FOIA and “First Party” Disclosure Requests: Washington Lawyers’ Committee for Civil Rights and Urban Affairs v. DOJ
Access to government records is important for the general public in terms of governmental accountability and democratic governance, but may also be critical to assertion of a valid claim or defense in administrative proceedings or in assessing a potential legal challenge on behalf of an individual.[1] The Privacy Act, 5 U.S.C. § 552a, generally mandates disclosure of records about individuals to the individuals themselves. But the Privacy Act contains exceptions to this general mandate. 5 U.S.C. §552a(j)-(k). In such cases, individuals, and their legal representatives, can use the Freedom of Information Act to obtain such records.[2]
The problem with using FOIA requests in this way are the delays endemic to records production under FOIA. The first party with an urgent need for records to assess or pursue a claim or defense in an administrative proceeding or consider filing a lawsuit may be hampered by having to wait in line.[3] One example is access to A-files for those in immigration proceedings, which are essential to assessing the basis for and pursuing immigration claims, but which may be produced only after long delays.[4] FOIA does provide for expedited production of some documents, but the basis for expedited requests are not well tailored to first-party requests.[5]
Perhaps recognizing this issue, Attorney General Merrick Garland, in his March 15, 2022 Memorandum to Agencies Regarding Freedom of Information Act Guidelines, urged agencies to remove constraints on obtaining information by engaging in more proactive disclosure.[6] His first point regarding “removing barriers to access and reducing FOIA request backlogs” related to the provision of first-party records. He noted that the Justice Department’s Executive Office for Immigration Review had recently changed its long-standing policy that had required individuals to use FOIA to obtain official copies of their own records of immigration court proceedings.” He “encourage[d] all agencies to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests.”
In Washington Lawyers’ Committee for Civil Rights and Urban Affairs v. DOJ, Dkt. No. 24-5127, ─ F.4th ─, 2025 WL 2088557 (D.C. Cir. July 27, 2025), the D.C. Circuit waded into the issues of records disclosure in response to first-party FOIA requests. Plaintiff Lawyers’ Committee represents various individual incarcerated in the federal prison system. According to the complaint filed in the case, the Lawyers’ Committee “routinely represents individuals incarcerated in the BOP [Bureau of Prisons] in cases to uphold their civil and constitutional rights.” ¶2. Timely access to “individual clients’ records” as well as “BOP-wide data related to compliance with the civil and constitutional rights” of the imprisoned is crucial to such an endeavor. ¶3.[7]
The Lawyers’ Committee asserted a “pattern and practice” claim against the Bureau of Prisons. By the time the case reached the appellate level, the case focused upon the Lawyers’ Committee’s asserted need for prompt access to their client’s prison educational and disciplinary records. Washington Lawyers’ Committee, slip op. at 2, 9-10, 12-13. The group noted that the Bureau of Prisons had created a more expedited process under the Privacy Act, to promptly satisfy prisoners’ requests for medical records. The Lawyers’ Committee stated that, accordingly, the narrow segment of records covered by the policy were produced far more expeditiously than other prison records. The Lawyers’ Committee asserted that the Bureau of Prisons was obligated to adopt the same approach for prisoners’ educational and disciplinary records rather than requiring prisoners and their lawyers to file FOIA requests. The D.C. Circuit panel concluded that such a claim failed as a matter of law. Slip op. at 13-15.
The Court noted that the Privacy Act exempted from its scope records “maintained by an agency . . . which performs as its principal function any activity pertaining to the enforcement of criminal laws,” from “arrest or indictment through release from supervision.” 5 U.S.C. § 552a(j)(2). The Bureau of Prison’s had, accordingly, exempted many the records systems it maintained from the Privacy Act, 28 C.F.R. §16.97.
