the in camera viewing.").
313

See World Publ'g Co. v. DOJ, 672 F.3d 825, 832 (10th Cir. 2012) ("In general FOIA cases
are resolved on summary judgment"); Miccosukee Tribe of Indians of Fla. v. United States,
516 F.3d 1235, 1243 (11th Cir. 2008) ("'Generally, FOIA cases should be handled on motions
for summary judgment, once the documents at issue are properly identified.'" (quoting
Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993))); Wickwire Gavin, P.C. v. USPS, 356 F.3d
588, 591 (4th Cir. 2004) (declaring that FOIA cases are generally resolved on summary
judgment); Cooper Cameron Corp. v. Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002)
("Summary judgment resolves most FOIA cases."); Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009) ("FOIA cases are typically and appropriately decided on motions for
summary judgment."); Raytheon Aircraft Co. v. U.S. Army Corps of Eng'rs, 183 F. Supp. 2d
1280, 1283 (D. Kan. 2001) ("FOIA cases . . . are especially amenable to summary judgment
because the law, rather than the facts, is the only matter in dispute."); Sanderson v. IRS, No.
314

111

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

dispute over how the law is to be applied to the documents at issue." 315 Motions for
summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure,
which provides, in part, that summary judgment shall be granted "if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." 316
Courts have held that "summary judgment is available to a defendant agency where
'the agency proves that it has fully discharged its obligations under the FOIA, after the
underlying facts and the inferences to be drawn from them are construed in the light most
favorable to the FOIA requester.'" 317 The FOIA provides that in litigation, the agency has
the burden of justifying nondisclosure. 318 Agencies typically meet their burden by
submitting detailed affidavits or declarations 319 that identify the documents at issue and
explain why they fall under the claimed exemptions. 320 Relatedly, a defendant agency
98-2369, 1999 WL 35290, at *2 (E.D. La. Jan. 25, 1999) (observing that summary judgment
is the usual means for disposing of FOIA cases).
Gray v. Sw. Airlines, Inc., 33 F. App'x 865, 869 n.1 (9th Cir. 2002) (citing Schiffer v. FBI,
78 F.3d 1405, 1409 (9th Cir. 1996)) (non-FOIA case); see Yonemoto v. VA, 686 F.3d 681,
688 (9th Cir. 2012).
315

Fed. R. Civ. P. 56(a); see, e.g., Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir.
1988) (concluding that agency's affidavit "discharged its burden and that no genuine issue
of material fact was presented"); Milton v. DOJ, 596 F. Supp. 2d 63, 66-67 (D.D.C. 2009)
(granting defendant's motion for summary judgment on basis that there is no genuine issue
of material fact because plaintiff failed to dispute any of defendant's factual assertions);
Kuffel v. BOP, 882 F. Supp. 1116, 1122 (D.D.C. 1995) (holding that plaintiff's disagreement
with application of exemptions does not constitute dispute as to material facts precluding
summary judgment "because he does not put forth any facts to prove that they were
wrongfully applied").
316

Mo. Coal. v. U.S. Army Corp. of Eng'rs, 542 F.3d 1204, 1209 (8th Cir. 2008) (citing Miller
v. Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985)); see Media Res. Ctr. v. DOJ, 818 F.
Supp. 2d 131, 137 (D.D.C. 2011) (same).
317

See 5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017); see DOJ v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989); Campaign for Responsible Transplantation
v. FDA, 511 F.3d 187, 190 (D.C. Cir. 2007); Wishart v. Comm'r, 199 F.3d 1334, 1334 (9th Cir.
1999) (unpublished table decision).
318

See 28 U.S.C. § 1746 (2019) (providing for use of unsworn declarations under penalty of
perjury); see also, e.g., Carney v. DOJ, 19 F.3d 807, 812 n.1 (2d Cir. 1994), cert. denied, 513
U.S. 823 (1994); Summers v. DOJ, 999 F.2d 570, 572-73 (D.C. Cir. 1993).
319

See, e.g., ACLU v. DOJ, 681 F.3d 61, 69 (2d Cir. 2012); ACLU v. DOD, 628 F.3d 612, 619
(D.C. Cir. 2011); Wilner v. NSA, 592 F.3d 60, 73 (2d Cir. 2009); Berman v. CIA, 501 F.3d
1136, 1140 (9th Cir. 2007).
320

112

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

that has referred records to an originating agency for processing ordinarily satisfies its
obligation by including with its own court submissions declarations from those
originating agencies which address any withholdings made in the referred records. 321
(For a further discussion of agency referral and consultation practices, see Procedural
Requirements, Consultations and Referrals, above.) Summary judgment may be granted
solely on the basis of agency affidavits if they are clear, specific, reasonably detailed,
describe the withheld information in a factual and nonconclusory manner, and there is
no contradictory evidence on the record or evidence of agency bad faith. 322 By contrast,
when agency declarations are not sufficiently detailed, courts have denied summary
judgment. 323 (For a further discussion of Vaughn Indices, see Litigation Considerations,
Vaughn Index, above.)
See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 757 (D.C. Cir. 1990) (noting that CIA asserted
Exemptions 1, 3 and 6 with respect to records referred to it by FBI); Lewis v. DOJ, 867 F.
Supp. 2d 1, 24 (D.D.C. 2011) (denying summary judgment on basis that defendant failed to
account for results of its referral to another agency); King v. DOJ, 772 F. Supp. 2d 14, 20
(D.D.C. 2010) (finding that DEA justified its withholdings with respect to records referred to
it by means of detailed declaration and Vaughn Index); Keys v. DHS, 570 F. Supp. 2d 59,
63-72 (D.D.C. 2008) (evaluating additional submissions from defendant agency showing
how four other agencies processed referred records).
321

See, e.g., ACLU, 681 F.3d at 69; ACLU, 628 F. 3d at 619; L.A. Times Commc'ns v. Dep't of
the Army, 442 F. Supp. 2d 880, 899-900 (C.D. Cal. 2006) (granting summary judgment
based on agency's detailed and nonconclusory declarations, and noting that agency's
position "is not controverted by contrary evidence in the record or any evidence of agency
bad faith"); Lane v. DOJ, No. 02-6555, 2006 WL 1455459, at *11 (E.D.N.Y. May 22, 2006)
(granting summary judgment "because the defendants provide a detailed and nonconclusory affidavit that indicates there is no genuine factual dispute"); Assassination
Archives & Res. Ctr. v. CIA, 177 F. Supp. 2d 1, 8 (D.D.C. 2001) (pointing out that "mere
assertion of bad faith is not sufficient to overcome a motion for summary judgment" (citing
Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979))), aff'd, 334 F.3d 55 (D.C. Cir. 2003);
Barvick v. Cisneros, 941 F. Supp. 1015, 1018 (D. Kan. 1996) (declaring that summary
judgment is available "when the agency offers adequate affidavits establishing that it has
complied with its FOIA obligations").
322

See, e.g., Rein v. U.S. Patent & Trademark Office, 55 F.3d 353, 367-71 (4th Cir. 2009)
(reversing district court's grant of summary judgment with respect to application of
Exemption 5 because Vaughn Index provided an insufficient factual basis); Niagara
Mohawk Power Corp. v. DOE, 169 F.3d 16, 18 (D.C. Cir. 1999) (finding agency affidavits
conclusory and denying summary judgment despite plaintiff's failure to controvert agency
assertions by remaining silent); Kamman v. IRS, 56 F.3d 46, 49 (9th Cir. 1995) (finding that
agency failed to satisfy burden of proof and awarding summary judgment to plaintiff when
agency affidavits "are nothing more than 'conclusory and generalized allegations'");
Lombard v. U.S. Dep't of State, No. 11-2755, 2012 WL 3780455, at *2 (E.D. La. Aug. 31,
2012) (denying agency's motion for summary judgment because "conclusory allegations that
[the defendant] made an appropriate response are insufficient to merit summary relief");
Voinche v. FBI, 46 F. Supp. 2d 26, 30 (D.D.C. 1999) (denying summary judgment when
agency provided conclusory affidavit to support invocation of Exemption 7(A)).
323

113

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The affidavit or declaration of an agency official who is knowledgeable about the
way in which information is processed and is familiar with the documents at issue has
been found to satisfy the personal knowledge requirement for summary judgment
declarations. 324 Similarly, in instances in which an agency's search is challenged, an
affidavit of an agency employee responsible for coordinating the search efforts has been

See, e.g., Spannaus v. DOJ, 813 F.2d 1285, 1289 (4th Cir. 1987) (holding that declarant's
attestation "to his personal knowledge of the procedures used in handling [the] request and
his familiarity with the documents in question" is sufficient); Adamowicz v. IRS, 402 F.
App'x 648, 650 (2d Cir. 2010) (rejecting plaintiff's claim that declaration was based on
hearsay where affiant "maintained supervisory responsibility over the first FOIA request
and worked directly with IRS attorneys . . . the two individuals identified as potentially
having relevant records – to compile and review responsive documents"); Flores v. DOJ,
No. 17-0036, 2019 WL 3491226, at *5 (D.D.C. Aug. 1, 2019) (holding that although
declarants were not personally involved in every part of search, declarations sufficiently
establish declarants' personal knowledge of relevant FOIA procedures and search methods
employed); Inst. for Pol'y Stud. v. CIA, 885 F. Supp. 2d 120, 134 (D.D.C. 2012) (denying
plaintiff's motion to strike portions of agency's declarations for lack of personal knowledge
because "[a] declarant is deemed to have personal knowledge if he has a general familiarity
with the responsive records and procedures used to identify those records and thus is not
required to independently verify the information contained in each responsive record");
Am. Mgmt. Servs., LLC v. Dep't of Army, 842 F. Supp. 2d 859, 867, (E.D. Va. Jan. 23, 2012)
(finding declarant adequate where "it is apparent from [the declarant's] specific averments
regarding personal knowledge, his position in the [agency], his role in this matter, and the
contents of the declaration itself that [he] has personal knowledge of the procedures used in
handling [plaintiff's] request and familiarity with the documents at issue"), aff'd, 703 F.3
724 (4th Cir. 2013); Barnard v. DHS, 598 F. Supp. 2d 1, 19 (D.D.C. 2009) (rejecting
plaintiff's argument that declarations contained inadmissible hearsay, because "FOIA
declarants may include statements in their affidavits based on information that they have
obtained in the course of their official duties"); Gerstein v. DOJ, No. 03-04893, 2005 U.S.
Dist. LEXIS 41276, at *13-14 (N.D. Cal. Sept. 30, 2005) (denying plaintiff's motion to strike
agency's declaration, inasmuch as declarant permissibly included "facts relayed from
individuals who had first-hand knowledge," and because declarant had "first-hand
knowledge of what happens when a court seals a warrant"); Schrecker v. DOJ, 217 F. Supp.
2d 29, 35 (D.D.C. 2002) (rejecting argument that affidavit was hearsay because affiant was
"responsible for the FBI's compliance with FOIA litigation and is therefore not merely
speculating about the FBI activities"), aff'd, 349 F.3d 657 (D.C. Cir. 2003); Avondale Indus.
v. NLRB, No. 96-1227, 1998 WL 34064938, at *3 (E.D. La. Mar. 23, 1998) (holding that
there is no requirement that author of records prepare Vaughn Index); Cucci v. DEA, 871 F.
Supp. 508, 513 (D.D.C. 1994) (finding that declarant "had the requisite personal knowledge
based on her examination of the records and her discussion with a representative of the
[state police]" to attest that information was provided with express understanding of
confidentiality).
324

114

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

found to satisfy the personal knowledge requirement. 325 Likewise, in justifying the
withholding of classified information under Exemption 1, courts have found that the
affiant is required only to possess document-classification authority for the records in
question, not personal knowledge of the particular substantive area that is the subject of
the request. 326 Courts have disregarded legal conclusions contained in agency affidavits
and denied summary judgment in instances where the agency declarant's statements are
conclusory. 327
See, e.g., Carney v. DOJ, 19 F.3d 807, 814 (2d Cir. 1994), aff'g in pertinent part, rev'g &
remanding in part, No. 92-6204, slip op. at 12 (W.D.N.Y. Apr. 27, 1993) ("There is no basis
in either the statute or the relevant case law to require that an agency effectively establish by
a series of sworn affidavits a 'chain of custody' over its search process. The format of the
proof submitted by defendant – declarations of supervisory employees, signed under
penalty of perjury – is sufficient for purposes of both the statute and Fed. R. Civ. P. 56.");
Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993) ("[A]n agency need not submit an
affidavit from the employee who actually conducted the search. Instead, an agency may rely
on an affidavit of an agency employee responsible for supervising the search."); SafeCard
Servs. v. SEC, 926 F.2d 1197, 1202 (D.C. Cir. 1991) (finding that employee "in charge of
coordinating the [agency's] search and recovery efforts [is the] most appropriate person to
provide a comprehensive affidavit"); Nat. Res. Def. Council v. Wright-Patterson AFB, No.
10-3400, 2011 U.S. Dist. LEXIS 85387, at *11-12 (S.D.N.Y. Aug. 3, 2011) (concluding agency
declarants are adequate where declarant supervised searches and processing, and reviewed
administrative appeal); Griffin v. EOUSA, 774 F. Supp. 2d 322, 325 n.4 (D.D.C. 2011)
(rejecting plaintiff's contention that declaration fails to meet "'personal knowledge'
requirement" of Rule 56(c)(4) and finding that declarant "is competent to testify to the
matters at hand" where he supervised search for, and release of, responsive records);
Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517, at *7 (N.D. Cal. Sept. 1, 2010)
(dismissing plaintiff's argument that declarant is inadequate where he supervised FOIA
searches, and "personally reviewed search notes, search slips, and other documentation
regarding search results"); Willis v. DOJ, 581 F. Supp. 2d 57, 66 (D.D.C. 2008) (noting that
agency affidavits "may be submitted by an official who coordinated the search, and need not
be from each individual who participated in the search"); cf. Prison Legal News v. Lappin,
603 F. Supp. 2d 124, 127-28 (D.D.C. 2009) (requiring agency to conduct new search or to
provide new search affidavit when affiant did not "outline search methods undertaken,"
identify "who would have conducted the searches," or "indicate how he is personally aware
of the search procedures or that he knows they were followed by each of [BOP's] entities
tasked with responding to [plaintiff's] request").
325

