The Coming FOIA Deep Freeze

Judges are halting FOIA suits instead of enforcing the law. And it's going to get worse.

“Popular government without popular information, or the means of acquiring it, is but a prelude to a farce or a tragedy.”

I. The Promise: FOIA as Engine & Emergency Brake for Democracy

The Freedom of Information Act (FOIA) and analog state public records laws should be the crown jewels of U.S. popular democracy. By making government records presumptively public, imposing affirmative disclosure obligations on agencies, and empowering anyone to file suit enforcing their legal right to “promptly” access non-exempt records, the 60-year-old federal civil rights law that accompanied the dawn of multi-racial democracy in the United States should represent a watershed moment.

FOIA’s guarantees should allow us to protect ourselves from propaganda and hold the governors accountable to the governed. They allow, and thus, demand, that we as subjects embrace a democratic conception of agency in which we do more than vote, or hector others about voting. FOIA should help us ferret out corruption and self-dealing, waste, fraud, and abuse, even when the structures of government are unable or unwilling to do so. FOIA should sustain and uplift a free press, necessary to the dissemination of popular information on which a populace may self-govern. In word and in effect, FOIA is designed as both engine and emergency brake for democracy.

II. The Reality: FOIA as Counterinsurgency

Ask nearly any FOIA requestor, and they’ll tell you this conception — like so many other promises of multi-racial popular democracy in a settler colonial state — is fantasy at best, counterinsurgency at worst.

Rather than offering the public prompt access to the information we need to help guide and inform our path forward as people with agency in a democracy, FOIA now functions as a tool for government agencies to collect information about who in society wants what information, identify dissidents, pass that information up to decision-makers who then decide what to hide or punish, and then ignore the requests, violating laws requiring timely answers to them.

Agencies violate FOIA with impunity.

This is partly because no one in the executive branch has been particularly excited about having to comply with FOIA. From presidential vetoes to bureaucratic efficient breach, FOIA has never been a law the government wanted to “Take Care” to enforce. The biggest creators of government records about the issues purportedly driving elections — immigration, crime, economics — shrug their shoulders at attempts by us plebes to assert our rights to information.

To prevent this result, Congress built judicial review into FOIA. “Courts will save you,” the federal elected officials said. This is a convenient choice, given the available option-set. It requires virtually no work on their part. Congress could hold quarterly transparency hearings requiring each agency’s FOIA officer to testify under oath and answer questions about their statutorily mandated reports. Congress could initiate agency-specific inquiries upon being informed a backlog has grown or a court has declared the agency has a pattern and practice of FOIA violations. Congress could pass a law conditioning an agency’s public-relations budget or other appropriations on its clearing of the FOIA backlog. “No, public records? No public relations.” Yet Congress has thus far done none of these things. So it’s up to the courts.

If we compare FOIA to most other federal statutes creating a right to sue the government, it fares pretty well. Unlike many federal laws that nominally entitle individuals to a certain form of treatment from the government, FOIA attaches a remedy to the right. Unlike most suits against the regulatory state, FOIA does not require administrative exhaustion prior to filing suit. This means an agency that does nothing in response to a FOIA request can be sued in 10 calendar days (if it’s an expedited processing request) or 20 working days (if it’s not).

Once there, the agency receives no deference. The ordinarily inviolable ‘administrative record’ from which courts and the litigants draw the universe of facts in most cases against agencies does not constrain FOIA suits in the same ways. Unlike nearly every other federal statute besides habeas, the government’s answer is due in 30 days — not 60. And in contrast to most other types of suits alleging wrongdoing by federal officials, Congress empowered courts to refer individual government officers to a Special Counsel, who then must inform Congress of their wrongdoing and initiate an investigation.

Perhaps most striking, when it comes to search adequacy, Congress placed the burden on the government to prove in FOIA litigation that it conducted an adequate search. This makes FOIA a lot like habeas corpus litigation: Any person can sue, and once they do, the burden rests with the government to promptly produce the body or justify its withholdings.

As decades passed and jurisprudence shifted, Congress preserved the fee-shifting provision in FOIA that, unlike virtually every other federal private right of action, allows the plaintiff to recover attorney’s fees and costs, even if the government defendant decides to voluntary comply after getting sued. Senator Leahy explained when adding the so-called ‘Catalyst Theory’ back into FOIA after the Rehnquist Court wiped it away that without fee-shifting, agencies are actually incentivized to force requestors into court in order to compel compliance, because the government would pay no price for delay.

Over the years, Congress consistently updated the judicial review provisions to address patterns of agency intransigence, creating an independent safety valve for the public when government records custodians don’t follow the law. Until I’m informed differently, I will continue to believe that FOIA’s private right of action is one of the most powerful in the U.S. Code.