However, the Bureau had indeed voluntarily initiated an expedited process for providing prisoners’ medical records during the COVID-19 pandemic. It offered ready access to a prisoner’s last two years of medical records if sought by an attorney in support of a motion for compassionate release or a request for home confinement.[8] Declaration of Eugene Baime (Baime Decl.) ¶18 (Joint Appendix 67). The Bureau later expanded that system to apply to all attorney requests for their clients’ medical records, regardless of the specific purpose or the records’ timeframe.[9]
The Court held that FOIA did not require the Bureau to go even further than it already had in waiving the agency’s statutory entitlements to withhold documents under the Privacy Act. The Privacy Act, not FOIA, determines the extent of the Bureau’s obligations to allow access to its records by way of the Privacy Act’s non-FOIA processes. Slip op. at 13.
The Court emphasized the distinction between FOIA and the Privacy Act. FOIA’s purpose is to provide transparency to the public about the operations of government. The Privacy Act, by contrast, protects the privacy of personal information collected by the government.[10]
But the Court did not stop there, admonishing the Bureau Prisons to “up its game” in terms of FOIA disclosures. In its view the trial court record “suggest[ed] persistent failures to make exemption determinations, and repeated and prolonged delays, some lasting years, in the production under FOIA of the commonly requested types of records” the Lawyers’ Committee was seeking. It found the delays in providing those in BOP custody, and their lawyers, access to the client’s own records troubling as a practical matter, even if such concerns were irrelevant to the Lawyers’ Committee’s FOIA claim. Such records were “a discrete type of frequently requested record of obvious importance to efforts to vindicate constitutional rights.” Slip op. at 16.
The Court commended the Bureau for its innovative approach regarding the release of medical records to prisoners and their counsel under the Privacy Act. The Court seemed to assume that the innovation had “loosen[ed] the clogged FOIA pipeline;” but it is not clear the responses to Privacy Act and FOIA requests are handled by two distinct sets of agency employees. Thus, speedier access to a greater number of documents under the Privacy Act may lead to even more delayed FOIA responses, as resources are shifted from handling one set of document requests to the other. In any event, after commending the agency for its innovative approach to medical records, the Court pointedly asserted that “[g]iven its persistent backlogs and long wait times, the Bureau would do well to keep looking for new ways” to produce records in response to FOIA requests more promptly.
Note, some agencies, including most components of the Department of Justice, do engage in multi-track processing in which they categorize requests into two or more tracks and the process requests in each category on a first come/first serve basis. Typically, simpler requests will be placed in a different track than more complicated requests. Department of Justice, FOIA Update: OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports (Jan.1, 1997)(defining “multi-track processing”); Department of Justice, Responding to Requests (Dec. 7, 2023)(superseded)(most DOJ components use multi-track processing); e.g., Office of United States Attorneys, Department of Justice, Making a FOIA Request (updated Nov. 5, 2024).
In wrapping up the discussion of this particular aspect of the case, it is worth noting that information about an individual’s circumstances could lead to a broader public discussion of what the government “is up to”[11] and the manner in which government acquits its responsibilities ─ FOIA’s primary purpose. I have discussed this point previously, as, no doubt, have others.[12] Indeed, the Lawyers’ Committee alleged that the delay in responding the type of records it sought is “a contributing factor to the persistence of abuse in BOP facilities” and “the lack of scrutiny such abuses receive in the public.” The Lawyers’ Committee cited as an example “rampant staff abuse and noncompliance with agency policies” that led to the closure of one Bureau of Prisons facility and rampant sexual abuse at another facility that housed female prisoners. Complaint, ¶ ¶19 & n.1, 22 & n.3. Both incidents were not only matters of concern to the affected prisoners personally, but also to the public as a whole. Indeed, perhaps “a society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.”[13]
The Court also addressed a couple of issues relating to “pattern and practice cases” more generally.
