Emails Received from DOE, from Top to Bottom:
1) Thursday, August 21, 2025; 2) Wednesday, December 31, 2025; 3) Thursday, April 23, 2025
The Archive's 2026 Sunshine Week FOIA Audit
Law Gives Agencies 20 Working Days to Respond; Agencies Give Requesters…3, 5, 7 Working Days? Or Close
Washington, D.C., March 16, 2026 – In 2025, the Department of Energy gave the National Security Archive 3 business days to clarify a Freedom of Information Request that had generated nearly 100,000 pages of potentially responsive material, otherwise the request would be “voluntarily withdrawn.” On August 21, 2025, the DOE Office of the General Counsel wrote:
“We conducted a search for the parameters provided and the search results were 92,823 pages of potentially responsive material. This is over the voluminous threshold of 5,000 pages and requires the requester to narrow the scope of their request. If you are still interested in the request, please provide a narrowed scope within three business days…If we do not receive a response within 3 business days, we will consider your request voluntarily withdrawn.” (emphasis added)
Our request asked for copies of Department of Defense annual greenhouse gas inventory reports from 2009 to 2023 submitted to the Department of Energy’s Federal Energy Management Program. Sanitized summaries of DOD’s inventories can be found online, but the 92,823 responsive pages are integral to the public’s understanding of agency’s historically obscure emissions trends and their impacts on the planet’s warming climate.
This important request is one of multiple instances in the last two years in which the Department of Energy has threatened to close access to information cases unless the Archive responded to a clarification request within 3 to 7 days. In none of these cases was the Archive notified of a right to appeal the agency’s determination. In 2025, two such demands from DOE came over federal holidays.
The National Security Archive’s 2026 Sunshine Week Audit examines how federal agencies use “clarification of scope” letters to flip the burden of FOIA search and review onto requesters by punting their statutory responsibility. In total, we recorded 26 instances between 2024 and 2025 in which agencies used inconsistent parameters to clarify or narrow the scope of Archive FOIA requests. In 18 of those cases, agencies also threatened to administratively close the request if the deadline was not met.
By far the biggest wielder of the “clarify or close” strategy is the Department of Energy, which, on top of its unacceptably short response time, also introduced new language that requests would be “voluntarily withdrawn” instead of “administratively closed”—another subtle but distinct way the agency has shifted the onus to the requester. Other frequent users of the “clarify or close” strategy included the Department of State, the National Guard Bureau, and the U.S. Air Force.
In the case cited above, DOE also invoked the FOIA’s “voluminous” scoping parameter, which allows an agency to potentially charge the requester with search and duplication fees if it finds that “more than 5,000 pages are necessary to respond to a request.”[1] The provision requires the agency to provide plenty of notice and to make at least three good faith attempts to contact the requester about modifying the scope of the request, but it can sometimes spook inexperienced requesters into narrowing the focus of their requests more than necessary. FOIA requesters are not required to rescope if a search surpasses 5,000 pages.
The FOIA has only two requirements: a request must 1) reasonably describe such records and 2) be made in accordance with published rules [5 U.S.C. 552(a)(3)(A)]. Further court guidance outlined in DOJ’s Procedural Requirements explains that “the key to determining whether a request” is reasonably described “is the ability of agency staff to reasonably ascertain exactly which records are being requested and to locate them.”[2] That’s why, in the initial stages of a FOIA request, it can be common and even appropriate for an agency to reach out to the requester asking to rescope, narrow, or clarify a request while also informing the requester of his or her appeal rights.
But the National Security Archive’s 2026 Audit is concerned with agency conduct after a search for documents has begun. At this stage in the review process, we’ve found that agencies will request increasingly excessive information to clarify a request that has already been reasonably described. When combined with the threat of closure and exclusion of appeal rights, these restrictive requests for additional information undermine the rights of a requester.
In 2024 and 2025, multiple agencies sought clarification on National Security Archive requests that didn’t require clarification in the first place after a search for records had already begun. Each of our initial requests included an appropriate date range, identified with specificity the types of documents sought, and identified either specific agency offices or officials as a starting place for the agency to search—clearly enough information to be considered “reasonably described” under the FOIA and by the courts.[3]
Still, our 2026 Audit found that agencies requested a range of excessively restrictive clarifying information, including:
These clarifying requests are problematic because they put the requester at a severe disadvantage, requiring additional information beyond what they would reasonably be expected to know about the records they seek. Identifying key personnel and offices can be difficult, even for seasoned researchers, since agencies do not always publicize detailed or up-to-date organizational charts and contact information.
Requesters should of course do their research before filing a request, but agency FOIA officers are the experts in searching for relevant documents, or in knowing which agency officials are subject matter experts and should be consulted during the search and review process. The fact that a search might be time-consuming for the agency does not inherently make a request defective, nor does it require the requester to jump through extra hoops to make that search easier.[4] At the very least, agencies shouldn’t threaten requesters with inappropriately short deadlines that seem designed to eliminate FOIA requests rather than to provide access to government records.
This year’s Audit builds on the National Security Archive’s 2021 Audit, “‘Still Interested’ Letters Add Insult to Injury of Long-Ignored FOIA Requests,” that examined unfettered agency use of “still interested” letters as a means to close out pending FOIA requests.
