Draft Statutory Reform Recommendation SR-5 – Judicial Review
I urge the Committee to reject Recommendation SR-5 in full. The three proposed amendments to FOIA's judicial review provision are poorly supported. The first would reaffirm a standard already in the statute and rests on weak evidence. The second raises serious constitutional concerns. The third addresses a problem that has not materialized. All three proposals share a
common flaw: they would tilt FOIA litigation in favor of requesters without adequate justification.¹
1. "Reaffirming" the review standard is pointless. FOIA already says courts must review agency decisions de novo. This proposal does not explain what new language would be added or what it would actually change. As written, it does nothing. The Committee should not waste its time, or worse, Congress's time, with symbolism.
Notably, the proposal leans heavily on a reported 90 percent government "win rate" in FOIA litigation. That figure traces to a study of appellate reversals in FOIA cases decided between 1990 and 1999. See Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679, 719, 730 (2002). But an appellate reversal rate measures something entirely different, namely how often circuit courts disturb district court rulings, not how often the government prevails overall. That courts of appeals rarely reverse district courts is unremarkable in any area of law. A ten percent reversal rate says nothing about whether district courts are applying de novo review correctly.
Even setting aside this methodological problem, a high government win rate would not by itself establish that courts are applying the wrong legal standard. One would expect the government's win rate in fully litigated FOIA cases to be high even under robust de novo review. Agencies are more likely to settle or release records in weaker cases before final judgment, leaving more of the stronger cases to be fully litigated. Requesters may also obtain meaningful interim relief even in cases ultimately recorded as "government wins," such as orders requiring additional searches, revised Vaughn indices, or supplemental briefing. And a meaningful share of FOIA plaintiffs are pro se, bringing cases that may lack legal merit regardless of how courts apply the standard. The recommendation addresses none of this, so the alleged win-rate figure proves very little.
2. Letting courts order agency-wide document releases is a bad idea. As the recommendation indicates, the Second and Ninth Circuits allow judges to order agencies to post records publicly in their online reading rooms, whereas the D.C. Circuit limits relief to the individual who actually sued. SR-5 would resolve the circuit split by siding with the broader approach. Although Congress may resolve circuit splits, there is no need to do so here because the D.C. Circuit has already adopted a well-reasoned approach that avoids constitutional concerns.
The recommendation's choice is also wrong. The D.C. Circuit's more limited approach is not an outlier. It is the position of the circuit that decides more FOIA cases than any other and whose views carry great authority. The recommendation barely engages with that court's analysis in Citizens for Responsibility & Ethics in Washington v. Department of Justice, 846 F.3d 1235 (D.C. Cir. 2017), which limited relief to individualized orders precisely because broader structural remedies raise separation-of-powers concerns. The recommendation's only response is that affirmative-disclosure obligations would otherwise be "merely hortatory." But that is a conclusion, not an argument. Many statutory obligations are enforced through individualized relief without becoming unenforceable.
More important, the broader approach raises real legal problems. Allowing a single FOIA lawsuit to trigger agency-wide disclosure obligations benefiting nonparties raises serious constitutional questions. The D.C. Circuit's concern about broader structural remedies in CREW is now shared by the U.S. Supreme Court, which recently signaled that injunctive relief may not extend beyond the parties before the court. See Trump v. CASA, Inc., No. 24A884 (U.S. June 27, 2025).²
3. Codifying a "standing" rule for FOIA plaintiffs solves a problem that doesn't exist. The alleged worry here is that a recent Supreme Court case (TransUnion LLC v. Ramirez) might be used to argue that FOIA requesters can't sue unless they show a specific personal harm. But courts have already rejected that argument consistently, and TransUnion itself said it wasn't meant to affect laws like FOIA. In short, there's no crisis to fix. If a genuine problem emerges, the Committee can act then.
The Committee should be selective in the legislative recommendations it advances. Its credibility with Congress is greatest when it reserves its efforts for proposals addressing real, well-documented statutory problems. None of the three proposals in SR-5 meets that bar. Forwarding SR-5 risks diluting more meaningful recommendations and wasting credibility on milquetoast proposals.³ The Committee tabled this recommendation at its last meeting for good reason and should reject efforts to revive it. If the Committee does not reject SR-5, the Archivist should not transmit it to Congress.⁴
Allan Blutstein
Arlington, VA
Member, FOIA Advisory Committee for the 2020-2022 term
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[1] All three authors of SR-5 represent the requester side of the Committee, and one also has extensive experience litigating FOIA cases on behalf of requesters. It is therefore unsurprising that SR-5 would generally strengthen plaintiffs' litigation position. What *is* surprising is that the government members of the larger Statutory Reform Subcommittee apparently did not oppose SR-5.
[2] SR-5 also proposes an exhaustion requirement for affirmative-disclosure claims that gives agencies notice and an opportunity to correct their noncompliance before facing suit. That proposal has merit. But that would only matter if the broader remedy is available in the first place, which it should not be.
[3] Among the statutory issues that might productively occupy the Committee's attention in the next term: fee reform, with an emphasis on increasing collection; still-interested letters; clawback of inadvertently disclosed records; and tolling during government shutdowns.
[4] Because the Department of Justice is responsible for the federal government's litigation positions in FOIA cases, other agency members on the Committee should defer to DOJ's assessment of whether these proposed statutory changes are necessary--as should the Archivist in the unfortunate event any of these proposals pass.