See Wolf v. CIA, 473 F.3d 370, 375 n.5 (D.C. Cir. 2007) (finding that affidavit reflected
personal knowledge as to "the classified nature of information related to the existence or
nonexistence of records" where affiant held a position on document review panel chaired by
official with original classification authority); Holland v. CIA, No. 92-1233, 1992 WL
233820, at *8-9 (D.D.C. Aug. 31, 1992).
326

See, e.g., Callaway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941,
at *5-6 (D.C. Cir. June 2, 2009) (per curiam) (remanding to district court for further
proceedings where "government's affidavits state only legal conclusions regarding
segregability, and the Vaughn index does not explain why responsive documents containing
327

115

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The Court of Appeals for the District of Columbia Circuit has held that "purely
speculative" claims raised by FOIA plaintiffs are not sufficient to overcome the
presumption of good faith accorded to agency affidavits. 328 The D.C. Circuit has further
held that "a motion for summary judgment adequately underpinned is not defeated
simply by bare opinion or an unaided claim that a factual controversy persists." 329 For
information such as names or administrative codes could not be redacted and released");
Kensington Res. & Recovery v. HUD, 620 F. Supp. 2d 908, 909 n.1 (N.D. Ill. 2009)
(disregarding statements in agency's affidavits that "constitute legal conclusions or do not
relate to HUD business"); Doolittle v. DOJ, 142 F. Supp. 2d 281, 285 n.5 (N.D.N.Y. 2001)
(noting that "[t]he practice of submitting legal arguments through the declaration . . . is
improper, and such arguments will not be considered.").
SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (finding plaintiff's
"purely speculative" claims concerning adequacy of agency's search "support neither the
allegation that [agency's] search procedures were inadequate, nor an inference that it acted
in bad faith"); see, e.g., CareToLive v. FDA, 631 F.3d 336, 345 (6th Cir. 2011) ("'speculation
that the information requested must exist also does not establish that the search was
unreasonable'" (citing Steinburg v. DOJ, 23 F.3d 548, 552 (D.C. Cir. 1994)); In re Wade, 969
F.2d 241, 246 (7th Cir. 1992) ("Without evidence of bad faith, the veracity of the
government's submissions regarding reasons for withholding the documents should not be
questioned."); Hall v. CIA, 881 F. Supp. 2d 38, 62 (D.D.C. 2012) (granting in part agency's
motion for summary judgment, finding that agency not required to search for records that
plaintiffs speculate should have been created because no indication these records actually
were created); Mingo v. DOJ, 793 F. Supp. 2d 447, 452 (D.D.C. 2011) ("An agency's
declarations are 'accorded a presumption of good faith, which cannot be rebutted by purely
speculative claims'" (quoting, in part, SafeCard Servs., 926 F.2d at 1200)); Amnesty Int'l
USA v. CIA, 728 F. Supp. 2d 479, 518 (S.D.N.Y. 2010) (noting that "[o]nce the adequacy of
the Government's affidavits is established, they benefit from a presumption of good faith,
which 'cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents'") (citation omitted); Sephton v. FBI, 365 F. Supp. 2d 91,
97 (D. Mass. 2005) (declaring that plaintiff's evidence "is insufficient to rebut the
presumption of good faith" given to agency's affidavits), aff'd, 442 F.3d 27 (1st Cir. 2006);
Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958, 962 (C.D. Cal. 2003)
("Disagreeing with the [agency's] conclusion [concerning applicability of an exemption] is
not a reason to challenge the Vaughn Index."), appeal dismissed voluntarily, No. 03-55833
(9th Cir. Aug. 26, 2003).
328

Alyeska Pipeline, 856 F.2d at 314; see, e.g., Lee v. U.S. Att'y for the S. Dist. of Fla., 289 F.
App'x 377, 381 (11th Cir. 2008) (determining that district court did not err in granting
summary judgment because plaintiff "failed to show a genuine issue of material fact as to
the reasonableness of the search for responsive records or defendants' good faith in
conducting the search and providing responsive records"); Mace v. EEOC, 197 F.3d 329, 330
(8th Cir. 1999) ("[S]peculative claims about [the] existence of other documents cannot rebut
[the] presumption of good faith afforded [to] agency affidavits." (citing SafeCard Servs., 926
F.2d at 1200)); Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978) ("Conclusory
allegations unsupported by factual data will not create a triable issue of fact."); Span v. DOJ,
696 F. Supp. 2d 113, 119 (D.D.C. 2010) (determining that plaintiff's "boilerplate allegations
329

116

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

example, courts have granted summary judgment when the plaintiff merely raised
unsupported claims that the agency was withholding information that already was in the
public domain. 330
Moreover, courts often take into account an agency's predictive judgment with
respect to potential harm, particularly in cases in which disclosure would compromise
national security. 331 Courts have consistently held that "'a requester's opinion disputing
the risk created by disclosure is not sufficient to preclude summary judgment for the
agency when the agency possessing the relevant expertise has provided sufficiently
detailed affidavits.'" 332

of bad faith do not constitute the 'specific facts' required to threaten the good faith
presumption" (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989))); Hadden v. BOP,
No. 07-8586, 2008 WL 5429823, at *8 (S.D.N.Y. Dec. 22, 2008) (finding that plaintiff's
good faith belief and his conclusory allegations that videotape exists are not sufficient to
withstand defendant's motion for summary judgment); Germosen v. Cox, No. 98-1294, 1999
WL 1021559, at *18-19 (S.D.N.Y. Nov. 9, 1999) (ruling that plaintiff cannot defeat summary
judgment by speculating that further evidence will develop to support his allegations),
appeal dismissed for failure to prosecute, No. 00-6041 (2d Cir. Sept. 12, 2000).
See Grandison v. DOJ, 600 F. Supp. 2d 103, 116-17 (D.D.C. 2009) (finding that plaintiff's
assertions and his production of excerpts of requested records were insufficient to show that
all information at issue was in the public domain and granting agency's motion for summary
judgment); Steinberg v. DOJ, 179 F.R.D. 357, 360 (D.D.C. 1998) (finding that summary
judgment is not defeated "with pure conjecture about the possible content of withheld
information, raising 'some metaphysical doubt as to the material facts'" (quoting Matsushita
Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986))).
330

See ACLU, 681 F.3d at 69 (stating that court has "'consistently deferred to executive
affidavits predicting harm to the national security, and have found it unwise to undertake a
searching judicial review'" (quoting Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 927
(D.C. Cir. 2003))); ACLU, 628 F.3d at 619 ("Because courts 'lack the expertise necessary to
second-guess such agency opinions in the typical national security FOIA case,' . . . we 'must
accord substantial weight to an agency's affidavit concerning the details of the classified
status of the disputed record.'") (citations omitted); Houghton v. NSA, 378 F. App'x 235,
237 (3d Cir. 2010) ("In the context of a national security exemption to disclosure under
FOIA Exemption One, courts 'afford substantial weight to an agency's affidavit concerning
the details of the classified status of the disputed record'").
331

Allnet Commc'n v. FCC, 800 F. Supp. 984, 989 (D.D.C. 1992) (quoting Struth v. FBI, 673
F. Supp. 949, 954 (E.D. Wis. 1987)); see, e.g., ACLU, 628 F.3d at 623-26 (Exemption 1);
Alyeska Pipeline, 856 F.2d at 314 (Exemption 7(A)); Goldberg v. Dep't of State, 818 F.2d 71,
78-79 (D.C. Cir. 1987) (Exemption 1); Spannaus v. DOJ, 813 F.2d at 1289 (Exemption 7(A));
Curran v. DOJ, 813 F.2d 473, 477 (1st Cir. 1987) (Exemption 7(A)); Gardels v. CIA, 689 F.2d
1100, 1106 n.5 (D.C. Cir. 1982) (Exemptions 1 and 3); People for the Am. Way Found. v.
NSA/Cent. Sec. Serv., 462 F. Supp. 2d 21, 33-34 (D.D.C. 2006) (Exemption 1); Edmonds v.
DOJ, 405 F. Supp. 2d 23, 27-30 (D.D.C. 2005) (Exemption 1); Whalen v. U.S. Marine Corps,
332

117

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Additionally, a plaintiff – even one appearing pro se – has been found to have
conceded the government's factual assertions if he fails to contest them, once it is clear
that he understands his responsibility to do so. 333
An agency's failure to respond to a FOIA request in a timely manner does not, by
itself, justify an award of summary judgment to the requester. 334 Summary judgment has
407 F. Supp. 2d 54, 56-59 (D.D.C. 2005) (Exemptions 1 and 3); Kay v. FCC, 867 F. Supp. 11,
20-22 (D.D.C. 1994) (Exemption 7(A)).
See Augustus v. McHugh, 870 F. Supp. 2d 167, 171-73 (D.D.C. 2012) (granting
defendant's motion for summary judgment as conceded where plaintiff failed to challenge
agency's justifications for withholding certain information); Skybridge Spectrum Found. v.
FCC, 842 F. Supp. 2d 65, 77-79 (D.D.C. 2012) (granting FCC's motion for summary
judgment on basis that plaintiff conceded merits of FCC's withholding decisions, but
additionally finding that agency's affidavits were sufficient to support its motion for
summary judgment); Davis v. DOJ, No. 09-0008, 2009 U.S. Dist. LEXIS 69318, *1 (D.D.C.
Aug. 7, 2009) (granting FBI's motion for summary judgment as conceded where court
advised pro se plaintiff of his obligation to file an opposition and warned him of
consequences of failure to do so); Geter v. Sydnor, No. 08-1863, 2009 WL 320322, at *1
(D.D.C. Feb. 9, 2009) (dismissing plaintiff's complaint based on his failure to respond to
defendant's motion to dismiss or for summary judgment and, accordingly, material facts
alleged by defendant are taken as conceded); McNamara v. Nat'l Credit Union Ass'n, 264 F.
Supp. 2d 1, 4 (D.D.C. 2002) (treating as conceded defendant's statement of material facts
because plaintiff filed motion to dismiss without prejudice rather than opposition to
summary judgment motion); Knight v. FDA, No. 95-4097, 1997 WL 109971, at *1 (D. Kan.
Feb. 11, 1997) (accepting as "reasonable and fair" agency's processing of plaintiff's request
and granting agency summary judgment "[i]n the absence of any argument from the
plaintiff"); see also Hart v. FBI, No. 94 C 6010, 1995 WL 170001, at *2 (N.D. Ill. Apr. 7,
1995) (holding that "plaintiff has not asserted any facts which convince this Court that the
FBI has any records which relate to him or has failed to conduct an adequate search"), aff'd,
91 F.3d 146 (7th Cir. July 16, 1996) (unpublished table decision); cf. Ruotolo v. IRS, 28 F.3d
6, 8-9 (2d Cir. 1994) (finding that although plaintiffs were generally aware of summary
judgment rules, district court should have specifically notified them of consequences of not
complying with litigation deadlines before dismissing case).
333

See Jacobs v. BOP, 725 F. Supp. 2d 85, 89 (D.D.C. 2010) (ruling that "BOP's untimely
response does not entitle plaintiff to summary judgment in his favor"); Mosby v. Hunt, No.
09-1917, 2010 WL 1783536, at *3 (D.D.C. May 5, 2010) ("Because the Court is authorized
under the FOIA only to resolve whether an agency improperly withheld responsive records,
'however fitful or delayed the release of information under the FOIA may be, once all
requested records are surrendered, federal courts have no further statutory function to
perform.'" (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982))); Schmidt v. Shah,
No. 08-2185, 2010 U.S. Dist. LEXIS 25539, at *29 (D.D.C. Mar. 18, 2010) (noting that "'a
lack of timeliness or compliance with FOIA deadlines does not preclude summary judgment
for an agency, nor mandate summary judgment for the requester'") (citation omitted); Ford
Motor Co. v. U.S. Customs & Border Prot., No. 06-13346, 2008 WL 4899402, at *7 (E.D.
334

