| Welcome back to another edition of FOIA Files. Just a month into Trump’s second presidency, the FOIA has made its way into the swirling, political chaos. The administration’s mass firings of federal employees has impacted FOIA operations at some agencies, jeopardizing the public’s ability to access records. But there’s also a sliver of good news: At least one agency sent updated FOIA guidance this week instructing personnel to “maximize transparency” when processing requests. It’s too early to say what it all means for transparency, but there’s cause for concern. If you’re not already getting FOIA Files in your inbox, sign up here. I sound like a broken record, but it’s worth repeating now: The Freedom of Information Act is a crucial tool for keeping the public informed about what their government is up to. I have the receipts to back it up. Yet obtaining documents from government agencies via the open records law is a painstaking, tedious process. Requesters are forced to contend with backlogs and understaffed agencies, resulting in significant delays. Now there’s a new roadblock: requests that end up in limbo when an agency is essentially shut down. A few weeks ago, the US Agency for International Development was targeted for closure by billionaire Elon Musk’s Department of Government Efficiency, or DOGE. Nearly all of USAID’s employees were fired or placed on administrative leave. Naturally, I was concerned about what was to become of my outstanding requests, including one pertaining to Covid-related documents that I sued for five years ago. I emailed USAID’s FOIA office to check whether the agency was still working on my requests and planned to release documents to me. “Please be advised that USAID continues to process FOIA requests as required by statute and agency procedures,” one of the agency’s FOIA officers responded. Phew! Any sense of relief soon melted away. For the past three years, USAID has been releasing documents to me as part of an agreement I reached with the agency in my ongoing lawsuit. Earlier this week I received the government’s monthly status report in the case. In it the attorney representing USAID for the Justice Department, Jody Lowenstein, warned that the monthly production of records may soon come to an end. “Recent developments have disrupted USAID’s processing of” the request, Lowenstein wrote. “On February 10, 2025, the FOIA specialist assigned to this matter was placed on administrative leave and lost access to USAID’s systems.” The attorney noted that the FOIA specialist regained access to the systems three days later, after a federal judge granted a temporary restraining order to halt the purge of USAID employees. Still, the FOIA specialist’s return to the agency may be short lived. Later Friday, the judge is expected to decide whether to lift the restraining order or issue a preliminary injunction. There’s still “significant uncertainty” regarding the future of the agency’s FOIA operations, Lowenstein wrote. “USAID is unable at this time to reasonably project whether it will be able to make a production this month. The agency hopes to have greater clarity on this issue soon.” My attorney, Matt Topic, took a pretty aggressive approach in response to the developments. “If the President chooses to relieve USAID staff of their duties, he must implement some other mechanism to ensure the agency’s continued prompt production of records in compliance with FOIA,” Topic wrote in the status report. “Put simply, the Executive Branch may choose how to promptly produce records, but it may not simply ignore a law requiring it to do so.” We’re in uncharted waters here. And it’s not just USAID. At the Consumer Financial Protection Bureau, which was also decimated, it’s unclear if the agency is processing FOIA requests—my phone calls and emails have gone unanswered. At the Office of Personnel Management, CNN reported that the entire FOIA staff was fired. I asked the White House if it had a plan to ensure that FOIA requests would be processed at agencies that have been gutted. I haven’t received a response. Out of the darkness into the light. On Tuesday, the Department of Homeland Security sent a two-page memo that surprised me. It was sent to FOIA officers at all of its divisions and titled: “DHS Headquarters Guidance on Transparency and FOIA’s Reasonably Segregable Obligations.” The memo, a copy of which I obtained, was signed by Catarina Pavlik-Keenan, DHS’s deputy chief FOIA officer. It instructs personnel to “maximize transparency, with the intent to release as much as possible” when processing FOIA requests. That’s what the 2016 FOIA amendments that former President Barack Obama signed into law already states. Over the past nine years agencies, including DHS, fell far short of adhering to the new sections of the law. The memo goes on to say that DHS personnel “should minimize using a blanket use of ‘Withhold in Full’ for any type of record or document.” That’s a huge change. Agencies often refuse to release any records if, for example, it pertains to an ongoing investigation, threatens national security or involves trade secrets. They rarely conduct a line-by-line review of the records to determine if any portion could be released. The DHS memo now directs its FOIA staff to do just that, and at the very least disclose the title of a document, an author’s name or a page number. DHS staff were also given updated guidance on processing draft documents that are routinely withheld under Exemption 5, the so-called deliberative process privilege, FOIA’s most abused exemption. “Based on a recent review of record releases across the Department’s FOIA programs, DHS Headquarters has determined we need consistency on processing records as it relates to the Exemption 5, especially as it relates to draft documents,” the memo said. DHS FOIA offices were told they should immediately begin to “process draft records with the following considerations: draft records appearing within a responsive record set where the final policy or memo is implemented and subsequently released, should not be withheld under exemption 5.” I must say, I didn’t see this coming. Advising DHS personnel that they are obligated under the law to release documents in response to FOIA requests is a really positive development. I’ll believe it when I see the documents. Got a tip about DOGE and FOIA? Send me an email: jleopold15@bloomberg.net or jasonleopold@protonmail.com or send me a message on Signal: +1-213-270-4334. | 
