FOIA Lawsuits Show Why the 120th Congress Must Investigate
When Oversight Falls to FOIA: Why the 120th Congress Must Investigate and Legislate
In short: In 2025 and 2026, the executive branch carried out major domestic enforcement operations, military strikes, and actions against public officials. In our view, Congress did little to examine them. To fill that gap, the Biazzo Law Government Oversight Program began filing Freedom of Information Act (FOIA) requests in March 2026. It asked DHS, ICE, CBP, the FBI, the Department of Defense, and the Justice Department for the rules that govern their conduct.
No agency made a timely decision, so in April 2026 we sued four agencies in three federal lawsuits. Every record released so far came only after we sued, and much of it is heavily redacted. At least 12 more requests remain overdue. FOIA is a citizen's tool. It cannot replace the constitutional check that only Congress can provide. The 120th Congress should use its investigative powers and pass laws so these problems do not recur under any President.
Key takeaways
More than 20 FOIA requests went to six federal agencies and offices in March and April 2026. They covered use of force, home entry without a judicial warrant, detention of U.S. citizens, protest monitoring, large enforcement operations, military strikes, and actions against retired service members.
Three lawsuits were filed in the U.S. District Court for the Southern District of Florida: Biazzo Law, PLLC v. DHS & ICE, No. 0:26-cv-61089; v. Department of Defense, No. 0:26-cv-61107; and v. FBI, No. 0:26-cv-61165.
Records arrived only after suit, and heavily redacted. The War Powers reporting and "imminent threat" records requested from the Department of Defense have not been produced.
Checks and balances depend on Congress. Congress can subpoena records, require testimony, request GAO and inspector general reviews, and change the law. FOIA requesters can do none of those things.
There is a path forward. Our model bills for the 120th Congress and investigative plan show how to substantiate these problems and fix them for every future administration.
Why did a law firm start doing Congress's oversight work?
The Constitution makes Congress the primary check on the executive branch. Congress writes the laws, funds the agencies, and has the power to investigate how laws are carried out. McGrain v. Daugherty, 273 U.S. 135 (1927).
During the 119th Congress (2025–2026), federal courts decided many cases about executive power. They addressed tariffs, National Guard deployments, unlawfully appointed prosecutors, removals that violated court orders, and the use of force by federal officers. In the Oversight Program's view, Congress did not use its subpoena and hearing powers to obtain the policies and legal opinions behind these actions. When Congress does not ask, the public often cannot learn what rules the government is following.
The Oversight Program therefore turned to the one tool available to every citizen, FOIA (5 U.S.C. 552).
Most of the requests sought final policies, directives, training materials, and legal opinions: the agencies' "working law." Those requests expressly excluded drafts and deliberative material. A few others sought communications about specific matters. The goal was not to obtain anyone's private information. It was to learn what legal limits the government says apply to its own conduct.
What did the Oversight Program ask for?
Agency | Dates sent | Subjects |
ICE | March 13–14 and 23, 2026 | Use of force in public operations; home entry without a judicial warrant; detention of people who claim U.S. citizenship; treatment of people who observe or record enforcement; Operation Metro Surge (Minnesota) and Operation Midway Blitz (Chicago) |
DHS | March 2026 and April 6, 2026 | Facial recognition; monitoring of domestic protest activity; communications about payments or arrangements involving DHS contractors and an outside adviser |
CBP | March 23, 2026 | Its role in Operations Metro Surge, Midway Blitz, and Charlotte's Web (Charlotte), including the legal basis for operating away from the border |
Department of Defense | March 15–16, 2026, and later | Investigations, discipline, and reductions in retired grade for retired service members; procedures for War Powers Resolution reports to Congress; legal standards for "imminent threat" use of force; records of military strikes |
FBI | March 2026 | Monitoring of social media, including protest activity |
Justice Department | March 19 and April 6, 2026 | Office of Legal Counsel opinions, including on the March 31, 2026 executive order on federal elections; the Criminal Division's investigation involving the Chair of the Federal Reserve |
Each of these subjects connects to an issue addressed in our model legislation. They include military force and war powers reporting (Bill 1), retaliation against retired service members serving in Congress (Bill 4), Justice Department integrity (Bill 5), federal election authority (Bill 6), and federal use of force, home entry, and citizen detention (Bill 8).
What happened when the agencies did not respond?