118

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

also been granted despite discrepancies in the agency's page counts, particularly when the
agency has processed a voluminous number of pages, so long as the agency has supplied
a "well-detailed and clear" explanation for the differences. 335
Discovery
Discovery is the exception, not the rule, in FOIA cases. 336 The decision to grant
discovery and the conditions under which it is permitted are within the discretion of the
district court. 337 In the limited instances where discovery is determined to be appropriate,
Mich. Aug. 1, 2008) (finding that although agency's response to plaintiff's request was not
timely, "'a lack of timeliness does not preclude summary judgment for an agency in a FOIA
case'" (quoting Hornbostel v. Dep't of Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003))
(magistrate's recommendation)), adopted in pertinent part, 2008 WL 4899401 (E.D. Mich.
Nov. 12, 2008); Tri-Valley CAREs v. DOE, No. 03-3926, 2004 WL 2043034, at *18 (N.D.
Cal. Sept. 10, 2004) ("[A] lack of timeliness does not preclude summary judgment for an
agency in a FOIA case."), aff'd in pertinent part & remanded, No. 04-17232, 2006 WL
2971651 (9th Cir. Oct. 16, 2006); St. Andrews Park, Inc. v. U.S. Dep't of the Army Corps. of
Eng'rs, 299 F. Supp. 2d 1264, 1269 (S.D. Fla. 2003) ("Defendant's exceeding the prescribed
20-day time limit to adjudicate the FOIA denial appeal does not entitle Plaintiffs to
[summary] judgment.").
Master v. FBI, 926 F. Supp. 193, 197-98 (D.D.C. 1996), aff'd 124 F.3d 1309 (D.C. Cir.
1997) (unpublished table decision); see also Am. Mgmt. Servs., LLC, 842 F. Supp. 2d at 870
(finding that errors in Vaughn Index, which were remedied by Army, "are not sufficient
grounds for striking the entire index or questioning the good faith of the Army"), aff'd, 703
F.3 724 (4th Cir. 2013); Piper v. DOJ, 294 F. Supp. 2d 16, 23-24 (D.D.C. 2003) (finding "no
material issue to rebut the Government's good faith presumption in the processing of
[plaintiff's] FOIA request" merely because of "gaps in the serialization of the files"); cf.
McGehee v. DOJ, 800 F. Supp. 2d 220, 237-38 (D.D.C. 2011) (denying, in part, FBI's motion
for summary judgment where Vaughn Index fails to provide specific information about
missing pages and numerous redactions "rendering it impossible" for court to determine
that all reasonably segregable information was disclosed).
335

See, e.g., CareToLive v. FDA, 631 F.3d 336, 345-46 (6th Cir. 2011) ("Claims under the
[FOIA] are typically resolved without discovery on the basis of the agency's affidavits.");
Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (noting that in a FOIA case
"discovery is limited because the underlying case revolves around the propriety of revealing
certain documents"); Heily v. Dep't of Commerce, 69 F. App'x 171, 174 (4th Cir. 2003) (per
curiam) ("It is well-established that discovery may be greatly restricted in FOIA cases.");
Justice v. IRS, 798 F. Supp. 2d 43, 47 (D.D.C. 2011) (noting that "discovery is disfavored" in
FOIA actions), aff'd, 485 F. App'x 439 (D.C. Cir. 2012); Wheeler v. CIA, 271 F. Supp. 2d 132,
139 (D.D.C. 2003) ("Discovery is generally unavailable in FOIA actions").
336

See, e.g., World Publ'g Co. v. DOJ, 672 F.3d 825, 832 (10th Cir. 2012) (noting that "[t]he
decision whether to allow discovery in FOIA cases is largely left to the discretion of the
district court judge"); Lane, 523 F.3d at 1134 (stating that "[a] district court 'has wide
latitude in controlling discovery, and its rulings will not be overturned in absence of a clear
337

119

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

courts ordinarily confine it to the scope of an agency's search, its indexing and
classification procedures, and similar factual matters. 338
abuse of discretion'" (quoting White v. City of San Diego, 605 F.2d 455, 461 (9th Cir.
1979))); Wood v. FBI, 432 F.3d 78, 84-85 (2d Cir. 2005) (recognizing that "[a] district court
has broad discretion to manage pre-trial discovery" (citing Grand Cent. P'ship v. Cuomo,
166 F.3d 473, 488 (2d Cir. 1999))); Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994);
Maynard v. CIA, 986 F.2d 547, 567 (1st Cir. 1993); Gillin v. IRS, 980 F.2d 819, 823 (1st Cir.
1992) (per curiam); N.C. Network for Animals, Inc. v. USDA, 924 F.2d 1052, 1052 (4th Cir.
1991) ("The district court should exercise its discretion to limit discovery in this as in all
FOIA cases, and may enter summary judgment on the basis of agency affidavits when they
are sufficient to resolve issues . . . .") (unpublished table decision); Petrus v. Brown, 833
F.2d 581, 583 (5th Cir. 1987) ("A trial court has broad discretion and inherent power to stay
discovery until preliminary questions that may dispose of the case are determined.");
Meeropol v. Meese, 790 F.2d 942, 960-61 (D.C. Cir. 1986) (same, with respect to broad
district court discretion).
See, e.g., Heily, 69 F. App'x at 174 (explaining that when discovery is permitted, generally
it is "limited to the scope of agency's search and its indexing and classification procedures");
Ruotolo v. DOJ, 53 F.3d 4, 11 (2d Cir. 1995) (holding that discovery on scope of burden that
search would entail should have been granted); Weisberg v. DOJ, 627 F.2d 365, 371 (D.C.
Cir. 1980) (finding discovery appropriate to inquire into adequacy of document search);
Pulliam v. EPA, 292 F. Supp. 3d 255, 260-61 (D.D.C. 2018) (allowing limited discovery to
resolve discrepancy between between prior declarations which stated only email records
were searched and fourth declaration which stated that all electronic records were
searched); Jett v. FBI, 241 F. Supp. 3d 1, 14 (D.D.C. 2017) (granting discovery request for
"limited purpose of determining whether the FBI has the capability of simultaneously
searching for records in the CRS and ELSUR indices"); Carr v. NLRB, No. 2:12-0871, 2012
WL 5462751, at *4 (S.D. W.Va. Nov. 8, 2012) (finding that "[i]n the unusual case when
discovery has been allowed it is often limited to the agency's search, indexing and
classification procedures"); Raher v. BOP, No. 09-526, 2012 WL 2721613, at *2-3 (D. Or.
July 2, 2012) (permitting discovery to probe "applicable records retention policies" and
agency's compliance with such policies where agency admitted to practice of routinely
destroying employees' emails following their departures); Citizens for Resp. & Ethics in
Wash. v. VA, 828 F. Supp. 2d 325, 334 (D.D.C. 2011) (approving deposition of two VA
employees for "purpose of determining whether the explanation for the [potential improper
destruction of responsive records] is document destruction, incompetence, or something in
between"), reconsideration denied, 69 F. Supp. 3d 115 (D.D.C. 2014); Families for Freedom
v. U.S. Customs & Border Protect., 837 F. Supp. 2d 331, 336-37 (S.D.N.Y. 2011) (granting
plaintiff's request for discovery without showing of bad faith because there was evidence in
record that agency had not performed adequate search); El Badrawi v. DHS, 583 F. Supp. 2d
285, 299-301 (D. Conn. 2008) (permitting limited discovery where agency failed to
adequately describe general scheme of its file system and did not explain why it chose to
search only one database and not others); Kozacky & Weitzel, P.C. v. United States, No. 072246, 2008 WL 2188457, at *7 (N.D. Ill. Apr. 10, 2008) (directing agency to answer several
of plaintiff's interrogatories concerning nature and adequacy of its search); Citizens for
Responsibility & Ethics in Wash. v. DOJ, No. 05-2078, 2006 WL 1518964, at *3-6 (D.D.C.
June 1, 2006) (granting plaintiff's motion for discovery in form of time-limited depositions
because plaintiff raised sufficient question of bad faith on part of government to "warrant
338

120

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Discovery generally is not available "where an agency's declarations are reasonably
detailed, submitted in good faith and the court is satisfied that no factual dispute
remains." 339 Unsubstantiated claims that an agency has acted in bad faith, are not

limited discovery for the purpose of exploring the reasons behind [purported] delays in
processing [plaintiff's] FOIA requests"); Judicial Watch, Inc. v. Dep't of Commerce, 127 F.
Supp. 2d 228, 230 (D.D.C. 2000) (permitting depositions to be taken about parameters of
FOIA search); Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 1999 WL 1051963, at
*3 (W.D. Pa. Oct. 12, 1999) (allowing limited discovery "regarding the authenticity and
completeness of the material produced by HHS, as well as the methodology used to compile
it," because plaintiff "'does not know the contents of the information sought and is,
therefore, helpless to contradict the government's description of the information or assist
the trial judge'" (quoting Davin v. DOJ, 60 F.3d 1043, 1049 (3d Cir. 1995))), appeal
dismissed voluntarily, No. 01-1886 (3d Cir. Apr. 24, 2002); Long v. DOJ, 10 F. Supp. 2d
205, 210 (N.D.N.Y. 1998) (finding discovery appropriate to test adequacy of search); Pub.
Citizen Health Research Grp. v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) (holding that
discovery is limited to "investigating the scope of the agency search for responsive
documents, the agency's indexing procedures, and the like"), rev'd, in part, on other
grounds, 185 F.3d 898 (D.C. Cir. 1999); cf. Citizens for Responsibility & Ethics in Wash. v.
DOJ, 298 F. Supp. 3d 151, 156 (D.D.C. 2018) (denying plaintiff's request for discovery "to
provide 'a full record to evaluate the scope of DOJ's obligations under § 552(a)(2)'" because
"[t]o avoid dismissal under Rule 12(b)(6), [plaintiff] must file a complaint – not proposed
discovery – stating a plausible claim to relief").
Schrecker v. DOJ, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff'd, 349 F.3d 657 (D.C. Cir.
2003); see, e.g., Freedom Watch v. NSA, 783 F.3d 1340, 1345 (D.C. Cir. 2015) (affirming
district court's decision to deny discovery as to adequacy of search, on ground that agency's
affidavits were sufficiently detailed); Becker, 34 F.3d at 406 (finding that district court did
not err by granting summary judgment to government without addressing plaintiff's motion
for discovery; explaining that judge "must have been satisfied that discovery was
unnecessary when she concluded that the IRS's search was reasonable and ruled in favor of
the IRS on summary judgment"); Long v. OPM, 692 F.3d 185, 191 (2d Cir. 2012) (holding
that "'discovery relating to the agency's search and the exemptions it claims for withholding
records generally is unnecessary if the agency's submissions are adequate on their face'"
(quoting Carney v. DOJ, 19 F.3d 807, 812 (2d Cir.1994))); Reich v. DOE, 784 F. Supp. 2d 15,
22 (D. Mass. 2011) (denying request for discovery where agency affidavits were "'reasonably
detailed' and 'submitted in good faith'" and plaintiff presented no evidence that declarants
"misled the court or had any motivation to do so"); Schoenman v. FBI, 763 F. Supp. 2d 173,
204 (D.D.C. 2011) (concluding that discovery not warranted where court already affirmed
adequacy of agency's search and its declarations are sufficiently detailed and submitted in
good faith); Reid v. USPS, No. 05-294, 2006 WL 1876682, at *5 (S.D. Ill. July 5, 2006)
(denying discovery because "[d]efendant's submissions are adequate on their face"); Fla.
Immigrant Advoc. Ctr. v. NSA, 380 F. Supp. 2d 1332, 1343 (S.D. Fla. 2005) (denying
discovery because agency's affidavit was "sufficiently detailed, nonconclusory and submitted
in good faith").
339

121

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

sufficient to warrant discovery. 340 Courts likewise have denied discovery when the FOIA
plaintiff failed to demonstrate that the discovery requested will uncover information that
would create a genuine issue of material fact. 341 In fact, even when an agency's
See, e.g., CareToLive, 631 F.3d at 345-46 (concluding that district court did not abuse its
discretion in denying discovery where challenge to FDA's decision to place plaintiff's request
in "complex" track, and claims regarding adequacy of search and pre-request destruction of
records, did not evidence agency bad faith); Wilson v. U.S. Dep't of Transp., No. 10-5295,
2010 WL 5479580, at *1 (D.C. Cir. Dec. 30, 2010) (per curiam) (holding that "[b]ecause
appellant offered no evidence of bad faith to rebut agency's affidavits, he is not entitled to
discovery"); Wood, 432 F.3d at 85 (affirming denial of discovery, and holding that "district
court did not abuse its discretion in finding [plaintiff's conjectural] assertion insufficient to
overcome the government's good faith showing"); Accuracy in Media, Inc. v. Nat'l Park
Serv., 194 F.3d 120, 124 (D.C. Cir. 1999) (upholding denial of discovery based on
"speculative criticism" of agency's search); Grand Cent. P'ship, 166 F.3d at 489 (finding
discovery unwarranted based on plaintiff's "speculation that there must be more
documents" and that agency acted in "bad faith" by not producing them); Jones v. FBI, 41
F.3d 238, 249 (6th Cir. 1994) (finding discovery unwarranted when court was convinced
that agency "has acted in good faith and has properly withheld responsive material";
declaring fact that agency destroyed documents prior to receipt of FOIA request was not
evidence of lack of "good faith"); Military Audit Project v. Casey, 656 F.2d 724, 751 (D.C. Cir.
1981) (affirming trial court's refusal to permit discovery when plaintiffs had failed to raise
"substantial questions concerning the substantive content of the [defendants'] affidavits");
Freedom Watch, Inc. v. NSA, 220 F. Supp. 3d 40, 46 (D.D.C. 2016) (denying motion for
discovery and finding that "'mistakes do not imply bad faith[;]' 'In fact, [an] agency's
cooperative behavior of notifying the Court and plaintiff that it . . . discovered a mistake, if
anything, shows good faith.'"); New York Times Co. v. Treasury, No. 15-5740, 2016 WL
1651867, at *4 (S.D.N.Y. Apr. 26, 2016) (denying plaintiff's motion for discovery to review
defendant's responsiveness determinations, finding "only a weak inference of bad faith, at
best"); Hall v. CIA, 881 F. Supp. 2d 38, 73 (D.D.C. 2012) (denying plaintiff's request for
discovery based on plaintiff's allegation of bad faith in connection with fee assessment,
because "[e]stimating the search fees – especially of such a broad search as that of the
plaintiffs – is no doubt a difficult proposition, and a recalculation of those fees does not
show that the previous estimate was intentionally inaccurate"); Justice v. IRS, 798 F. Supp.
2d 43, 47 (D.D.C. 2011) (concluding plaintiff's speculation that requested record was
"'ordered destroyed'" was not sufficient to establish bad faith, and denying his request for
discovery), aff'd, 485 F. App'x 439 (D.C. Cir. 2012); Exxon Mobil Corp. v. Dep't of the
Interior, No. 09-6732, 2010 WL 4668452, at *7 (E.D. La. Nov. 4, 2010) (rejecting plaintiff's
request to depose agency declarant where "declarations are facially adequate" and plaintiff
has not demonstrated bad faith); Allen v. U.S. Secret Serv., 335 F. Supp. 2d 95, 100 (D.D.C.
2004) (denying discovery because the "[p]laintiff has not established that the affidavits are
incomplete or made in bad faith").
340