This past summer, DOE—the most frequent user of “clarify or close”—took drastic measures to clear out its own FOIA backlog. On August 14, 2025, the agency published an unprecedented notice in the Federal Register announcing it was closing all FOIA requests submitted prior to October 1, 2024. The sweeping notice was published without a general announcement or public comment period, and the agency required affected requesters to affirmatively contact the agency at a designated email address within 30 days of the notice if they wanted to avoid the administrative closure of their requests.
DOE cited “efforts to increase efficiency, reduce the backlog of the Freedom of the Information Act (FOIA) requests, and assist those requesters still interested in processing FOIA requests” as its reasoning for the blanket closure. But the move indiscriminately impacted thousands of outstanding requests regardless of when they were submitted. In fact, the agency’s sweeping policy affected 93 Archive requests that were submitted anywhere from less than two years ago to over a decade ago. Regardless of how long requests have sat in DOE’s queue (no doubt due to the agency’s own failures in responding to requests in a timely manner), the FOIA says nothing about closing out cases arbitrarily.
Days after DOE posted the Federal Register notice, American Oversight, a government watchdog, filed a lawsuit against the agency, arguing that the notice burdens “requesters by demanding proactive, duplicative confirmation of FOIA requests without notice.”[5] Likewise, the Project on Government Oversight released a public comment slamming DOE for flouting DOJ’s “still interested” guidance which recommends *a minimum* of 30 working days for requesters to respond.[6]
Like “still interested” letters, clarification letters have evolved into an excuse for agencies to close out pending FOIA requests. Unlike with “still interested” letters, however, the Office of Information Policy stops short of providing guidance on how to approach clarifying and scoping requests and what to do if a requester doesn’t respond within the allotted time. Agencies have different resources and capabilities, leading to the array of inconsistent, disparate, and confusing requests for additional or clarifying information we are seeing from agencies across the federal government.
To ameliorate this growing problem, the National Security Archive recommends that agencies establish individual “clarification of scope” guidance that gives requesters *a minimum* of 30 workings days—the same amount of time OIP advises on “still interested” letters—to provide an agency with necessary clarifying information. By having agencies create their own individual guidance, they can work with OIP and the Office of Government Information Services to provide an agency with the requested additional information. Guidance should include best practices on what to include in “clarification of scope” letters, such as suggestions for ways to scope the request, within the parameters of the agency capacities. And more importantly, agencies should also be required to provide requesters with appeal rights if it threatens to “administratively close” a request.
OIP and OGIS can help by providing training to FOIA staff on how to communicate with requesters to help narrow the scope when appropriate, after a search has begun.
The “clarify or close” problem is a symptom of an overall weakening of the public’s ability to access government records in recent years that has left agency FOIA offices understaffed and in a state of disarray, even before the full impacts of budgetary cuts to agencies across the government have been realized. The 2025 slashing of federal funds to many government agencies, including the National Archives and Records Administration, and the institutional knowledge loss that came with the administration’s “deferred resignation” option is likely to make things ever worse. Under these circumstances, agencies strapped for resources and personnel may well continue to resort to “clarify and close” and similar strategies just to keep up with the flood of requests.
Ultimately, it is up to agencies, with guidance and training support from entities like the OIP and OGIS, to navigate their individual clarification parameters and address their backlogs—without putting the burden on requesters to do FOIA officers’ work for them.
* * *
This is the Archive’s 24th FOIA Audit. FOIA Audits use open-government laws to test whether agencies are obeying those same laws. Recommendations and findings from previous Archive FOIA Audits have: directly led to FOIA fixes in both the 2016 FOIA Improvement Act (25-year B5 sunset) and the Open Government Act of 2007 (requiring agencies to report their ten oldest pending requests); exposed OMB’s lack of action on FOIA fee regulations, ultimately prompting an Administrative Procedures Act lawsuit filed by Cause of Action that forced the agency to craft new (albeit lackluster) regulations; forced agencies to craft explicit customer service guidelines; mandated FOIA backlog reduction; institutionalized the use of individualized FOIA tracking numbers; led to reporting requirements on the average number of days needed to process requests; and revealed the (often embarrassing) ages of the oldest pending FOIA requests - like FOIA requests so old they could rent a car. The surveys include:
[1] The Freedom of Information Act, 552(a)(4)(A)(viii)(II)(bb)
[2] Department of Justice Guide to the Freedom of Information Act, “Procedural Requirements,” updated August 15, 2025 (See Page 26 “Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding request encompassing over 1,000,000 computerized records to be valid because “[t]he linchpin inquiry is whether the agency is able to determine ‘precisely what records [are] being requested’”).
[3] Inst. for Justice v. Internal Revenue Serv., 941 F.3d 567, 572 (D.C. Cir. 2019)
[4] DOJ Procedural Requirements, 2025
[5] American Oversight, “American Oversight Sues Trump Administration Over Unlawful Effort to Shut Down FOIA Requests,” September 3, 2025.
[6] Scott Amey, Project on Government Oversight, “Energy’s ‘Still Interested’ Policy Violates Open Records Law,” September 12, 2015.