## Facts

- The Board of Immigration Appeals (BIA) issues tens of thousands of decisions annually; only a small number are designated precedential and published, while most are non-precedential unpublished opinions.
- Unpublished BIA opinions are regularly cited by the BIA, immigration judges, and government counsel, but were not readily accessible to non-government immigration practitioners.
- New York Legal Assistance Group (NYLAG) submitted a FOIA request invoking the “reading room” provision, 5 U.S.C. § 552(a)(2), seeking electronic public availability of all BIA unpublished opinions issued since November 1, 1996, and of future unpublished opinions.
- EOIR/BIA denied the request, asserting it was overbroad, the opinions were not covered “final opinions” or “orders” under § 552(a)(2), and FOIA did not allow NYLAG to demand public posting rather than requester-specific disclosure.
- NYLAG sued under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), and alternatively under the Administrative Procedure Act, seeking an order compelling the agency to make the opinions publicly available electronically.
- The district court dismissed, concluding § 552(a)(4)(B) authorizes only production to the complainant, not relief requiring public posting.
- NYLAG appealed.

## Issues

1. Whether FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), authorizes courts to order agencies to comply with § 552(a)(2)’s affirmative disclosure duties, including electronic public availability of covered records.
2. Whether a request for an order requiring public electronic access is cognizable FOIA relief, or whether FOIA remedies are limited to disclosure only to the requester.
3. Whether an agency’s failure to make § 552(a)(2) materials publicly available constitutes “withholding” remediable under § 552(a)(4)(B).

## Decision

- The Second Circuit vacated the dismissal and remanded.
- The court held § 552(a)(4)(B) empowers district courts to order agencies to comply with FOIA’s affirmative disclosure obligations under § 552(a)(2), including making covered documents publicly available in electronic form.
- The court rejected the view that FOIA relief is limited to providing records only to the complainant where the claim alleges a violation of § 552(a)(2).
- The court did not finally decide, at this stage, whether all unpublished BIA opinions qualify as “final opinions” or “orders” within § 552(a)(2).

## Legal Principles

- FOIA imposes both reactive disclosure duties (responding to requests under § 552(a)(3)) and affirmative disclosure duties (public inspection requirements under § 552(a)(2)).
- An agency “withholds” records for purposes of § 552(a)(4)(B) when it fails to satisfy § 552(a)(2)’s public-availability requirements for records that fall within that provision.
- District courts may grant injunctive relief to enforce § 552(a)(2), including orders requiring agencies to make covered records available for public inspection in an electronic format.
- The Electronic FOIA Amendments support interpreting FOIA to ensure enforceable, electronic public access to categories of records Congress required to be available without individualized requests.

## Conclusion

The Second Circuit held that FOIA’s remedial provision authorizes courts to compel agency compliance with § 552(a)(2)’s electronic reading-room obligations, vacated the dismissal, and remanded for further proceedings on whether the requested BIA decisions fall within FOIA’s affirmative disclosure categories.


N.Y. Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207 (2d Cir. 2021)