The Court noted the parties’ disagreement on the standard for assessing whether declarations offered by the Government sufficed to justify a grant of a motion for summary judgment to dismiss a “pattern and practice” claim focused on failure to meet the statutory deadlines for production of records. The Lawyers’ Committee argued that the Bureau must demonstrate that it is “mak[ing] records available as quickly as possible.” The Government argued that that defendant agency need only show “good faith effort and due diligence” in responding to requests. Drawing on FOIA’s provisions regarding excusing an agency’s failure to produce documents within statutory deadlines, the Court suggested a third alternative: the Bureau must “show exceptional circumstances exist and that the agency is exercising due diligence.” 5 U.S.C. § 552(a)(6)(C)(i). But because neither party argued in support of that proposition the Court did not discuss it further. Slip op. at 10-11.
The Court asserted that proving that the agency generally attempts to respond to FOIA requests in good faith is not sufficient to entitle the government to summary judgment on a FOIA policy or practice claim. The Court otherwise concluded that it “need not spell out … the precise legal standard applicable to summary judgment motions in pattern and practice claims regarding unduly delayed agency document production in response to FOIA requests. In its view, the Lawyers’ Committee’s legal theory would fail under any applicable standard — as a matter of law FOIA did not require the Bureau to expand its responses to requesters under the Privacy Act. Slip op. at 11-12.
Nor had the trial court abused its discretion by failing to permit discovery prior to considering entry of summary judgement to the Government. The Lawyers’ Committee argued that the standard practice of limiting discovery in FOIA cases generally should not apply to FOIA “pattern or practice” cases. But again, because the Lawyers’ Committee’s claim failed as a matter of law, it could not support allowing plaintiffs to proceed with discovery under any standard that might be applicable. Accordingly, the Court had no need to decide whether the FOIA-specific discovery standard applies to policy or practice claims in the same way it does to other FOIA cases. Slip op. at 16-18.
[1] I have previously laid out five distinct normative arguments premises for access to public records in the United States, namely the sovereignty premise, the federal structure premise, the individual entitlement premise, the instrumental premise, and the economic premise. “Entitlement to Public Records: Beyond Citizenship,” 2015 International Journal on Open Government 311 (Proceedings for the 10th International Symposium on the Law and Open Government (Paris, France), Les Editions IMODEV). General public access to government documents instantiates the sovereignty premise, among others; the Privacy Act mandate that that individuals can obtain their own records primarily reflects the individual entitlement premise. See, Washington Lawyers’ Committee for Civil Rights and Urban Affairs v. DOJ, Dkt. No. 24-5127, ─ F.4th ─, 2025 WL 2088557, slip op. at 13-14 (D.C. Cir. July 27, 2025).
[2] MARGARET B. KWOKA, SAVING THE FREEDOM OF INFORMATION ACT 93-104 (Cambridge Univ. Press 2021)(discussing first-party use of FOIA in a wide variety of contexts).
[3] Nightingale v. U.S. Citizenship & Immigration Services, Dkt 19 Civ. 3512, Complaint, ¶¶2, 7 (N.D. Cal. June 19, 2019; American Immigration Council, A Step-By-Step Guide To Filing a FOIA Lawsuit at 1 (June 20, 2023), downloadable here (“[r]ecords held by federal agencies often provide information critical to determining whether immigrants are eligible for certain immigration benefits or relief from removal”) . The Nightingale plaintiffs alleged that USCIS A-Files contain information “critical” to determining noncitizens’ eligibility for an immigration benefit or status” or “defend[ing] against deportation,” id. at ¶2, and that ICE’s FOIA backlog had “prevent[ed] [p]laintiffs and [putative class members] from moving forward with petitions and applications,” ¶7.
I discuss this further in “The Fugitive:” ICE, Fugitives, and FOIA: (Part I), YALE J. ON REG.: NOTICE & COMMENT (Jan. 18, 2020) .