FOIA requires an agency to decide within 20 working days whether it will comply with a request. 5 U.S.C. 552(a)(6)(A)(i). If it does not, the requester may go to court. Id. § 552(a)(6)(C). None of the agencies made a timely decision. The DHS and ICE complaint alleges that the agencies logged the requests and assigned them tracking numbers in their own systems, yet sent no acknowledgment or decision. The Oversight Program gave written notice of intent to sue on April 10, 2026, and then filed three suits in the
U.S. District Court for the Southern District of Florida:
Case | Filed | Defendants | Requests in the suit |
No. 0:26-cv-61089 | April 14, 2026 | DHS and ICE | Facial recognition; protest monitoring; home entry without a judicial warrant; observers of enforcement; detention of U.S. citizens; use of force; Operation Metro Surge |
No. 0:26-cv-61107 | April 15, 2026 | Department of Defense | Actions against retired service members; War Powers Resolution reporting; "imminent threat" legal standards |
No. 0:26-cv-61165 | April 21, 2026 | FBI | Social media and protest monitoring |
The complaints seek declaratory and injunctive relief requiring the agencies to search for and release non-exempt records. As of our October 22, 2026 status report, the cases stood as follows:
All four agencies answered in May 2026, and the court has issued no ruling on the merits. In July 2026, at the government's unopposed request, the court paused the DHS and ICE case while the agencies process records. The agencies must file status reports every 60 days.
Every record released so far came only after we sued.
DHS released 38 pages: a 2023 facial recognition directive, its implementing instruction, and a Secret Service privacy assessment. It released nothing on protest monitoring and nothing dated after January 2025. About 296 pages remain out for consultation with other offices.
ICE released 654 pages, most heavily redacted. They include its 2023 use-of-force directive and training materials marked for surge operations. Its May 2025 and January 2026 memoranda on home entry under administrative warrants are almost entirely withheld. About 140 pages carry markings for the deliberative-process exemption, even though the requests excluded deliberative material.
The FBI released one 47-page appendix to its investigative guide, dated 2023. Most of its operative text is withheld, and the FBI called the release "first and final."
The Department of Defense released one page: a 2023 memorandum delegating authority to lower officers' retired grades. It has produced nothing on War Powers reporting or the "imminent threat" standard, and its own estimated completion date has passed.
At least 12 more requests are overdue. They include three to the Office of Legal Counsel, which placed one on its "complex" track and said some records were likely classified. They also include a Criminal Division request that the Justice Department estimated would take about 650 days, and a Department of Defense request for strike records that was granted expedited processing but is past its estimated date. Six requests to ICE and CBP on the Chicago, Charlotte, and Minnesota operations are also pending.
These delays have more than one cause. Data from the National Archives' Office of Government Information Services shows that from fiscal 2024 to fiscal 2025, full-time FOIA staff at the agencies it tracks fell 16 percent while backlogs rose 27 percent. Understaffing predates this administration. Whatever the cause, the result is the same: the public still does not know many of the rules governing federal force, surveillance, and military action.
Why can't FOIA replace congressional oversight?
FOIA is valuable, but it was never meant to be the main check on executive power. The comparison below shows the gap.
FOIA requester | Congress | |
Timing | Agencies decide when to search and release, and backlogs can run for years. | Committees set deadlines and can compel compliance. |
Exemptions | Nine exemptions allow withholding, including for deliberative, law-enforcement, and classified material. | FOIA's exemptions do not bind Congress (5 U.S.C. 552(d)). Committees can review classified and sensitive records under secure procedures. |
Testimony | No power to question officials. | Can require testimony under oath and hold hearings. |
Independent review | None. | Can direct GAO audits and request inspector general investigations. |
Remedy | A court order to release records. | Funding decisions, new laws, confirmation votes, and, where warranted, impeachment. |
The framers built the system so that "ambition must be made to counteract ambition" (The Federalist No. 51). That design works only if each branch uses its powers. In 2025 and 2026, federal courts carried much of the burden of checking executive action, one case at a time. Courts can decide only the disputes brought to them. They cannot set policy, fund agencies, or write rules for the future. When Congress does not use its oversight power, the balance the Constitution intended weakens no matter which party holds the White House.
On January 3, 2027, the 120th Congress can act without any President's signature. It can:
hold oversight hearings;
issue subpoenas;
request GAO and inspector general reviews;
obtain the records FOIA requesters cannot.
It can also enact laws, which require the President's signature or a two-thirds vote of each House to override a veto.
What should the 120th Congress investigate?