So why doesn’t it work?

III. FOIA and the Judicial Coup

Courts across the country have decided FOIA is too powerful to fully enforce. The more an agency violates FOIA, the less likely a court is to enforce its plain language. Last year alone, courts denied millions of dollars in attorney’s fees to FOIA requestors who got the records they sued for after the government broke the law by not providing them before being sued. A shifting set of rationales accompanies these denials, but they mostly boiled down to, “the agency was getting around to it, so your suit didn’t prompt the change, and consequently, you’re not entitled to the fees your attorneys incurred filing and litigating it.”

This is the precise result Congress said it wanted to avoid when it amended FOIA to put the Catalyst Theory of fee-shifting back into the statute. Judges have increasingly decided to accept the DOJ’s invitation to disobey Congress. And because they’re judges, they get to come up with fancy reasons justifying that decision and call them “law.” Never mind Justice Gorsuch’s admonition: “Only the written word is law.” A lifetime judicial appointment lets you add new written words if you don’t like the words Congress wrote.

Some federal judges openly complain about FOIA and its burdens on agencies and courts. In so doing, they accidentally say aloud what most of the rest of their colleagues in robes are thinking: “I wish this case would just go away.”

Offered the opportunity, many courts grant that wish and never look back.

NB: A D.C. federal district court judge complaining about the volume of FOIA cases when the law makes D.C. a universal venue for FOIA is tantamount to the proctologist complaining, “I’m looking at assh*les all day!” Yeah, buddy. That’s your job. Don’t like it? Find another one.

Indeed, the judiciary has created a shadow system of adjudicating FOIA cases that falls outside of the Federal Rules of Civil Procedure, which means it violates the Rules Enabling Act. Most judges will swear until their dying breath that “FOIA cases are typically and appropriately resolved on summary judgment.” But there’s a catch: When the government cannot carry its burden on summary judgment—that is, when the requestor would win under the law—the case does not proceed to trial. Instead, courts simply allow the government a mulligan. They get to try again. Ask any plaintiff whether they automatically get a second chance on summary judgment after failing to meet their burden. Of course they don’t. The case gets dismissed and judgment entered. Sometimes they get hit with fees and costs.

Not so in FOIA. In FOIA litigation, the rulers in robes have divined an alternate, unregulated form of federal civil procedure, free from the confines of the Rules Enabling Act, and often shaped exclusively by the desires of one party (the government agency defendant). As a result, FOIA requestors almost never have a final judgment entered in their favor. Rather, FOIA plaintiffs remain, like rats on a wheel, in a constant state of debunking the representations and legal rationales the government brings to supplemental summary judgment briefing until we either die, stop from exhaustion, or get enough of what we were originally seeking that we’re willing to walk away.

This perpetual cycle of summary judgment briefing when a FOIA requestor wins the first time typically insulates the judge’s machinations from appellate review. Without a final order, any appeal would be interlocutory, and federal statutes and doctrine disfavor piecemeal review. Since FOIA cases are all piecemeal until the government wins, there is, by and large, no end to a FOIA that doesn’t involve a defense judgment or a stipulated dismissal.

So, the judicial review safety valve Congress built into FOIA is one that can only ever really result in a final adjudication for the government. And judges just accept this. Treating it as though it’s totally natural, unavoidable, and required by the law even though it’s so clearly not.

Oh, and as for the fees, it’s worth noting that the Department of Justice gets to decide how much FOIA litigators’ time is worth. And if that’s too much, they’ll hire my former FedCourts professor Brian Fitzpatrick to tell courts, ‘Actually, that Laffey Matrix was too high because FOIA cases aren’t like other cases and they rarely win and when they do they get paid less, so you know that whole matrix you created? yeah, ignore it and use mine instead.” No regulation. No adversary proceeding. Just the foxes deciding how many of the hens get fed. And judges just . . . go along with this. Professor Fitzpatrick, coincidentally (or not), clerked for Justice Scalia, who secretly worked to undermine the Freedom of Information Act both before and during his time on the court, calling it the Taj Mahal of Unintended Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.

There are answers to this judicial rejection of the plain language of FOIA’s text. They lie in the constructive exhaustion provisions of the statute, and the jurisdictional parameters Congress imposed on judicial discretion. Most FOIA litigators have never considered these limitations, so nearly no one applies them. Because courts and their government agency partners are loathe to invite the complexity of plain-language statutory interpretation into a world where statutes like FOIA and the Rules Enabling Act are largely incidental afterthoughts to the outcome, enforcing the terms of FOIA’s safety valve likely requires appellate review, if not a Supreme Court decision by Justice Gorsuch, reminding everyone that words actually have meaning, and since the law is written with words, they matter if we are to describe this process as “legal”.