[4] SAVING THE FREEDOM OF INFORMATION ACT, supra note 2, at 80-92; Access to Public Records in Immigration Law: Reviewing Margaret B. Kwoka’s Saving the Freedom of Information Act, by Ingrid Eagly, YALE J. ON REG.: NOTICE & COMMENT (Feb. 9, 2022)(“massive delays in producing those records mean that immigrants are often denied benefits or deported without first being able to review their own records”); Alexander Shur, FOIA Victory Bolsters Calls For Real Immigration Reform, BORDERLESS MAGAZINE (June 1, 2021)(“[w]ithout their A-Files, noncitizens and naturalized citizens are less equipped or simply unable to confirm their legal status, apply for immigration benefits, defend against potential removal, adjust their status and more”).
[5] FOIA requires agencies to promulgate regulations providing for requesters to seek expedited processing where a “compelling need” can be demonstrated or in other circumstances determined by the agency. 5 U.S.C. §552(a)(6)(E)(i). When the requester is a person primarily engaged in disseminating information, “compelling need” can be established by showing an “urgency to inform the public concerning actual or alleged Federal Government activity.” Id. at §552(a)(6)(E)(v)(II). The standards for doing so are strict, Heritage Foundation v. EPA, 2023 WL 2954418 (D.D.C. April 14, 2023), and most individuals and their attorneys are not primarily engaged in disseminating information. See, id. at *3. Otherwise, to show compelling need the requester must show that the agency’s failure to expedite the request “could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.” Id. at §552(a)(6)(E)(v)(I).
[6] Attorney General Garland’s March 15, 2023 Memorandum, at pp. 2-3. The Memorandum is accessible by link in Press Release, Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency (March 15, 2023).
[7] Notably, the Bureau has an internal process for consideration of the grievances of those in its custody, at least when no monetary relief is sought. 28 CFR § 542.14-.15. (Monetary relief might be available through the Federal Tort Claims Act.) But the timeline for the complaint and the various stages of the appeals process are quite short. So to the extent that a prisoner would need documents within the Bureau’s possession to seek relief through such internal procedures, the time frame for production of materials under FOIA is far too slow. Outside the FOIA context, in McCarthy v. Madigan, 503 U.S. 140 (1992), the Court observed that “[o]ther than the Bureau’s general and quite proper interest in having early notice of any claim, we have not been apprised of any urgency or exigency justifying th[e] timetable for filing an initial complaint and appealing any unfavorable determination.” Id. at 152.
[8] See, Privacy Act of 1974; Systems of Records, 89 Fed. Reg. 49,906 (June 12, 2024) (Medical Records Notice); 28 C.F.R. § 16.97(a)(5).
[9] Medical Records Notice, supra note 8, 89 Fed. Reg. at 49,909.
[10] This reflects a distinction between the sovereignty premise and the individual entitlements premise of mandates that government records be accessible. See note 1 supra.
[11] U.S. v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973)(Douglas, J., dissenting), and Henry Steele Commager, The Defeat of America, THE NEW YORK REVIEW OF BOOKS, Oct. 5, 1972, at 7).
[12] Entitlement to Public Records, supra note 1, at 320-21 (noting that individuals should be entitled to appeal to the public for redress from mistreatment by the government). For an example of other scholars making a similar point, in reviewing Kwoka’s book, Saving the Freedom of Information Act, David Cuillier offered the following observation:
Kwoka made it clear that first-person requests could have oversight value, and her focus was primarily on the records requests that clearly are of a personal nature, such as immigration A-File records. Yet, digging a little deeper, perhaps we can find enormous benefits to society from these requests. For example, a study of the text of 1 million federal public records requests in Mexico, regardless of who submitted the requests, showed that two-thirds of them fulfilled a public-accountability purpose.)
[13] The quote is commonly attributed to Fyodor Dostoyevsky, but apparently the attribution is erroneous. Ilya Vinitsky, Dostoyevsky Misprisioned: “The House of the Dead” and American Prison Literature, LOS ANGELES REVIEW OF BOOKS (Dec. 23, 2019).
