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]

Agency Regulations

While agencies are usually afforded deference in their interpretation of statutes they are tasked with administering,[3] agencies are not generally entitled to deference in interpreting FOIA. As the D.C. Circuit has noted, "No one federal agency administers FOIA. The meaning of FOIA should be the same no matter which agency is asked to produce its records. One agency's interpretation of FOIA is therefore no more deserving of judicial respect than the interpretation of any other agency."[4]

However, the D.C. 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." [5]

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.[6]
  • 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.[7]

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. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
  4. Tax Analysts v. I.R.S., 117 F.3d 607, 613 (D.C. Cir. 1997). See also Fed. Labor Relations Auth. v. U.S. Dep't of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989) ("As the FLRA is not charged with a special duty to interpret either the Privacy Act or the FOIA, we do not defer to its interpretations of those statutes but review them de novo."); Al-Fayed v. C.I.A., 254 F.3d 300, 307 (D.C. Cir. 2001) ("it is precisely because FOIA's terms apply government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would otherwise do under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).").
  5. 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)
  6. 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)
  7. 5 U.S.C. § 552(a)(4)(vii).