Nieman Foundation at Harvard
During the first Trump administration, one law arguably played an outsized role in fueling accountability reporting on the federal government. The Freedom of Information Act, or FOIA, has long been a cornerstone of investigative journalism in the U.S. Documents obtained through FOIA requests underpinned countless marquee investigative stories during Trump’s first term.
As bleak forecasts circulate about how the new administration might impact the lives and work of journalists in the U.S., I was curious to learn how the climate around government transparency and FOIA compliance might change. Is FOIA on solid footing as Trump heads back to the White House or could it be undercut by legislation — or, more discreetly, chipped away at, agency by agency?
I spoke to several FOIA experts. None of them framed their concerns about FOIA as existential; no one I spoke to anticipated the law itself would be undone after Trump came into office. Rather, they pointed to trends from the first Trump administration, and forecasted that bureaucratic barriers to processing FOIAs will grow more challenging in the coming years.
To be clear, the federal government’s FOIA compliance is already in a dire state. The Biden administration is far from a beacon of transparency when it comes to responsiveness to FOIA requests. As of the third quarter of 2024, federal agencies had a backlog of over 222,000 FOIA requests, an increase of 10% from the previous year.
By law, federal agencies are given 20 business days to respond to a standard FOIA request. Under the Biden administration, a FOIA request to the FBI that returns zero to 50 pages has an average processing time of four months. Request anything over 50 pages from the FBI and you’re likely to wait more than two years.
Anecdotally, back in March 2023, I filed a FOIA request with the Department of Homeland Security. In October 2024, more than 18 months later, I finally received a response: a seven-page spreadsheet. In the world of FOIA, I could be considered one of the lucky ones. After all, I didn’t even have to file a lawsuit.
“It’s a national disgrace, that’s what I’d call it,” said Matt Topic, a partner at the Chicago-based civil rights law firm Loevy & Loevy, who has represented countless media organizations in FOIA litigation over the past decade. Topic, like others I spoke to, is not necessarily bracing for a spike in overall denied requests during the coming Trump administration. Instead, he forecasts it will bring further processing delays and that, as a result, there will be more lawsuits to try to compel agencies to release documents on reasonable timelines.
It’s hard to talk about trends in FOIA processing monolithically, given how much discretion there is agency to agency. But one trend from the first Trump administration is overwhelmingly clear and likely to be repeated. During the early Trump years in office, across the board, the number of FOIA requests received by the federal government jumped dramatically.
Between 2016 and 2017 the number of FOIA requests received by the government increased by roughly 20,000, according to data from FOIA.gov. In 2018, those requests grew by another 40,000, totaling nearly 864,000. They have only continued to go up.
“If you’re going to make a bunch of rather dramatic policy changes, people want to get a lot of documents around that,” said Topic. “So the backlogs really got worse starting in 2016, and they’ve never gotten better.”
Reader intrigue about the inner workings of the Trump administration and a wave of investment in newsrooms to build out investigative and accountability coverage all fed a spike in requests from journalists. But an unprecedented number of filings by nonprofit and advocacy groups also contributed to the surge.
“What’s very clear is that the agencies were getting a lot more requests [under Trump],” said Jason Leopold, who writes FOIA Files, a Bloomberg newsletter about uncovering never-before-seen government documents. “They just didn’t hire more people to process those requests.”
In his first days in office, Trump instituted a government-wide hiring freeze, and then sought to downsize many federal agencies, putting even more burden on understaffed FOIA offices. To this day, resources allocated to FOIA have not changed dramatically, despite demand continuing to rise. In the 2023 fiscal year, the total number of new FOIA requests reached one million for the first time.
“The backlog started to build right away, but I didn’t really see the bottleneck appear until late 2018,” said Leopold, who was an investigative reporter at Buzzfeed News during the first Trump administration. That bottleneck can be seen clearly in the number of FOIA lawsuits filed against the federal government during that time.
The FOIA Project, run by a nonprofit research center out of Syracuse University, kept a count of FOIA lawsuits filed by independent reporters and news media organizations. In 2016, the final year of the Obama administration, The FOIA Project counted 40 FOIA lawsuits filed by journalists. In 2017, that figure had more than doubled, totaling 90 lawsuits.
In total, across the first Trump administration, the tracker documented 368 lawsuits filed by journalists across federal agencies. That is more than the 311 FOIA lawsuits filed by news media during the 16 years prior to Trump coming to office, encompassing both the Bush and Obama administrations. (The FOIA Project’s litigation data ends in September 2020, which doesn’t allow for an apt comparison to the Biden years).