See Trentadue v. FBI, 572 F.3d 794, 806-08 (10th Cir. 2009) (reversing district court's
discovery order permitting plaintiff to depose two federal prisoners for purpose of
establishing that FBI maintains responsive records, finding that plaintiff failed to show any
possibility that depositions would produce relevant evidence); Sharkey v. FDA, 250 F. App'x
284, 291 (11th Cir. 2007) (affirming district court's denial of discovery request for
information related to potential market for vaccine in Exemption 4 case where plaintiff
341

122

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

declarations are found to be insufficient, courts often order the submission of
supplemental information rather than resorting to discovery. 342
In addition, courts have denied discovery when a FOIA plaintiff attempts to probe
the agency's "thought processes" for claiming particular exemptions. 343 Moreover,

failed to "state with particularity the facts [which] he believes discovery will reveal [that are]
sufficient to create a genuine issue of material fact"); Jarvik v. CIA, 741 F. Supp. 2d 106, 122
(D.D.C. 2010) (declining to permit plaintiff to depose declarant in order to ascertain his
personal knowledge of search where declarant holds supervisory position overseeing FOIA
requests and therefore is ordinarily deemed to have personal knowledge of search); Asarco,
Inc. v. EPA, No. 08-1332, 2009 WL 1138830, at *2 (D.D.C. Apr. 28, 2009) (finding that
because plaintiff "fails to show how the discovery it seeks is necessary for the resolution of a
genuine issue of material fact as to the adequacy of the agency's search, its motion to engage
in such discovery is denied") (magistrate's recommendation), adopted, (D.D.C. July 15,
2009); Thomas v. HHS, 587 F. Supp. 2d 114, 115 n. 2 (D.D.C. 2008) (noting that discovery is
"an extraordinary procedure in a FOIA action" and denying plaintiff's discovery request on
the basis that he "gives no reason for needing" it); Scarver v. McGlocklyn, No. 05-2775,
2008 WL 686757, at *5 (E.D.N.Y. Mar. 4, 2008) (concluding that discovery was not
warranted where plaintiff "offer[ed] absolutely no facts to support her allegations"); Dinisio
v. FBI, No. 05-6159, 2007 WL 2362253, at *3 (W.D.N.Y. Aug. 16, 2007) (finding discovery
inappropriate where plaintiff's motions "are based on rank speculation and unsupported
assertions, and fail to show how the requested discovery would be likely to demonstrate the
existence of any genuine issue of material fact"); O'Neill v. DOJ, No. 06-0671, 2006 WL
3538991, at *2 (E.D. Wis. Dec. 7, 2006) (denying plaintiff's motion to compel discovery as
information sought is irrelevant to instant FOIA case); Morley v. CIA, No. 03-2545, 2006
WL 280645, at *2 (D.D.C. Feb. 6, 2006) (stating that plaintiff's Rule 56(f) declaration
merely addresses "his and the public's interest in the disclosure of documents relating to the
assassination of President John F. Kennedy, rather than [his] inability to file his opposition
to Defendant's motion for summary judgment," and finding that plaintiff's argument
therefore is not a basis for allowing discovery).
See Beltranena v. Clinton, 770 F. Supp. 2d 175, 187 (D.D.C. 2011) (denying requests for
discovery and in camera review and instead ordering agency to supplement affidavits to
establish that it conducted adequate searches and to provide particularized explanations for
its segregability determinations); Reich v. DOE, 784 F. Supp. 2d 15, 21 (D. Mass. 2011)
(observing that "court generally will request a supplement before ordering discovery");
Jarvik v. CIA, 741 F. Supp. 2d 106, 122 (D.D.C. 2010) ("Even if an agency's affidavits
regarding its search are deficient, courts generally do not grant discovery but instead direct
the agency to supplement its affidavits.").
342

Ajluni v. FBI, 947 F. Supp. 599, 608 (N.D.N.Y. 1996) (explaining that discovery not
permitted into the "thought processes of [the] agency in deciding to claim a particular FOIA
exemption"); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980) (stating that "discovery
is limited to factual disputes . . . [and that] the thought processes of the agency in deciding
to claim a particular FOIA exemption . . . are protected from disclosure").
343

123

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

discovery has been disallowed when a plaintiff seeks to utilize it as a way to uncover the
contents of the withheld documents. 344
Discovery also has not been permitted when a plaintiff attempts to use a FOIA
lawsuit as a means of questioning investigatory action taken by the agency or the

See, e.g., Lane, 523 F.3d at 1135 (noting that "this circuit has affirmed denials of
discovery where, as here, the plaintiff's requests consisted of 'precisely what defendants
maintain is exempt from disclosure to plaintiff pursuant to the FOIA'" (quoting Pollard v.
FBI, 705 F.2d 1151, 1154 (9th Cir. 1983))); Tax Analysts v. IRS, 410 F.3d 715, 722 (D.C. Cir.
2005) (reasoning that "[Appellant's] demand for further inquiry into the substance of the
documents would, if granted, turn FOIA on its head, awarding Appellant in discovery the
very remedy for which it seeks to prevail in the suit"); Local 3, Int'l Brotherhood of Elec.
Workers v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) (finding plaintiff not entitled to
discovery that would be tantamount to disclosure of contents of exempt documents);
Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983) (affirming denial of discovery when
directed to substance of withheld documents at issue); Driggers v. United States, No. 11229, 2011 WL 2883283, at *2 (N.D. Tex. July 18, 2011) (noting that to extent that plaintiff
seeks contents of documents, and opinions and conclusions regarding that information, his
request "far exceeds the limited scope of discovery usually allowed in a FOIA case");
Lawyers' Comm. for Civ. Rts. of S.F. Bay Area v. Dep't of Treasury, 534 F. Supp. 2d 1126,
1137 (N.D. Cal. 2008) (concluding that plaintiff's discovery requests are improper "because
they seek information beyond merely investigating the scope of Treasury's search for
responsive documents and instead seek under the guise of discovery, the same records
which its FOIA requests ostensibly seek"); Johnson v. DOJ, No. 06-1248, 2007 U.S. Dist.
LEXIS 57963, at *4 (W.D. Wis. Aug. 8, 2007) (finding discovery inappropriate because
plaintiff "is seeking to obtain through discovery the very same information he sought to
obtain by virtue of his FOIA request, namely substantive information related to his earlier
trial on drug charges"); Fla. Immigrant Advoc. Ctr., 380 F. Supp. 2d at 1343 (observing that
discovery is impermissible when plaintiff is seeking to obtain "information [that] would not
be available to it under the FOIA and may be classified or otherwise protected by disclosure
by statute").
344

124

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

underlying reasons for undertaking such investigations, 345 or uses discovery "as a fishing
expedition [for] investigating matters related to separate lawsuits." 346
In addition, courts have found "'curtailment of discovery'" appropriate when the
court undertakes an in camera review. 347 Moreover, when discovery is sought prior to the
time the government moves for summary judgment and submits its supporting affidavits
See, e.g., Shannahan v. IRS, 672 F.3d 1142, 1151 (9th Cir. 2012) (affirming district court's
denial of plaintiff's "discovery requests for information concerning the nature and origins of
documents" related to his clients' prosecution for tax fraud); RNR Enters. v. SEC, 122 F.3d
93, 98 (2d Cir. 1997) (finding no abuse of discretion in district court denial of discovery
propounded for "investigative purposes"); Flowers v. IRS, 307 F. Supp. 2d 60, 72 (D.D.C.
2004) (denying plaintiff 's discovery requests which were designed to "investigate the IRS'
motives in selecting her for an audit"); Cecola v. FBI, No. 94 C 4866, 1995 WL 143548, at *3
(N.D. Ill. Mar. 31, 1995) (disallowing deposition concerning factual basis for assertion of
Exemption 7(A), because "there is concern that the subject of the investigation not be
alerted to the government's investigative strategy"); Williams v. FBI, No. 90-2299, 1991 WL
163757, at *3 (D.D.C. Aug. 6, 1991) ("An agency's rationale for undertaking an investigation
of the Plaintiff is not the proper subject of FOIA discovery requests.").
345

Changzhou Laosan Group v. U.S. Customs & Border Prot. Bureau, No. 04-1919, 2005 WL
913268, at *7 (D.D.C. Apr. 20, 2005) (denying plaintiff's request for discovery because "the
purpose of FOIA is not to serve as a tool for obtaining discovery for an administrative
forfeiture proceeding"); see, e.g., Al-Fayed v. CIA, No. 00-2092, slip op. at 17 (D.D.C. Dec.
11, 2000) (terming plaintiff's discovery request "a fishing expedition" and refusing to grant
it), aff'd on other grounds, 254 F.3d 300 (D.C. Cir. 2001); Immanuel v. Sec'y of Treasury,
No. 94-884, 1995 WL 464141, at *1 (D. Md. Apr. 4, 1995) (rejecting discovery that would
constitute "a fishing expedition into all the possible funds held by the Department of [the]
Treasury which may fall within the terms of [plaintiff's] broad FOIA request. Such an
expedition is certainly not going to come at the government's expense when it is evident that
[plaintiff] seeks this information only for his own commercial use."), aff'd on other grounds,
No. 95-1953, 1996 WL 157732 (4th Cir. Apr. 5, 1996); cf. Tannehill v. Dep't of the Air Force,
No. 87-1335, 1987 WL 25657, at *2 (D.D.C. Nov. 12, 1987) (limiting discovery to
determination of FOIA issues, not to underlying personnel decision).
346

Ajluni, 947 F. Supp. at 608 (quoting Katzman v. Freeh, 926 F. Supp. 316, 320 (E.D.N.Y.
1996)); see Laborers' Int'l Union of N. Am. v. DOJ, 772 F.2d 919, 921 (D.C. Cir. 1984)
(finding that "curtailment of discovery" was proper exercise of district court's discretion
where "the court reasonably determined that in camera examination was required of the
sole document being sought by the FOIA requester-litigant in order for the court to make
the substantive determination as to the pertinent statutory exemption's applicability"); Nat'l
Whistleblower Ctr. v. HHS, 903 F. Supp. 2d 59, 71 (D.D.C. Nov. 9, 2012) (finding that
"[p]laintiffs have essentially obtained the discovery they sought because the [c]ourt agreed
to conduct in camera review" and "[h]aving obtained that review, there is nothing else
discovery could offer them"); Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (employing in
camera review, rather than discovery, to resolve inconsistency between representations in
Vaughn Index and agency's prior public statements).
347

125

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

and memorandum of law, courts will frequently deny the request or grant a protective
order staying discovery on the grounds that it is premature. 348
Lastly, courts have held that in appropriate cases the government can conduct
discovery against a FOIA plaintiff. 349
Waiver of Exemptions in Litigation
Because the FOIA directs district courts to review agency actions de novo, 350 an
agency is not barred from invoking a particular exemption in litigation merely because

See, e.g., Lane, 523 F.3d at 1134-35 (holding that district court's "delay of discovery" with
respect to plaintiff's FOIA claim until after summary judgment "was certainly within its
discretion"); Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("The plaintiff's early
attempt in litigation of this kind . . . to take discovery depositions is inappropriate until the
government has first had a chance to provide the court with the information necessary to
make a decision on the applicable exemptions."); Farese v. DOJ, No. 86-5528, slip op. at 6
(D.C. Cir. Aug. 12, 1987) (affirming denial of discovery filed prior to affidavits, because
discovery "sought to short-circuit the agencies' review of the voluminous amount of
documentation requested"); Mullen v. U.S. Army Crim. Investigation Command, No. 10262, 2011 WL 5870550, at *3-4 (E.D. Va. Nov. 22, 2011) (vacating court's previous
scheduling order with respect to discovery and allowing government to first file its motion
for summary judgment); Driggers v. United States, No. 11-229, 2011 WL 2883283, at *2
(N.D. Tex. July 18, 2011) (granting defendant's motion for protective order staying discovery
until after defendant submits its motion for summary judgment and accompanying
affidavits); Taylor v. Babbit, 673 F. Supp. 2d 20, 23-24 (D.D.C. 2009) (denying without
prejudice plaintiff's request for discovery, and concluding that plaintiff may refile his
request after government has submitted its renewed motion for summary judgment); Lion
Raisins, Inc. v. USDA, No. 08-0358, 2009 WL 160283, at *3 (E.D. Cal. Jan. 21, 2009)
(denying discovery request before summary judgment stage because "there is not enough
information to conclusively determine, at this time, whether or to what extent discovery
should be permitted, or whether the case or particular issues can be properly decided
without discovery"). But see Long, 10 F. Supp. 2d at 210 (allowing discovery prior to
government's motion for summary judgment, but only to test adequacy of search).
348