So that was roughly the state of FOIA BEFORE January 20, 2025.

IV. The FOIA Deep Freeze

Now, agencies that have ignored their FOIA obligations for years will be able to simply halt FOIA suits. Administrators that allowed huge backlogs to accumulate despite the fact that they conduct important societal functions every day about which millions of people urgently seek records will be rewarded with discretionary stays of litigation. Courts around the country are deciding that because society asked for too much democracy, too many records, suits seeking to enforce those demands will be halted.

“Your democracy-saving right to information will have to wait. Your government has decided it has more important things to do. And because you don’t have any of the records you requested, you can’t know whether that’s true or not. Enjoy your new reality.” This is the message from a growing number of courts.

Without the intervention of plain-language statutory interpretation, I predict a total judicial freeze on most FOIA suits by the end of 2025. Why?

Matt Topic with Loevy and Loevy in Chicago is one of the most prolific FOIA litigators in the country. Media organizations and high-profile requestors regularly turn to Matt and his team for advice and representation. So when I saw Matt’s publicly available MuckRock request for FDA FOIA Processing records come across the list of recently completed requests, my curiosity was piqued. When Matt sought records from the Food and Drug Administration about the FDA’s FOIA processing capabilities, he got back government records showing the agency is seeking to put at least 12 FOIA cases around the country on hold for 18 months. At least 8 judges have gone along with FDA’s request. The reason? A judge in Texas ordered the agency to produce millions of pages of COVID-related records, and the agency simply can’t handle any of the other requests if it’s going to comply with the court’s order.

According to the Department of Justice, a judge ordering the agency to promptly comply with FOIA by producing 180k pages per month is an “exceptional circumstance” that should suspend all the other cases against the agency. That is, complying with FOIA is the exception, and if it were to spread too far, FDA would be unable to do anything else.

Compared to agencies like DHS and the FBI, the FDA’s FOIA Office is a paragon of democratic responsiveness. 20% of my currently pending FOIA requests to ICE were pending when the current president was in his first term. Nothing happened with these requests for the period of an entire presidency. I am far from alone. As I’ve documented elsewhere, ICE defunded its FOIA office under Joe Biden, reducing its staffing to 2014 levels. The backlog that ensued soon engulfed DHS.

So why do I think what’s happening with FDA will soon replicate across all other FOIA contexts? Prior to taking power, the architects of the agenda for this administration flooded FOIA offices with over 50,000 requests. I anticipate they’ll soon sue in Texas, seeking the records for many of those requests, and obtain an injunction in no time compelling agency FOIA offices to begin processing tens of thousands of pages of records per month in response to those requests. Heritage’s requests will not be the ones at the front of the line—they were filed relatively recently. But that won’t matter because they’ll be the first to get a court to actually enforce the law, and by doing so, they’ll prevent all other courts from doing so, as is the case with the FDA litigation stays.

None of this should be permitted by the plain language of FOIA itself. An increasing volume of requests that’s not unexpected doesn’t justify a stay of litigation, and where an agency fails to act with due diligence in response to the request at issue, the court lacks jurisdiction to impose the stay, according to Congress and the provision of FOIA dealing with suits to enforce constructively exhausted FOIA requests. That won’t matter, though, as the DOJ’s decide the court has the “inherent” power to issue a stay as a matter of judicial control over its docket. Just as courts seemingly have the “inherent authority” to exempt FOIA cases from the Federal Rules of Civil Procedure and unilaterally cut off access to bench trials on the say-so of federal FOIA officials and their DOJ lawyers.

The end result will be that Heritage and like-minded litigators will get their documents, the agency FOIA office will become the Heritage Fulfillment Center, operating under threat of judicial sanctions, and the rest of us can basically bugger off.

The only way we can call our system a ‘democracy’ under such conditions is by ignoring all that stuff all these elected officials and courts have said about FOIA since 1965 about the purpose and significance of the law. The emergency brake has now become the boot on the neck of democracy, siphoning out the records autocrats need to rule, while suffocating the rest of the requesting public in darkness.

Government representations of the fact unaccompanied by the FOIA-mandated disclosures of information — either affirmatively or upon request — are simply propaganda.

Without records, the public cannot validate what the government says. We then live in a closed society, rather than an open one.

Our police become Secret Police. Our sunshine laws, too long neglected, reproduce a shadow state. Congress chooses to fund our shadow state, lest the secret police turn its Soron Eye toward them.

There are answers here, but they require resources, and, more difficult to find, resolve. Fixing FOIA is all of our job, so it’s nobody’s. A Supreme Court majority would decide to uphold FOIA’s plain language, if someone asked. But no one is.

Democracy’s deep freeze is here. The question is whether darkness means hibernation or death.

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