“Most things that I litigate are predicated not on the agency invoking exemptions, but just that the agency has blown past their deadlines. In many ways, FOIA is now a question of resources,” said Adam Marshall, a senior staff attorney at the Reporters Committee for Freedom of the Press. “I can’t say that’s a unique feature of the first Trump administration, but some of the policies of that administration exacerbated that phenomenon.”
Leopold told me he has participated in nearly 150 FOIA lawsuits during his career. The vast majority of those suits concerned processing delays, rather than fighting FOIA exemptions in court. “The lawsuit is a vehicle by which you get records released faster. It’s not supposed to work that way, but it’s the reality,” he said.
All signs point to the second Trump administration inciting a similar domino effect, where a filing spree brings longer delays and a corresponding turn to the courts. “One thing that you can be guaranteed, you’re going to see more requests being filed again, just as it was in 2017. There’s just no question,” said Leopold. “In fact, I’m sure it’s starting already, and I know that I’ve already fired off a whole bunch of requests.”
A natural question is if the Trump administration is likely to drag out FOIA processing times, would the administration undercut FOIA more directly, even legislatively?
FOIA has long been a lever pulled by conservative watchdog groups and think tanks, experts repeatedly told me. Just as progressive organizations use the law to buttress their government accountability work, FOIA is a tool regularly used to further conservative policy and advocacy agendas.
Last month, ProPublica reported that The Heritage Foundation, a conservative think tank, had flooded federal agencies with thousands of FOIA requests. The requests were aimed at identifying individual government workers who had used phrases like “climate equity” and “SOGIE” (sexual orientation, gender identity, and expression) in their communications. The goal was to create a list of federal workers who could potentially be purged from government agencies if Trump was reelected.
The Heritage Foundation’s commitment to FOIA is even clearer in “Mandate for Leadership: The Conservative Promise,” the policy document better known as Project 2025. The report specifically recommends a Trump administration increase responsiveness to FOIA requests about abortion pills, including government inspections of facilities run by pharmaceutical companies Danco Laboratories and GenBioPro. Those companies are among the leading producers of mifepristone in the United States.
Though FOIA isn’t named outright, Project 2025 also encourages making public internal communications about the Treasury Department’s office for Diversity, Equity, Inclusion, and Accessibility, which was formed during the Biden administration. The suggestion is in line with recent targeting of “DEI” initiatives by conservative political groups and Trump’s use of the term as a dog whistle on the presidential campaign trail.
All this isn’t to say the work of many journalists won’t be made harder by FOIA policies and resourcing decisions made across a government with Trump-appointed officials.
In another section of Project 2025, the report’s authors comment on the Office for Civil Rights and Liberties (CRCL). Under the Department of Homeland Security (DHS), the CRCL has a dedicated FOIA officer who handles the release of documents about civil rights abuse investigations to the public, including investigations into federal immigration agencies. “Although the CRCL Officer and the Freedom of Information Act (FOIA) Officer/Privacy Officer are statutory, their offices are not mandatory,” reads the report. It goes on to encourage a disinvestment in these roles, in order to “recalibrate CRCL’s scope and reach.”
While Project 2025 encourages processing FOIA requests about abortion pills, in nearly the same breath, it calls for less dedicated personnel to handle FOIA requests about DHS civil rights abuses.
A couple examples of this politicized approach to FOIA processing have surfaced from the first Trump administration.
In 2022, the inspector general of the Department of the Interior released a report on the agency’s FOIA policies during the first Trump administration, particularly a policy called “awareness reviews.” The report found that the Trump-era policy, instituted in 2018, required some types of FOIAs be sent up the ladder to higher-ups in the agency, including political appointees. This policy led to routine delays and, at times, changes to the documents ultimately shared with the requester, including reducing the number of files. The report alleged the policy led to “political considerations” entering the FOIA process.
For reference, in 2018, the Department of the Interior was the third most-sued federal agency under FOIA, surpassed only by the Department of Justice and the Department of Homeland Security.
There will be early tests for the new Trump administration that FOIA experts are keeping an eye on. These could be barometer readings for how much political pressure agency officials are putting on FOIA officers.
Leopold, for one, points to FOIA requests for documents that shed light on federal criminal investigations into Donald Trump and his associates, considering these documents could undermine the White House politically.
He also suggested paying particular attention to the date January 20, 2026. By law, presidential records are not subject to FOIA until five years after an administration ends. That day is when the records from Trump’s first term can be probed through requests for the first time. Most of the journalists I spoke to already have the day marked in their calendars.
“It’s gonna be a battle, it is already a battle to get records, but it’s gonna be a battle,” said Leopold, reflecting on how he’s preparing for the next four years. “And to be quite honest, I kind of enjoy the battle.”
A previous version of this article stated that federal agencies have 20 business days to fulfill a FOIA request. In fact, agencies have 20 business days to respond.