See, e.g., In re Engram, 966 F.2d 1442, 1442 (4th Cir. 1992) (per curiam) (permitting
discovery regarding how plaintiff obtained defendant's document as relevant to issue of
waiver under Exemption 5); Weisberg v. DOJ, 749 F.2d 864, 868 (D.C. Cir. 1984) (ruling
that agency "should be able to use the discovery rules in FOIA suits like any other litigant");
McSheffrey v. EOUSA, No. 98-0650, slip op. at 3 (D.D.C. Sept. 8, 1999) (recognizing that by
conducting discovery against plaintiff, government could have confirmed receipt of agency's
response to FOIA request), aff'd on other grounds, 13 F. App'x 3 (D.C. Cir. 2001). But see
Kurz-Kasch, Inc. v. DOD, 113 F.R.D. 147, 148 (S.D. Ohio 1986) (indicating that "only . . .
agencies of the government" can be subject to discovery in FOIA cases).
349

350

5 U.S.C. § 552(a)(4)(B) (2012 & Supp. V 2017).
126

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

that exemption was not cited in responding to the request at the administrative level. 351
Moreover, an agency, with identical documents in dispute in a FOIA and in a non-FOIA
case, may invoke FOIA exemptions even though "it did not invoke the same underlying
privilege claims in [the] ongoing discovery dispute in [the] non-FOIA case." 352 However,
an agency's failure to timely raise an exemption in litigation at the district court level may
result in a waiver of the agency's ability to assert the exemption. 353
See, e.g., Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992) ("[A]n agency does not
waive FOIA exemptions by not raising them during the administrative process." (citing
Dubin v. Dep't of Treasury, 555 F. Supp. 408, 412 (N.D. Ga. 1981)), aff'd, 697 F.2d 1093
(11th Cir. 1983)); Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313,
1318 (D. Utah 2003) (citing Young) (same); Sinito v. DOJ, No. 87-0814, 2000 U.S. Dist.
LEXIS 22504, at *25 (D.D.C. July 12, 2000) (same); Frito-Lay v. EEOC, 964 F. Supp. 236,
239 (W.D. Ky. 1997) ("[A]n agency's failure to raise an exemption at any level of the
administrative process does not constitute a waiver of that defense."); Farmworkers Legal
Servs. v. U.S. Dep't of Labor, 639 F. Supp. 1368, 1370-71 (E.D.N.C. 1986) ("The relevant
cases universally hold that exemption defenses are not too late if initially raised in the
district court."); see also Pohlman, Inc. v. SBA, No. 4:03CV01241, slip op. at 26 (E.D. Mo.
Sept. 30, 2005) (concluding that agency was not barred from invoking Exemption 3 in
litigation merely because Exemption 3 was not raised at administrative level); Leforce &
McCombs, P.C. v. HHS, No. 04-176, slip op. at 13 (E.D. Okla. Feb. 3, 2005) (explaining that
privilege claim under Exemption 5 is not waived by agency's failure to invoke it at
administrative stage); Conoco, Inc. v. DOJ, 521 F. Supp. 1301, 1306 (D. Del. 1981) (holding
that agency is not barred from asserting work-product claim under Exemption 5 merely
because it had not acceded to plaintiff's demand for Vaughn Index at administrative level),
aff'd in part, rev'd in part & remanded, 687 F.2d 724 (3d Cir. 1982). But cf. AT&T Info. Sys.
v. GSA, 810 F.2d 1233, 1236 (D.C. Cir. 1987) (holding that in "reverse" FOIA context – when
standard of review is "arbitrary [and] capricious" standard based upon "whole"
administrative record – agency may not at litigation stage initially offer its reasons for
refusal to withhold material).
351

Stonehill v. IRS, 558 F.3d 534, 535 (D.C. Cir. 2009); see also Marshall v. FBI, 802 F.
Supp. 2d 125, 136 (D.D.C. 2011) (finding court order for production of records in criminal
case did not constitute waiver for purposes of FOIA because "disclosure obligations under
the FOIA and disclosure obligations in criminal proceedings are separate matters, governed
by different standards"); Moffat v. DOJ, No. 09-12067, 2011 WL 3475440, at *19 (D. Mass.
Aug. 5, 2011) (finding previous production in full during criminal trial irrelevant and
concluding that no waiver occurred "as the standards for disclosure of information under
FOIA are different from the standards of disclosure of information in a criminal trial").
352

See, e.g., Ryan v. DOJ, 617 F.2d 781, 792 & n.38a (D.C. Cir. 1980) (refusing to allow
agency to invoke exemption not previously "raised," proclaiming instead that "an agency
must identify the specific statutory exemptions relied upon, and do so at least by the time of
the district court proceedings"), abrogated on other grounds by, Dep't of Interior v. Klamath
Water Users Protective Ass'n, 531 U.S. 1 (2001); cf. Citizens for Responsibility & Ethics in
Wash. v. DOJ, 854 F.3d 675, 681 (D.C. Cir. 2017) (refusing to allow FBI to belatedly invoke
Exemption 5 even when Criminal Division timely did so because "DOJ utilized a
decentralized process, in which the Criminal Division and the FBI independently decided
353

127

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Although an agency is not generally required to plead its exemptions in its answer
to a complaint, 354 the Court of Appeals for the District of Columbia Circuit has held that
"'agencies [may] not make new exemption claims to a district court after the judge has
ruled in the other party's favor,' nor may they 'wait until appeal to raise additional claims
of exemption or additional rationales for the same claim.'" 355 On occasion, when the
district court proceedings are not completed and when the plaintiff has an opportunity to
respond, courts have permitted the raising of new claims at later stages of the
proceedings. 356 Generally, however, in the absence of mitigating factors, discussed below,
whether or not to release responsive records that originated in their respective
components.").
See, e.g., Sciba v. Bd. of Governors of the Fed. Reserve Sys., No. 04-1011, 2005 WL
758260, at *1 n.3 (D.D.C. Apr. 1, 2005) (recognizing that agency is not required to raise any
exemption in its answer); Lawrence v. United States, 355 F. Supp. 2d 1307, 1311 (M.D. Fla.
2004) (finding that IRS did not waive its right to invoke exemptions when it did not include
them in its answer to plaintiff's amended complaint); Frito-Lay, 964 F. Supp. at 239 & n.4
(distinguishing between affirmative defenses, which are waived if not raised, and FOIA
exemption claims, which are not waived, and declaring that "[p]laintiff has had ample notice
of and opportunity to rebut Defendant's defenses"); Farmworkers Legal Servs, 639 F. Supp.
at 1371 (same); Berry v. DOJ, 612 F. Supp. 45, 47 (D. Ariz. 1985) (same). But see Ray v.
DOJ, 908 F.2d 1549, 1557 (11th Cir. 1990) (suggesting that all exemptions must be raised by
defendant agency "'in a responsive pleading'" (quoting Chilivis v. SEC, 673 F.2d 1205, 1208
(11th Cir. 1982))), rev'd on other grounds sub nom. U.S. Dep't of State v. Ray, 502 U.S. 164
(1991); Maccaferri Gabions, Inc. v. DOJ, No. 95-2576, slip op. at 4-6 (D. Md. Mar. 26, 1996)
(holding that government's withholding pursuant to FOIA exemption constitutes affirmative
defense which must be set forth in its answer, but finding that government's reference to
exemption in its answer and requester's knowledge of basis for withholding cured any
pleading defect), appeal dismissed voluntarily, No. 96-1513 (4th Cir. Sept. 19, 1996).
354

Senate of P.R. v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987) (quoting Holy Spirit Ass'n v.
CIA, 636 F.2d 838, 846 (D.C. Cir. 1980)); cf. Tax Analysts v. IRS, 152 F. Supp. 2d 1, 25-26
(D.D.C. 2001) (refusing to revisit issue of attorney-client privilege because court ruled on
attorney-client privilege issue in previous opinion), aff'd in pertinent part, rev'd in part, 294
F.3d 71 (D.C. Cir. 2002).
355

See, e.g., Reliant Energy Power Generation v. FERC, 520 F. Supp. 2d 194, 201-02 (D.D.C.
2007) (concluding that agency did not waive right to claim Exemption 4 by raising claim in
second motion for summary judgment because court's denial of agency's first motion for
summary judgment was not ruling in plaintiff's favor, as plaintiff's own motion for summary
judgment was also denied); Judicial Watch, Inc. v. DOJ, 102 F. Supp. 2d 6, 12 & n.4 (D.D.C.
2000) (explaining that agency may not raise exemption for first time in brief replying to
plaintiff's response to motion for summary judgment, but may raise it in future motion for
summary judgment, thereby affording plaintiff opportunity to respond); Williams v. FBI,
No. 91-1054, 1997 WL 198109, at *2 (D.D.C. Apr. 16, 1997) (finding, in case where
exemption was raised first in motion for reconsideration, that "policy militating against
piecemeal litigation is less weighty where the district court proceedings are not yet
356

128

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

an agency's failure to adequately preserve its exemption positions at the district court
level has resulted in waiver of those exemption claims – not only during the initial district
court proceedings, 357 but also at the appellate level, 358 and even following a remand. 359
completed"), appeal dismissed, No. 98-5249 (D.C. Cir. Oct. 7, 1998); cf. Senate of P.R., 823
F.2d at 581 (holding that "the district judge did not abuse his discretion when he evaluated
the situation at hand as one inappropriate for application of a rigid 'press it at the threshold,
or lose it for all times' approach to the agency's FOIA exemption claims"); Piper v. DOJ, 374
F. Supp. 2d 73, 78 (D.D.C. 2005) (opining that while FOIA exemptions not raised at initial
district court proceedings ordinarily may be waived, if disclosure "will impinge on rights of
third parties that are expressly protected by FOIA . . . district courts not only have the
discretion, but sometimes the obligation to consider newly presented facts and to grant"
post-judgment relief).
See, e.g., Rosenfeld v. DOJ, 57 F.3d 803, 811 (9th Cir. 1995) (holding new exemption
claims waived when raised for first time after district court ruled against government on its
motion for summary judgment); Ray, 908 F.2d at 1551 (same); Scheer v. DOJ, No. 98-1613,
slip op. at 4-5 (D.D.C. July 24, 1999) (denying motion for reconsideration to present new
exemption claims, partly because defendant did not show "why, through the exercise of due
diligence, it could not have presented this evidence before judgment was rendered"),
remanded per stipulation, No. 99-5317 (D.C. Cir. Nov. 2, 2000); Miller v. Sessions, No. 77C-3331, 1988 WL 45519, at *1-2 (N.D. Ill. May 2, 1988) (holding "misunderstanding" on part
of government counsel of court's order to submit additional affidavits insufficient to
overcome waiver, and denying motion for reconsideration); Powell v. DOJ, No. C-82-326,
slip op. at 4 (N.D. Cal. June 14, 1985) (holding that government may not raise Exemption
7(D) for documents declassified during pendency of case when only Exemption 1 was raised
at outset); cf. Judicial Watch, Inc. v. DOE, 319 F. Supp. 2d 32, 34-35 (D.D.C. 2004) (denying
motion for reconsideration and explaining that government may not raise for first time
presidential communication privilege after summary judgment was granted to plaintiff).
357

See, e.g., Jordan v. DOJ, 591 F.2d 753, 779-80 (D.C. Cir. 1978) (en banc) (refusing to
consider government's Exemption 7 claim first raised in "supplemental memorandum" filed
one month prior to appellate oral argument).
358

See, e.g., Fendler v. Parole Comm'n, 774 F.2d 975, 978 (9th Cir. 1985) (barring
government from raising Exemption 5 on remand to protect presentence report because it
was raised for first time on appeal); Ryan, 617 F.2d at 792 & n.38a (holding government
barred from invoking Exemption 6 on remand because it was "raised" for first time on
appeal, and defining "raised" to mean, in effect, "fully Vaughned"). Compare Wash. Post Co.
v. HHS, 795 F.2d 205, 208-09 (D.C. Cir. 1986) (finding that "privilege" prong of Exemption
4 may not be raised for first time on remand -- even though "confidential" prong was
previously raised -- absent sufficient extenuating circumstances), and Wash. Post Co. v.
HHS, 865 F.2d 320, 327 (D.C. Cir. 1989) (prohibiting agency from raising new aspect of
previously raised prong of Exemption 4), with Lame v. DOJ, 767 F.2d 66, 71 n.7 (3d Cir.
1985) (permitting new exemptions to be raised on remand, as compared to raising new
exemptions on appeal). But see also Morgan v. DOJ, 923 F.2d 195, 199 n.5 (D.C. Cir. 1991)
(remanding for the district court to determine whether a sealing order actually prohibits
disclosure under the FOIA, but noting that the government can invoke other exemptions "if
the court determines that the seal does not prohibit disclosure").
359

129

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

In Maydak v. DOJ, the D.C. Circuit refused to allow the defendant agency to invoke
underlying FOIA exemptions when its initial Exemption 7(A) basis for nondisclosure
became moot due to the completion of the underlying law enforcement proceedings. 360
While recognizing that it previously had allowed agencies to raise new exemptions when
there was "a substantial change in the factual context of the case," 361 the D.C. Circuit ruled
that the termination of underlying enforcement proceedings and the resultant expiration
of the applicability of Exemption 7(A) did not meet this standard. 362 (For further
discussion of waiver of Exemption 7(A) in litigation, see Exemption 7(A), Changes in
Circumstances in Litigation When Exemption 7(A) no Longer Applies, above.)
Three years later, when another D.C. Circuit panel was presented with a similar
situation, in August v. FBI, the court pointed out that it did not intend to "adopt[] a rigid
'press it at the threshold or lose it for all times' approach to . . . agenc[ies'] FOIA exemption
claims." 363 Significantly, that panel emphasized the fact that the full court in Jordan v.
DOJ 364 had adopted a "flexible approach to handling belated invocations of FOIA
exemptions," which it said actually was "affirmed" in Maydak. 365 The D.C. Circuit in
August acknowledged three circumstances that might permit the government belatedly
to invoke FOIA exemptions: a substantial change in the factual context of a case; an
interim development in an applicable legal doctrine; or pure mistake. 366

360

218 F.3d 760, 767 (D.C. Cir. 2000).

361

Id. (citing, e.g., Senate of P.R., 823 F.2d at 580-81).

