Standard of Review

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This article is part of a series on Litigation


Standard of review refers to the level of scrutiny applied by judges. FOIA cases are general reviewed de novo,[1] meaning that the court looks at each case anew. No deference is given to agency determinations made during the administrative process.

It should also be noted that the defendant agency maintains the burden of proof to justify its decision to withhold any information.[2]

Possible Exceptions to the "De Novo" Standard

  • When Exemption 1 is invoked, most courts apply a highly deferential standard of review for classified documents in order to avoid compromising national security.[3]
  • The Court of Appeals for the District of Columbia Circuit has observed that, in cases where an agency has established additional grounds for expedited processing, the applicable regulation and the agency's interpretation of it are "entitled to judicial deference." [4]
  • Note that on fee waiver issues, the court's review, while de novo, is limited to that information which is contained within the administrative record.[5]

Recent district court opinions on standard of review

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See Also

External Links


  1. 5 U.S.C. § 552(a)(4)(B)
  2. 5 U.S.C. § 552(a)(4)(B)
  3. ACLU v. DOD, 628 F.3d 612, 624 (D.C. Cir. 2011); Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009)
  4. l-Fayed, 254 F.3d at 307 n.7. Contra ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 U.S. Dist. LEXIS 3763, at *22 (N.D. Cal. Mar. 11, 2005)
  5. 5 U.S.C. § 552(a)(4)(vii).