Introduction

One of the most common refrains about the federal Freedom of Information Act (“FOIA”) within the requesting community is that the statute feels broken. Even before the changes that have occurred under the current administration, agency FOIA programs were understaffed and underfunded. There has been a trend toward less disclosure and greater secrecy that transcends party lines. And apart from abuse of exemptions, agencies have long sought to erect extra-statutory procedural obstacles like sensitive review and equities-based consultations, or creative schemes such as “still interested” letters and administrative closure.

Congress has not been oblivious to these developments. The FOIA Improvement Act of 2016, for example, was designed to ameliorate many of the problems requesters face today. The Act codified a foreseeable-harm standard and twenty-five year “sunset” rule for the deliberative-process privilege. It introduced a “rule of three” to require affirmative disclosure of frequently requested records in online “reading rooms.” Fee limitations based on the failure to follow the statute’s deadlines were intended to incentivize faster processing. Yet, despite the merit of those changes, they have proven inadequate. A decade later, in the face of a record-breaking number of incoming requests, FOIA hardly seems fixed.

For some requesters, litigation is the only way out of this mess. Congress tasked the courts with enforcing agencies’ disclosure obligations. But, in practice, judicial review falls short of Congress’s design. As I have explained elsewhere, in a proposal for a dedicated Article III “FOIA Court,” “the volume of FOIA litigation nationwide has outpaced the ability of federal courts to deal with those cases in a timely manner.” FOIA suits often fail to receive the attention they deserve. More troublingly, a certain functionalism seems to prevail among jurists. Judges often resolve cases based primarily on uncritical review of agency declarations, with limited adversarial testing. Judicial review is plagued by policy concerns, information gaps, and doctrinal ambiguity.

We need to restore the independent judicial role that FOIA promises to the public. FOIA’s shortcomings are not the result of formal Chevron-style deference. The statute expressly prescribes de novo review and, for the most part, judges review legal questions in that manner. FOIA’s judicial-review problem instead arises from a functional deference driven by jurisdictional and remedial uncertainty, the anomalous procedural architecture of FOIA litigation, and atextual judicial doctrines. Congress needs to address these failures together, through both corrective clarifications of the statutory text and substantive reforms that improve the litigation process.

Rigorous judicial review would not only provide a robust check on agencies but also offer relief to aggrieved requesters. It would positively influence FOIA processing more broadly, too. Although only a small number of requests end up in court, caselaw developments and litigation practices heavily influence FOIA processing at the administrative level. Everyone benefits when courts are doing their job.

Clarifying Subject-Matter Jurisdiction

As the Supreme Court has explained, “without jurisdiction a court cannot proceed at all in any cause.” FOIA, for instance, provides that a federal court “has jurisdiction to enjoin [an] agency from withholding agency records.” Frustratingly, some agencies argue this language implicates the court’s authority to hear a case in the first instance. But that interpretation improperly transforms the elements of a FOIA claim—an allegation “an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records’”—into a set of jurisdictional prerequisites.

This confused position, if widely adopted, would have serious implications. At the least, it requires a requester to prove the merits of a claim at the pleading stage, thus reversing the burden placed on an agency to sustain its action. That is problematic for two reasons. First, because it contradicts the well-established principle that “[t]he burden is on the agency to demonstrate, not the requester to disprove,” that the records at issue are not subject to FOIA or have not been improperly withheld. And second, because most requesters, as a practical matter, have no access to the facts needed to prove or disprove the elements of either their claim or the agency’s affirmative defenses. The government holds all the cards. (We will return to this problem of “informational asymmetry” in a moment.)

Although three circuits have rejected this jurisdictional argument, the Department of Justice continues to advance it to the detriment of requesters. Providing clarity on jurisdiction—and putting an end to the government’s game of shifting evidentiary burdens to requesters at the complaint stage—is essential for making sure FOIA litigation functions as Congress intended.

Explicating Remedial Authority

A right of access without an effective remedy for noncompliance is meaningless. Although FOIA authorizes the courts to “order . . . production” and “enjoin . . . withholding[s],” contemporary cases frequently raise broader remedial questions, which are construed as constructive withholdings to fit within this textual scheme. This is particularly true with the allegations underlying so-called policy-or-practice claims, which depend on the notion that “FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” It is also true with claims involving FOIA’s affirmative-disclosure requirements.

As to the latter, courts generally agree they can hear claims over an agency’s failure to publish records in the Federal Register or post them in an online “reading room.” But at least one court of appeals has determined it cannot provide common-sense relief after concluding an agency has neglected its affirmative-disclosure obligations. That is, instead of entering an injunctive order that requires an agency to comply with its reading-room duties, the U.S. Court of Appeals for the District of Columbia Circuit has stated the available relief is limited to enjoining the agency, even prospectively, to producing records merely to the prevailing plaintiff. The argument for limiting the remedy in this way is that a more general publication order would go beyond curing an individual plaintiff’s informational injury. Two other circuits have found that position unpersuasive. 