Id. at 767-68 (proclaiming only change in "factual context" of case was "simple resolution
of other litigation, hardly an unforeseeable difference").
362

363

328 F.3d 697, 699 (D.C. Cir. 2003) (quoting Senate of P.R., 823 F.2d at 581).

364

591 F.2d 753.

August, 328 F.3d at 700 (harmonizing Maydak and Jordan); see also Summers v. DOJ,
No. 98-1837, slip op. at 7 (D.D.C. Apr. 13, 2004) (interpreting Maydak to require the
government to raise all claimed exemptions at some time during the district court
proceedings -- but not requiring "that all exemptions . . . be raised at the same time").
365

August, 328 F.3d at 700 (citing Jordan); see, e.g., Citizens for Responsibility and Ethics
in Washington v. DOJ, 854 F.3d 675, 680-81 (D.C. Cir. 2017) (discussing reasons for
allowing untimely assertion of exemption and finding that defendant has not provided
sufficient basis for declining to assert exemption in a timly manner); Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1119 (D.C. Cir. 2007) (relying on August and explaining that
"where an agency fails 'through pure mistake' to cite a particular exemption, the appellate
court has discretion to remand for consideration of the exemption, at least where the
government's case is sufficiently strong"); Hiken v. DOD, 872 F. Supp. 2d 936, 941 (N.D.
Cal. 2012) (concluding that "the Supreme Court's decision, in Milner, to overturn the
interpretation of Exemption 2 on which Defendants had relied constitutes an 'interim
366

130

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Moreover, in two rulings issued shortly after August, another panel of the D.C.
Circuit suggested that an agency's belated raising of FOIA exemptions might be
appropriate under an additional circumstance – namely, when the legal basis for an
agency's initial decision on a FOIA request is rejected in litigation. In United We Stand
America, Inc. v. IRS, 367 the primary issue was whether a requested record should be
considered a congressional document or an "agency record." 368 At the district court level,
the agency actually "reserved the right" to invoke exemptions if the court disagreed with
the agency's determination that the record was a congressional document and thus not
subject to the FOIA. 369 On appeal, the D.C. Circuit determined that the document was at
least partially an "agency record," and it remanded the case to the district court to decide
the applicability of any exemption claims that the agency previously had "reserved." 370
Similarly, in LaCedra v. EOUSA, 371 the D.C. Circuit found as a matter of law that the
agency's interpretation of a FOIA request was "implausible," but nonetheless explicitly
permitted the agency on remand to raise exemption claims for the additional records that
would be considered responsive, on the basis that "[n]othing in Maydak requires an
agency to invoke any exemption applicable to a record the agency in good faith believes
has not been requested." 372
Special Counsel Provision
The FOIA contains a provision regarding possible disciplinary action if agency
personnel were to act arbitrarily or capriciously to withhold information. Specifically,
subsection (a)(4)(F) of the FOIA provides:
Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States
development in applicable legal doctrine' sufficient to warrant the government's assertion of
a belated FOIA exemption"); Gerstein v. CIA, No. 06-4643, 2008 WL 4415080, at *13 (N.D.
Cal. Sept. 26, 2008) (finding that CIA did not waive right to claim exemption although it
failed to raise claim in initial motion because omission was inadvertent and CIA made
adequate showing as to excusable neglect); Judicial Watch v. Dep't of the Army, 466 F.
Supp. 2d 112, 124 (D.D.C. 2006) (granting reconsideration to correct agency's error and
afford intervenor an opportunity to raise exemptions).
367

359 F.3d 595 (D.C. Cir. 2004).

368

Id. at 597.

369

Id. at 598.

370

Id. at 603.

371

317 F.3d 345 (D.C. Cir. 2003).

372

Id. at 348.
131

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

reasonable attorney fees and other litigation costs, and the court
additionally issues a written finding that the circumstances surrounding the
withholding raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the [United States Office of]
Special Counsel shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee who was
primarily responsible for the withholding. 373
There are three separate prerequisites to trigger the initiation of a Special Counsel
investigation under the FOIA: 1) the court must order the production of agency records
found to be improperly withheld, 2) it must award attorney fees and litigation costs, and
3) it must issue a specific "written finding" of suspected arbitrary or capricious conduct. 374
Courts have declined to order a referral to the Office of Special Counsel where these
prerequisites have not been met. 375
5 U.S.C. § 552(a)(4)(F)(i) (2012 & Supp. V 2017) (requiring Attorney General to "notify
the Special Counsel of each civil action" described above; to "annually submit a report to
Congress on the number of such civil actions in the preceding year," and further requiring
the Special Counsel to "annually submit a report to Congress on the actions taken" by that
Office).
373

374

5 U.S.C. § 552(a)(4)(F)(i).

See, e.g., Light v. DOJ, 968 F. Supp. 2d 11, 31 (D.D.C. 2013) (declining to refer defendant
to Office of Special Counsel after rejecting plaintiff's claim of wrongful delay and arbitrary
action because plaintiffs made six separate detailed FOIA requests which compelled
defendant to take additional time to search), reconsideration denied, Truthout v. DOJ, 968
F. Supp. 2d 32 (D.D.C. 2013); Pub. Emps. for Envtl. Resp. v. U.S. Sec. Int'l Boundary &
Water Comm'n, 839 F. Supp. 2d 304, at 329-30 (D.D.C. 2012) (denying plaintiff's request to
refer matter to Office of Special Counsel based on its unfounded allegations that agency
denied existence of record and exaggerated threat of harm in disclosure), rev'd on other
grounds, 740 F.3d 195 (D.C. Cir. 2014); Hernandez v. U.S. Customs & Border Protect.
Agency, No. 10-4502, 2012 U.S. Dist. LEXIS 14290, at *39-40 (E.D. La. Feb. 7, 2012)
(awarding plaintiff attorney fees and costs, but declining to refer matter to Office of Special
Counsel where agency's conduct in responding to request did not rise to level of arbitrary
and capricious); O'Shea v. NLRB, No. 05-2808, 2006 WL 1977152, at *6 (D.S.C. July 11,
2006) (holding that referral to Office of Special Counsel was unwarranted because
defendant agency was not improperly withholding documents); Hull v. Dep't of Labor, No.
04-1264, 2006 U.S. Dist. LEXIS 35054, at *21 (D. Colo. May 30, 2006) (concluding that,
despite "bureaucratic mistakes," defendant did not lie or disobey or ignore court orders, and
that defendant's conduct therefore did not warrant referral to Office of Special Counsel);
Defenders of Wildlife v. USDA, 311 F. Supp. 2d 44, 61 (D.D.C. 2004) (declining to find that
agency acted arbitrarily and capriciously, because court did not find that agency withheld
nonexempt records); Chourre v. IRS, 203 F. Supp. 2d 1196, 1202 (W.D. Wash. 2002)
(rejecting plaintiff's request for written finding in accordance with 5 U.S.C.
§ 552(a)(4)(F)(i), because "[t]here is nothing in the record to suggest that any officer or
agent [of the agency] acted arbitrarily or capriciously"); Kempker-Cloyd v. DOJ, No. 5:97253, 1999 U.S. Dist. LEXIS 4813, at *23 (W.D. Mich. Mar. 12, 1999) (finding that even
375

132

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

One court has referred a disciplinary matter involving an Assistant United States
Attorney to the Department of Justice's Office of Professional Responsibility following a
finding that he prematurely "destroyed records responsive to [the] FOIA request while
[the FOIA] litigation was pending." 376 However, claims of "bad faith" actions by a
government agency ordinarily are considered in the context of whether to grant attorney
fees. 377
though agency's action was "incomplete and untimely" and "not in good faith," there was no
evidence of arbitrary or capricious behavior), motion for fees & costs granted, slip op. at 14
(W.D. Mich. Apr. 2, 1999) (magistrate's recommendations), adopted, (W.D. Mich. Aug. 17,
1999); Gabel v. IRS, No. 97-1653, 1998 WL 817758, at *5-6 (N.D. Cal. June 25, 1998)
(declining to issue written finding in accordance with 5 U.S.C. § 552(a)(4)(F)(i) where all
requested records had been produced and thus no records improperly were withheld);
Norwood v. FAA, No. 83-2315, slip op. at 20 (W.D. Tenn. Dec. 11, 1991) (finding that when
court denies fees on ground that plaintiff is proceeding pro se, "the issuance of written
findings pursuant to 5 U.S.C. § 552(a)(4)(F) would be inappropriate since both prerequisites
have not been met"), aff'd in part & rev'd in part on other grounds, 993 F.2d 570 (6th Cir.
1993); cf. Consumer Fed'n of Am. v. USDA, 539 F. Supp. 2d 225, 228 (D.D.C. 2008)
(directing agency to file supplemental declaration detailing its plans to respond to future
FOIA requests and steps it has taken to correct problem which led to destruction of
responsive records, and further stating that it will take under advisement whether to
sanction defendant by referring matter to Office of Inspector General and/or Office of
Special Counsel), defendant's motion for summary judgment granted and plaintiff's motion
for sanctions denied (D.D.C. Aug. 6, 2008) (minute order).
376

Jefferson v. Reno, 123 F. Supp. 2d 1, 5 (D.D.C. 2000).

See, e.g., Islamic Shura Council v. FBI, 757 F.3d 870, 873 (9th Cir. 2013) (reversing order
granting motion for sanctions and vacating order awarding fees after finding that "motion
for sanctions was made after 'judicial rejection of the offending contention'"); ACLU v. DOD,
827 F. Supp. 2d 217, 230-33 (S.D.N.Y. 2011) (denying plaintiff's motion to hold CIA in
contempt for destruction of requested videos, but noting that parties should endeavor to
settle amounts of attorney fees and costs "that are fairly due"); Judicial Watch, Inc. v. Dep't
of Commerce, 384 F. Supp. 2d 163, 169 (D.D.C. 2005) (awarding attorney's fees and costs
because, among other factors, agency's "initial search was unlawful and egregiously
mishandled and that likely responsive documents were destroyed and removed"), aff'd in
relevant part, 470 F.3d 363, 375 (D.C. Cir. 2006) (affirming award of attorney fees, but
remanding in part to recalculate attorney fees assessed); Landmark Legal Found. v. EPA,
272 F. Supp. 2d, 70, 87 (D.D.C. 2003) (awarding attorneys fees and costs for agency's
violation of court order intended to preserve FOIA-requested records); Jefferson, 123 F.
Supp. 2d at 5 (assessing attorney fees and costs associated with reconstruction of records,
following violation of court order that had required that records be reconstructed and sent
to both plaintiff and his attorney); Okla. Publ'g Co. v. HUD, No. 87-1935-P, slip op. at 7
(W.D. Okla. June 17, 1988) (attorney fees assessed against government when counsel failed
to comply with scheduling and disclosure orders); see also Allen v. BOP, No. 00-342, slip
op. at 9-10 (D.D.C. Aug. 26, 2002) (ordering "reimbursement of Plaintiff of his filing fee and
all postage and copying costs," and prohibiting agency from charging fee for processing of
few remaining records after it "inexcusabl[y]" destroyed majority of requested records); Hill
v. Dep't of the Air Force, No. 85-1485, slip op. at 7 (D.N.M. Sept. 4, 1987) (ordering
377

133

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Considerations on Appeal
As noted previously, an exceptionally large percentage of FOIA cases are decided
by summary judgment. 378 While a decision granting a motion for summary judgment
usually is immediately appealable, that is not generally the case with other orders that are
issued during the course of a FOIA lawsuit. 379 For example, the grant of an Open America
stay of proceedings is not a decision that is immediately appealable. 380 Similarly, it has

documents processed at no further cost to plaintiff because of unreasonable delay in
processing FOIA request), aff'd on other grounds, 844 F.2d 1407 (10th Cir. 1988).
See World Publ'g Co. v. DOJ, 672 F.3d 825, 832 (10th Cir. 2012) ("In general FOIA cases
are resolved on summary judgment."); Miccosukee Tribe of Indians of Fla. v. United States,
516 F.3d 1235, 1243 (11th Cir. 2008) ("'Generally, FOIA cases should be handled on motions
for summary judgment, once the documents at issue are properly identified.'" (quoting
Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993))); Wickwire Gavin, P.C. v. USPS, 356 F.3d
588, 591 (4th Cir. 2004) (declaring that FOIA cases are generally resolved on summary
judgment); Cooper Cameron Corp. v. Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002)
("Summary judgment resolves most FOIA cases.").
378

