FOIA Backlogs Are Not a License to Close the File
Federal agencies face a genuine Freedom of Information Act problem: requests are increasing, processing resources are finite, and backlogs can extend for years. But administrative difficulty does not create statutory authority. A recent decision involving the Department of Energy illustrates that distinction and carries practical implications for government contractors that use FOIA as part of competitive intelligence and market research.
As Justin Doubleday reported for Federal News Network, U.S. District Judge Amy Berman Jackson on August 5, 2026, set aside a DOE policy requiring requesters with FOIA requests predating October 1, 2024, to affirmatively confirm that they remained interested in receiving the requested records. Failure to respond within the prescribed period could result in administrative closure. DOE defended the initiative as a response to a significant backlog, increased request volume, and what it characterized as requests generated by automated systems.
The court found a fundamental problem with the approach. FOIA directs agencies to make properly requested records available subject to statutory exemptions; it does not authorize an agency to impose a blanket requirement that requesters periodically reassert their interest simply because the agency has not completed processing. The court granted American Oversight summary judgment and set aside DOE's notice, although it did not issue the separate injunction the organization requested.
The decision should not be read as prohibiting every “still interested” inquiry. Department of Justice Office of Information Policy guidance has long recognized that such inquiries may sometimes be appropriate. But DOJ recommends reasonable grounds for making the inquiry, generally limiting it to one inquiry absent good cause, using appropriate communications, and restoring a request to its original position if it is reopened after a delayed response. That is considerably different from using a mass administrative mechanism to eliminate old requests.
For federal contractors, the case reinforces the strategic value of maintaining discipline around FOIA requests. Requests for historical acquisition materials, prior contracts, agency studies, organizational information, and other releasable records may remain pending well beyond the capture cycle in which they originated. A contractor should therefore maintain the agency control number, correspondence, scope of the request, and status of each submission rather than treating an old request as commercially irrelevant.
The larger lesson is about information asymmetry. Federal markets reward companies that understand not merely the current solicitation but the institutional history behind it. FOIA is imperfect, slow, and constrained by exemptions protecting matters such as proprietary information and privileged government material. Yet it remains one of the few statutory mechanisms through which contractors can obtain government records that may illuminate how requirements evolved.
DOE's backlog was real. The court's decision nevertheless reflects an important administrative-law principle: operational inconvenience does not permit an agency to rewrite the statutory bargain. For contractors pursuing government information, persistence remains part of the process.
Recommended FedContractPros.com Tool: Federal White Paper Drafting Kit. FOIA can uncover useful market and agency intelligence; the next challenge is converting that information into a disciplined, evidence-supported agency position. The White Paper Drafting Kit provides templates and workflows for doing that without beginning from a blank page.
Disclaimer: This article is for educational and informational purposes only and does not constitute legal advice. FOIA rights, exemptions, administrative procedures, and disclosure obligations are fact-specific. Contractors should consult qualified counsel regarding particular requests or disputes.