At least one circuit judge, in concurrence, has cast doubt on the validity of policy-or-practice claims altogether, thereby opening the door to further erosion of courts’ remedial authority and the diversity of claims the statute envisions. Admittedly, the policy-or-practice theory is an odd outgrowth of a jurisprudential mootness exception that finds little purchase in the text of FOIA itself. But the theory is well-established and, more than anything, this shortcoming counsels in favor of Congress codifying such a claim to prevent its outright rejection by the courts. 

The government has also sought to leverage remedial authority against requesters, arguing that FOIA supplements a court’s inherent equitable power to enter “clawback” orders forcing requesters to return or destroy public records that an agency maintains were inadvertently disclosed. The D.C. Circuit has largely rejected the availability of “clawback”—albeit without addressing lurking First Amendment objections—yet the government is attempting to force the issue again.

Ultimately, Congress must carefully spell out a court’s remedial authority and the available causes of action a requester may bring under FOIA. By providing this textual clarity, Congress would reduce collateral disputes while reemphasizing that courts are meant to function as the “enforcement arm of the statute,” fashioning such relief as needed to fulfill the law’s promise of openness and transparency.

Restoring Meaningful De Novo Review

FOIA’s de novo standard is one of its most important features. Congress understood that agencies have institutional incentives to withhold embarrassing, inconvenient, or sensitive information. Hence the need for independent review. Unfortunately, many courts are not holding agencies to account. They have accepted agency efforts to “circumvent[]” de novo review by engaging in various types of “deference conservation,” especially in cases implicating national security or law enforcement matters.

This “deference” extends beyond legal questions—or the meaning of statutory terms, including the scope of FOIA’s exemptions—to factual matters or the application of law to facts. Yet these are the situations in which a fresh look by a judge would be most appropriate under FOIA. In one older district court case, Chemical Manufacturers Ass’n v. CPSC—which the government continues to cite in contemporary FOIA litigation—a judge decided he owed “considerable deference to the [agency’s] judgment as to what constitutes . . . ‘part of the agency give-and-take’—of the deliberative process,” at least so long as decision-making was still ongoing. That kind of solicitude for an agency’s evaluation of “what confidentiality is needed”—a kind of epistemic deference that relies on an agency’s supposed expertise—seemingly veers quite far from de novo review.

As others have explained, deviation from the de novo standard is also found in a court’s uncritical acceptance of declarations and Vaughn indices, as well as its reliance on substantive or procedural interpretations of FOIA that are structurally oriented toward affirming the government’s position. This problem of procedural deference extends to judicial doctrines like the presumptions of “good faith” and “regularity,” and the D.C. Circuit’s more controversial presumption of compliance with FOIA’s duty to segregate non-exempt material from otherwise exempt records.

Although informal deference—including the practice of allowing agencies repeated opportunities to supplement the evidentiary record with multiple rounds of summary judgment—may seem reasonable to some, disregard for the standard set by Congress has transformed much of FOIA litigation into a sort of box-checking routine in which attorneys and judges “focus[] on a dispute about the adequacy of the [agency’s] Vaughn index, rather than a dispute about the merits of the exemption claims themselves.” It is also unclear whether the practical erosion of de novo review can persist within the new “Loper Bright interpretive paradigm” of administrative law, with its emphasis on the role of independent judicial judgment. In any event, Congress needs to reinforce and empower judges to independently verify an agency’s factual claims whenever a requester raises genuine questions about search adequacy, exemption use, segregability, delay, or systemic noncompliance with the statute.

Accounting for Information Asymmetry

As the D.C. Circuit has explained, the “unique evidentiary configuration” of “the typical FOIA case ‘distorts the traditional adversarial nature of our legal system’s form of dispute resolution.’” Requesters face an “asymmetrical distribution of knowledge” in challenging agency action because “the agency alone possesses, reviews, discloses, and withholds the subject matter of the request.” Yet that “nearly impregnable defensive position” depends on the agency’s ability to meet its burden “to sustain its action.” But a nominal burden on the agency is not enough. Basic principles of fairness require agency arguments to be subject to genuine adversarial testing. The unavailability of discovery in most cases, total absence of an administrative record, and selective application of the federal rules of procedure and evidence frustrate an equitable playing field.

Congress should adopt procedures that reduce this imbalance. It could require agencies to proffer more detailed declarations, strengthen Vaughn index requirements, authorize discovery when there is a material factual dispute, encourage the use of FOIA trials, reinforce in camera review, and make clear that agencies bear a meaningful burden to justify the reasonableness of their searches, withholdings, foreseeable-harm determinations, and segregability efforts.

Conclusion

FOIA is often considered an administrative problem. Agencies lack resources, backlogs continue to grow, and requesters face interminable delays. Those concerns are real, but they do not fully account for the statute’s declining effectiveness. At its core, FOIA enshrines a judicially enforceable right of access. Congress vested federal courts with responsibility for independently evaluating agency action under FOIA. Decades of litigation and institutional cultural shifts have eroded that design. The result is a system in which courts too often validate agency secrecy rather than engaging in true independent judgment with an eye toward openness. Congress should act to restore the judiciary to the role it envisioned.