See, e.g., Citizens for Ethics and Resp. in Wash. v. DHS, 532 F.3d 860, 862-68 (D.C. Cir.
2008) (holding that district court's denial of agency's motion for summary judgment, which
was premised on argument that requested records did not qualify as "agency records," was
not final and appealable order nor was it an injunction subject to interlocutory appeal);
Loomis v. DOE, 199 F.3d 1322, 1322 (2d Cir. 1999) (holding that partial grant of summary
judgment is not final order) (unpublished table decision); Ferguson v. FBI, 957 F.2d 1059,
1063-64 (2d Cir. 1992) (noting that while "partial disclosure orders in FOIA cases are
appealable," fact that district court may have erred in deciding question of law does not vest
jurisdiction in appellate court when no disclosure order has yet been entered and,
consequently, no irreparable harm would result); Hinton v. FBI, 844 F.2d 126, 129-33 (3d
Cir. 1988) (declining to review district court order that Vaughn Index be filed); In re Motion
to Compel filed by Steele, 799 F.2d 461, 464-65 (9th Cir. 1986); Ctr. for Nat'l Sec. Studies v.
CIA, 711 F.2d 409, 413-14 (D.C. Cir. 1983) (finding no appellate jurisdiction to review lower
court order granting summary judgment to defendant on only one of twelve counts in
complaint, because order did not affect "predominantly all" of merits of case and plaintiffs
did not establish that denial of relief would cause them irreparable injury); cf. Judicial
Watch, Inc. v. DOE, 412 F.3d 125, 128 (D.C. Cir. 2005) (denying motion to dismiss appeal
because, although district court's order was not final as it did not resolve all issues, it was
injunctive in nature and therefore appealable under 28 U.S.C. § 1292(a)(1)); John Doe Corp.
v. John Doe Agency, 850 F.2d 105, 107-08 (2d Cir. 1988) (finding district court order
denying motion for disclosure of documents, preparation of Vaughn Index, and answers to
interrogatories appealable, and thereupon reversing on merits), rev'd on other grounds, 493
U.S. 146 (1989).
379

See Summers v. DOJ, 925 F.2d 450, 453 (D.C. Cir. 1991); Al-Fayed v. CIA, No. 00-2092,
slip op. at 4, n.2 (D.D.C. Jan. 16, 2001) (refusing to treat defendant's motion for stay as
"akin" to motion for summary judgment, because "in stark contrast to a motion for
380

134

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

been held that an "interim" award of attorney fees is not appealable until the conclusion
of the district court proceedings in the case. 381 A district court's determination with
respect to a FOIA plaintiff's fee category likewise is not subject to interlocutory appeal. 382
Where there is a final order requiring that an agency disclose the relevant records,
courts typically grant the government's request for a stay pending appeal because release
of the information would disrupt the status quo and cause irreparable harm by mooting
the issue on appeal. 383
summary judgment, a motion for a stay does not evaluate the merits of a case"), aff'd on
other grounds, 254 F.3d 300 (D.C. Cir. 2001).
See Nat'l Ass'n of Criminal Def. Lawyers v. DOJ, 182 F.3d 981, 984-85 (D.C. Cir. 1999)
(finding that award of "interim" attorney fees is not appealable either as final judgment or
as collateral order).
381

Judicial Watch, Inc. v. DOJ, No. 01-5019, 2001 WL 800022, at *1 (D.C. Cir. June 13,
2001) (per curiam) (dismissing appeal because "district court's order holding that appellee
is a representative of the news media for purposes of 5 U.S.C. § 552(a)(4)(A)(ii)(II) is not
final in the traditional sense and does not meet the requirements of the collateral order
doctrine").
382

See, e.g., HHS v. Alley, 556 U.S. 1149, 1149 (2009) (ordering stay of district court's order
which directed agency to disclose records to plaintiff, pending final disposition of appeal,
following denial of stay by United States Court of Appeals for the Eleventh Circuit);
Rosenfeld v. DOJ, 501 U.S. 1227, 1227 (1991) (granting full stay pending appeal); John Doe
Agency v. John Doe Corp., 488 U.S. 1306, 1307 (1989) (granting stay based upon "balance
of the equities"); Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160, 1164 (9th Cir. 2011)
(noting that motions panel of Ninth Circuit granted an administrative stay in order to
permit merits panel sufficient time to review district court's decision to unseal a sealed, ex
parte order); Elec. Frontier Found. v. ODNI, 595 F.3d 949, 954 (9th Cir. 2010) (granting
stay pending appeal to allow Solicitor General opportunity to decide which portions of
summary judgment order to appeal), amended by, 639 F.3d 876 (9th Cir. 2010); Nat'l
Council of La Raza v. DOJ, No. 04-5474, slip op. at 2 (2d Cir. Dec. 20, 2004) (granting stay
for duration of appeal, but subject to expedited briefing schedule); Providence Journal Co.
v. FBI, 595 F.2d 889, 890 (1st Cir. 1979); Nat'l Day Laborer Org. Network v. ICE, 827 F.
Supp. 2d 242 (S.D.N.Y. 2011) (granting stay to agency pending appeal); People for Am. Way
Found. v. Dep't of Educ., 518 F. Supp. 2d 174, 179 (D.D.C. 2007) (same); Ctr. for Nat'l Sec.
Studies v. DOJ, 217 F. Supp. 2d 58, 58 (D.D.C. 2002) (explaining that "stays are routinely
granted in FOIA cases," and granting stay because disclosure of detainee names would
"effectively moot any appeal"), aff’d in part, rev’d in part & remanded, 331 F.3d 918 (D.C.
Cir. 2003). But cf. Manos v. Dep't of the Air Force, No. 93-15672, slip op. at 2 (9th Cir. Apr.
28, 1993) (denying stay of district court disclosure order when government "failed to
demonstrate . . . any possibility of success on the merits of its appeal," despite appellate
court's recognition that such denial would render appeal moot, but providing temporary
stay for three days to allow Supreme Court to consider a stay); ACLU v. DOD, 357 F. Supp.
2d 708, 709 (S.D.N.Y. 2005) (denying motion to stay order requiring agency to search and
review its operational files because court's order was procedural in nature, agency did not
383

135

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

The courts of appeals do not have uniform legal standards governing the scope of
appellate review of FOIA decisions. Generally, the Courts of Appeals for the District of

demonstrate likelihood of success, or show that public interest would be served by
immediate appeal, or that it would suffer irreparable harm).
136

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Columbia, 384 First, 385 Second, 386 Fifth, 387 Sixth, 388 Eighth, 389 and Ninth Circuits, 390 have
applied a de novo standard of review. By contrast, the Courts of Appeals for the Third 391
See Elec. Priv. Info. Ctr. v. NSA, 678 F.3d 926, 930 (D.C. Cir. 2012) (reviewing de novo
district court’s grant of summary judgment); ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011)
(same); Consumers' Checkbook v. HHS, 554 F.3d 1046, 1049-50 (D.C. Cir. 2009) (same);
Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (same).
384

See Carpenter v. DOJ, 470 F.3d 434, 437 (1st Cir. 2006) ("Our review of the district
court's determination that the materials are exempt from disclosure is de novo."); Sephton
v. FBI, 442 F.3d 27, 29 (1st Cir. 2006) (reviewing de novo district court's grant of summary
judgment); Church of Scientology Int'l v. DOJ, 30 F.3d 224, 228 (1st Cir. 1994) ("Our review
of the district court's determination that the government was entitled to summary judgment
based on its index and affidavits is de novo.").
385

See Assoc. Press v. DOD, 554 F.3d 274, 283 (2d Cir. 2009) ("We review de novo the
district court's grant of summary judgment in a FOIA case"); Nat'l Council of La Raza v.
DOJ, 411 F.3d 350, 355 (2d Cir. 2005) (reviewing "de novo a district court's grant of
summary judgment in a FOIA case"); Tigue v. DOJ, 312 F.3d 70, 75 (2d Cir. 2002) (same).
386

See Abrams v. Dep't of Treasury, 243 F. App'x 4, 5 (5th Cir. 2007) (reviewing district
court's grant of summary judgment de novo). But cf. FlightSafety Servs. Corp. v. Dep't of
Labor, 326 F.3d 607, 610-11 & n.2 (5th Cir. 2003) (per curiam) (applying de novo standard
of review to district court's legal conclusions while recognizing potential applicability of
different standard for factual determinations).
387

See CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011) (reviewing de novo district
court's grant of summary judgment in FOIA proceeding); Joseph W. Diemert, Jr. & Assoc.
Co. v. FAA, 218 F. App'x 479, 481 (6th Cir. 2007) ("The review of the district court's
application of law to the facts is de novo."); Rugiero v. DOJ, 257 F.3d 534, 543 (6th Cir.
2001) ("[T]his court reviews the propriety of a district court's grant of summary judgment in
a FOIA proceeding de novo."); Sorrells v. United States, 142 F.3d 436, 436 (6th Cir. 1998)
(deciding appeal "[u]pon de novo review") (unpublished table decision). But see
Vonderheide v. IRS, 194 F.3d 1315, 1315 (6th Cir. 1999) ("Where an appeal concerns a
factual attack on subject matter jurisdiction, this court reviews the factual findings of the
district court for clear error and the legal conclusions de novo.") (unpublished table
decision).
388

See Madel v. DOJ, 784 F.3d 448, 451 (8th Cir. 2015) (reviewing de novo district court's
grant of summary judgment); Hulstein v. DEA, 671 F.3d 690, 694 (8th Cir. 2012) (reviewing
"applicability of FOIA exemptions de novo"); Cent. Platte Nat. Res. Dist. v. USDA, 643 F.3d
1142, 1146 (8th Cir. 2011) (reviewing de novo district court's grant of summary judgment,
"viewing all facts and making all reasonable inferences in the light most favorable to the
nonmoving party"); Mo. Coal. for the Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d
1204, 1209 (8th Cir. 2008) (reviewing district court's decision to grant summary judgment
de novo). But see Johnston v. DOJ, 163 F.3d 602, 602 (8th Cir. 1998) ("We review the
district court's factual findings for clear error and its legal conclusions de novo.")
(unpublished table decision).
389

137

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

and Seventh Circuits 392 apply a two-tiered analysis, whereby they review whether the
district court had an adequate factual basis for its decision and, if so, whether that

See Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989 (9th Cir. 2016) (en banc)
("Accordingly, we adopt a de novo standard of review for summary judgment decisions in
FOIA cases . . . and our other decisions to the contrary are overruled.").
390

See, e.g., Abdelfattah v. DHS, 488 F.3d 178, 182 (3d Cir. 2007) (detailing two-tiered
standard of review applied in FOIA cases); Sheet Metal Workers Int'l Ass'n v. VA, 135 F.3d
891, 896 & n.3 (3d Cir. 1998) (describing "two-tiered test" while recognizing that review
standard is not uniform among circuits); McDonnell v. United States, 4 F.3d 1227, 1241-42
(3d Cir. 1993) (pointing to "unique configuration" of summary judgment in FOIA cases as
basis for rejecting "familiar standard of appellate review" for summary judgment cases).
391

See Enviro Tech Int'l, Inc. v. EPA, 371 F.3d 370, 373-74 (7th Cir. 2004) (recognizing
inconsistent application of standards of review among Circuits and within Seventh Circuit's
own FOIA case law and reaffirming its use of two-tiered analysis); Solar Sources, Inc. v.
United States, 142 F.3d 1033, 1038 (7th Cir. 1998) ("[W]e continue to believe that the clearly
erroneous standard remains appropriate in light of the unique circumstances presented by
FOIA exemption cases."); Becker v. IRS, 34 F.3d 398, 402 (7th Cir. 1994) (explaining that
whether withheld material fits within established standards of exemption reviewed is under
two-pronged, deferential test).
392

138

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

decision is clearly erroneous. Similarly, the Fourth,393 Tenth, 394 and Eleventh Circuits395
generally distinguish between the district court's factual basis for its decision, which is
reviewed under a clearly erroneous standard, and the district court's application of FOIA
exemptions to approve withholding of documents, which is most often reviewed de novo.
The end result has "caused some confusion" in the standard for appellate review for FOIA

See Rein v. U.S. Patent & Trademark Off., 553 F.3d 353, 358 (4th Cir. 2009) ("The
standard of review in FOIA cases is limited to determining 'whether (1) the district court had
an adequate factual basis for the decision rendered and (2) whether upon this basis the
decision reached is clearly erroneous,'" and "[l]egal errors are reviewed de novo") (citations
omitted); United States v. Mitchell, No. 03-6938, 2003 WL 22999456, at *1 (4th Cir. Dec.
23, 2003) (articulating standard of review in this case as "limited to determining whether
the district court had an adequate factual basis for its decision and whether upon this basis
the decision was clearly erroneous"). But see Hanson v. Agency for Int'l Dev., 372 F.3d 286,
290 (4th Cir. 2004) (stating that grant of summary judgment in FOIA action is issue of law,
which is reviewed de novo); Heily v. Dep't of Commerce, 69 F. App'x 171, 173 (4th Cir. July
3, 2003) (per curiam) (same).
393

See World Publ'g Co., 672 F.3d at 826 (reviewing "de novo district court's legal
conclusion that requested records are exempt from disclosure under the FOIA," after noting
that it can do so, "given undisputed facts"); Jordan v. DOJ, 668 F.3d 1188, 1192 (10th Cir.
2011) (stating that "the standard of review of a grant of summary judgment is de novo, if the
district court's decision had an adequate factual basis'" (quoting Audubon Soc'y v. U.S.
Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997))); Prison Legal News v. EOUSA, 628 F.3d
1243, 1247 (10th Cir. 2011) (same); Stewart v. Dep't of Interior, 554 F.3d 1236, 1241 (10th
Cir. 2009) (reviewing de novo agency's decision to withhold records under FOIA, noting
review was limited to record before agency); Casad v. HHS, 301 F.3d 1247, 1251 (10th Cir.
2002) (explaining that review is first "whether the district court had an adequate factual
basis" for its decision, and then "de novo [of] the district court's legal conclusions that the
requested materials are covered by the relevant FOIA exemptions"). But see Forest
Guardians v. Dep't of Interior, 416 F.3d 1173, 1177 (10th Cir. 2005) (reviewing de novo
district court's decision to grant summary judgment).
394

See Miccosukee Tribe, 516 F.3d at 1243-44 (reviewing de novo district court's grant of
summary judgment and, with regard to proper application of Exemption 5, determining
whether district court had adequate factual basis and whether decision reached was clearly
erroneous); News-Press v. DHS, 489 F.3d 1173, 1187-89 (11th Cir. 2007) (concluding that de
novo standard of review applies where facts are not in dispute and only issue on appeal is
whether agency properly applied Exemption 6); Office of the Capital Collateral Counsel v.
DOJ, 331 F.3d 799, 802 (11th Cir. 2003) (applying de novo standard of review because
"issues in this appeal are limited to the legal application of [a] FOIA exemption"); cf.
Sharkey v. FDA, 250 F. App'x 284, 287 (11th Cir. 2007) (declining to decide what standard
of review applies where parties dispute applicable standard and district court's opinion
should be affirmed under either). But see Brown v. DOJ, 169 F. App'x 537, 539 (11th Cir.
2006) (stating that "district court's determinations under the FOIA are reviewed for clear
error").
395

139

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

cases in these circuits, 396 because it is difficult to distinguish between the "clearly
erroneous" review standard which applies to the "'factual conclusions that place a
document within a stated exemption of FOIA'" 397 and the de novo review standard that is
used to determine "'whether a document fits within one of FOIA's prescribed
exemptions.'" 398 In sum, the case law on this point is not consistent among the various
circuits, and conflicting decisions are not uncommon even within the same circuit. 399
On another issue involving appeal considerations, the D.C. Circuit, in a case of first
impression, ruled that the standard of review of a district court decision on that portion
of the FOIA's expedited access provision, which authorizes expedited access "in cases in
which the person requesting the records demonstrates a compelling need," 400 is de
novo. 401 The D.C. Circuit held that "[p]recisely because FOIA's terms apply nationwide,"
it would not accord deference to any particular agency's interpretation of this provision
of the FOIA. 402 At the same time, however, the D.C. Circuit held that if an agency were to
issue a rule consistent with the FOIA's statutory language that permits expedition "in
other cases determined by the agency," 403 that rule would be entitled to judicial
deference. 404 In any event, once an agency has acted upon the underlying request for
Schiffer v. FBI, 78 F.3d 1405, 1408 (9th Cir. 1996) ("Determining the appropriate
standard of review to apply to summary judgment in FOIA cases . . . has caused some
confusion because of the peculiar circumstances presented by such cases.").
396

397

Id. at 1409 (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994)).

398

Id.

See Enviro Tech Int'l, Inc., 371 F.3d at 374 (recognizing split amongst circuits as to
appropriate standard of review in FOIA cases, and further noting inconsistencies within
Seventh Circuit).
399

400

5 U.S.C. § 552(a)(6)(E)(i) (2012 & Supp. V 2017).

Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001) (deciding that "the logical conclusion
is that de novo review is the proper standard for a district court to apply to a denial of
expedition"); see Tripp v. DOD, 193 F. Supp. 2d 229, 241 (D.D.C. 2002) (same) (citing AlFayed).
401

402

Al-Fayed, 254 F.3d at 307.

Id. at 307 n.7 (citing to portion of subsection 5 U.S.C. § 552(a)(6)(E)(i) that allows for
expedition "in other cases determined by the agency").
403

See id. at 307 n.7 ("A regulation promulgated in response to such an express delegation
of authority to an individual agency is entitled to judicial deference . . . as is each agency's
reasonable interpretation of its own regulations."). Contra ACLU of N. Cal. v. DOJ, No. 044447, 2005 U.S. Dist. LEXIS 3763, at*22 (N.D. Cal. Mar. 11, 2005) (concluding that "in the
absence of any controlling Ninth Circuit authority to the contrary, . . . judicial review of any
denial of a request for expedited processing – whether the request is made pursuant to the
404

140

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

which expedited access was requested, the FOIA itself removes jurisdiction from the
courts to review the agency's decision on the issue of expedition. 405
On appeal, a court of appeals generally reviews a lower court's decision to deny
discovery using an abuse of discretion standard. 406
In some FOIA cases where the merits and law of the case are so clear as to justify
summary disposition, summary affirmance at the appellate stage is granted. 407
Additionally, although an otherwise routine case may be remanded solely on the basis
that the district court failed to make a segregability finding, 408 courts of appeal still may
'compelling need provision' of subparagraph (E)(i)(I), or is made pursuant to 'other cases
determined by the agency provision' of subparagraph (E)(i)(II) – must be conducted de
novo").
See 5 U.S.C. § 552(a)(6)(E)(iv) ("A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing of a request for records after
the agency has provided a complete response to the request."); see also Coven v. OPM, No.
07-1831, 2009 U.S. Dist. LEXIS 90625, at *29-31 (D. Ariz. Sept. 29, 2009) (concluding that
court does not have jurisdiction to review expedited processing claim where agency has
provided complete response to request); Judicial Watch, Inc. v. U.S. Naval Observatory, 160
F. Supp. 2d 111, 112 (D.D.C. 2001) ("[B]ecause defendant has . . . provided a complete
response to the request for records, this Court no longer has subject matter jurisdiction over
the claim that defendant failed to expedite processing of plaintiff's request.").
405

See, e.g., Freedom Watch v. NSA, 783 F.3d 1340, 1345 (D.C. Cir. 2015) (reviewing denial
of discovery for abuse of discretion); Yagman v. BOP, 605 F. App'x 666, 667 (9th Cir. 2015)
(same); CareToLive, 631 F.3d at 344 (same); Batton v. Evers, 598 F.3d 169, 175 (5th Cir.
2010) (same); Sharkey, 250 F. App'x at 287 (same); Trentadue v. FBI, 572 F.3d 794, 806
(10th Cir. 2009) (same); see also Mobley v. CIA, 806 F.3d 568, 576 (D.C. Cir. 2015)
(reviewing denial of in camera inspection for abuse of discretion); Life Extension Found.,
Inc. v. IRS, 559 F. App'x 3, 3 (D.C. Cir. 2014) (same).
406

See, e.g., Taitz v. Ruemmler, No. 11-5306, 2012 U.S. App. LEXIS 10714, at *1 (D.C. Cir.
May 24, 2012) (per curiam) (granting summary affirmance and finding that district court
properly determined that White House Counsel's Office is not an "agency" subject to FOIA);
Cooper v. Stewart, No. 11-5061, 2011 WL 6758484, at *1 (D.C. Cir. Dec. 15, 2011) (per
curiam) (granting agency's motion for summary affirmance on grounds that district court
properly dismissed FOIA claims against individual defendants, granted summary judgment
to DOJ based on adequacy of search, and concluded that Federal Torts Claims Act does not
provide basis for considering plaintiff's FOIA claim); Mosby v. Hunt, No. 10-5296, 2011 U.S.
App. LEXIS 17668, at *3-4 (D.C. Cir. July 6, 2011) (per curiam) (granting agency's motion
for summary affirmance on basis that district court properly concluded that search was
adequate and withholdings were proper).
407

See, e.g., Stolt-Nielsen Transp. Group Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir.
2008) (stating that if district court approves agency's withholdings without issuing finding
on segregability, then "'remand is required even if the requester did not raise the issue of
408

141

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

opt to make a segregability determination based on the record presented before the lower
court. 409 (For a further discussion of this point, see Litigation Considerations,
"Reasonably Segregable" Requirements, above.)
Additionally, appellate courts ordinarily will not consider issues raised for the first
time on appeal by either party. 410 Similarly, agencies that do not raise or preserve all
exemption claims at the district court level risk waiving these claims at the appellate
level. 411 (See Litigation Considerations, Waiver of Exemptions in Litigation, above.)

segregability before the court'" (quoting Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir.
2002))); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (same);
James Madison Project v. NARA, No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir. Oct. 11,
2002) (denying summary affirmance in part and remanding for "a more precise finding by
the district court as to segregability").
See Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008) (concluding that district court's
failure to address segregability was "reversible error," but nevertheless determining that,
based on its own review of agency affidavits, "no part of the requested documents was
improperly withheld" and accordingly finding that no remand was necessary).
409

See, e.g., Roth v. DOJ, 642 F.3d 1161, 1179-80 (D.C. Cir. 2011) (prohibiting government
from raising argument on appeal that it did not raise in district court in manner sufficient to
put plaintiff "on notice of the need to rebut it"); Adamowicz v. IRS, 402 F. App'x 648, 653
n.8 (2d Cir. 2010) (noting that plaintiff's argument that "district court should have
conducted an in camera review" is waived where it is raised for first time on appeal); Elliott
v. USDA, 596 F.3d 842, 850-51 (D.C. Cir. 2010) (barring plaintiff from raising new
arguments concerning relationship between records requested and agency's practices where
he did not first raise issue in trial court)); Judicial Watch, Inc. v. United States, 84 F. App'x
335, 338 (4th Cir. 2004) (refusing to entertain new arguments from appellant on adequacy
of agency's search, despite appellant's characterization of them as "further articulation" of
points made below); Blanton v. DOJ, 64 F. App'x 787, 789 (D.C. Cir. 2003) (per curiam)
(rebuffing appellant's efforts to challenge adequacy of agency's Vaughn Index, because issue
was not raised in district court); Iturralde v. Comptroller, 315 F.3d 311, 314 (D.C. Cir. 2003)
(rejecting appellant's efforts to challenge sufficiency of agency's affidavits, because he did
not raise issue in district court); James Madison Project, 2002 WL 31296220, at *1
(deciding that appellant waived challenges to agency's invocation of FOIA exemptions by
failing to address arguments supporting withholding that were made in agency's summary
affirmance motion); Greyshock v. U.S. Coast Guard, 107 F.3d 16, 16 (9th Cir. 1997)
(declining to consider challenge to separate FOIA request that was not "mentioned in the
complaint or any other pleading before the district court") (unpublished table decision).
But see also Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d
1022, 1027 (D.C. Cir. 1999) (allowing segregability issue to be raised for first time on appeal,
because "appellants' failure to raise segregability certainly was not a knowing waiver of that
argument").
410

See Jordan, 668 F.3d at 1198 n.6 (noting that court will not consider defendants'
alternate arguments, raised for first time on appeal, that additional exemptions apply to
411

142

Department of Justice Guide to the Freedom of Information Act
Litigation Considerations

Lastly, courts have awarded costs to the government in accordance with Rule 39(a)
of the Federal Rules of Appellate Procedure when it is successful in a FOIA appeal. 412

requested information); Senate of P.R. v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987)
(concluding that agencies may not "'wait until appeal to raise additional claims of
exemptions or additional rationales for the same claim'" (quoting Holy Spirit Ass'n v. CIA,
636 F.2d 838, 846 (D.C. Cir. 1980))); see also Maydak v. DOJ, 218 F.3d 760, 769 (D.C. Cir.
2000) (concluding that agency could not assert new exemptions on appeal where it failed to
raise those exemptions at district court level and "offered no convincing reasons why it
could not have done so"); Rosenfeld v. DOJ, 57 F.3d 803, 811 (9th Cir. 1995) (finding new
exemption claims waived when raised for first time after district court ruled against agency
on its motion for summary judgment), cert. dismissed, 516 U.S. 1103 (1996); Ray v. DOJ,
908 F.2d 1549, 1551 (11th Cir. 1990) (same), rev'd on other grounds sub nom; cf. August v.
FBI, 328 F.3d 697, 700-01 (D.C. Cir. 2003) (remanding to district court to consider
applicability of exemptions that agency failed to raise at district court where government's
"failure to raise all FOIA exemptions at the outset resulted from human error, because
wholesale disclosure could pose a significant risk to the safety and privacy of third parties,
and because the Government has taken steps to ensure that it does not make the same
mistake again").
See Fed R. Appellate Pr. 39(A); Baez v. DOJ, 684 F.2d 999, 1005-07 (D.C. Cir. 1982) (en
banc); see also Scherer v. United States, 78 F. App'x 687, 690 (10th Cir. 2003) (upholding
district court's award of costs to agency); Johnson v. Comm'r, 68 F. App'x 839, 840 (9th Cir.
2003) (awarding costs to agency because requester's appeal was frivolous).
412

143