Our FOIA requests point to specific questions the committees can answer with full access:
Use of force and home entry. What rules govern force in public operations and entry into homes on administrative warrants? Have they been followed? (House and Senate Judiciary; Homeland Security)
Detention of U.S. citizens. How many citizens have been detained, for how long, and how are their claims verified? (Judiciary; Homeland Security)
Large enforcement operations. What legal authority and operational plans supported Operations Metro Surge, Midway Blitz, and Charlotte's Web? What role did CBP play away from the border? (Homeland Security; Judiciary)
Surveillance of protest and speech. What policies govern facial recognition and social media monitoring of lawful protest? (Judiciary; Homeland Security)
Military force and war powers. What legal standard does the Department of Defense apply to "imminent threat"? How does it prepare War Powers Resolution reports to Congress? (Armed Services; Foreign Affairs; Foreign Relations)
Actions against retired service members in public life. What policies govern investigating retired members and lowering their retired grades? (Armed Services)
Legal opinions and investigations. What Office of Legal Counsel opinions support the March 31, 2026 executive order on federal elections? What records exist on investigations involving independent officials, such as the Chair of the Federal Reserve? (Judiciary; House Administration; Rules)
FOIA itself. Why are agencies missing statutory deadlines? Are exemptions being applied to records that are not exempt? (Oversight; Homeland Security and Governmental Affairs)
Each line of inquiry should state the legislative purpose it serves and rest on documented facts. That is the standard the Supreme Court set in Trump v. Mazars USA, LLP, 591 U.S. 848 (2020). Our investigative plan lists witnesses, records, and sequencing in detail.
What laws would prevent these problems from recurring?
Investigations find facts. Laws change the rules. The Oversight Program's eight model bills, explained in our resource guide for the 120th Congress, answer the issues our FOIA requests raised:
Issue raised by the FOIA requests | Model bill provision |
Use of force, body cameras, and identification of officers | Bill 8 §§ 4–6: evidence preservation and sharing with state investigators, body cameras, visible identification |
Home entry on administrative warrants | Bill 8 § 7: judicial warrant required to enter a home for a civil immigration arrest, absent consent or exigent circumstances |
Detention of U.S. citizens | Bill 8 § 8: prompt opportunity to prove citizenship and quarterly reports to Congress |
Military strikes and "imminent threat" | Bill 1 §§ 5–7: funding limits on unauthorized hostilities, 48-hour reports with legal basis and targeting criteria, a law-enforcement framework for drug interdiction at sea |
War Powers Resolution reporting | Bill 1 § 5(c)–(d): required content of reports to Congress |
Actions against retired service members in Congress | Bill 4 § 6: bars military retaliation against Members for their speech, votes, or oversight |
Federal election authority | Bill 6: limits on late federal changes to election procedures and on federal collection of voter data |
Justice Department contacts and investigations | Bill 5: written contact policy, records, and inspector general audit; special counsel office created by law |
Records preservation | Bill 4 § 5: agencies must preserve records, including on personal devices, once Congress asks |
Our FOIA experience also points to transparency reforms the 120th Congress should consider. They are not yet in the model bills:
Publish working law. Require agencies to post final, non-classified policies on use of force, home entry, detention, and surveillance. FOIA already requires agencies to make some final policies available without a request (5 U.S.C. 552(a)(2)); Congress can make that duty specific and enforceable.
Fund and enforce deadlines. Appropriate dedicated FOIA staffing, require agencies to report missed deadlines to Congress, and strengthen courts' oversight of exemption claims.
Limit overuse of exemptions. Require agencies to identify the specific harm from release, as the foreseeable-harm standard added by the FOIA Improvement Act of 2016 already requires (5 U.S.C. 552(a)(8)), and report how often each exemption is used.
Send legal opinions to Congress. Require final legal opinions that agencies treat as binding to be provided to the relevant committees, subject to classification rules and any privilege the courts recognize.
Each proposal must respect the same constitutional limits our model bills follow. The model package explains those limits in Part II.
What does accountability look like under the rule of law?
Accountability does not mean retribution. It means finding the facts through lawful process, applying the law equally, and changing rules that failed. For Congress, that work starts on January 3, 2027, with investigations and legislation. Any prosecution is a separate question for prosecutors under the law, after a President leaves office and with full due process. Our article Accountability, Deterrence, and the Rule of Law After Trump explains how these pieces fit together. Veto-Proof Reform: Laws to Protect the Separation of Powers explains how reforms can win the bipartisan votes needed to become law.
The Oversight Program will continue its FOIA litigation and publish records as they are released. Members of Congress and staff who want copies of the records released so far, a briefing, or drafting help can contact Biazzo Law or call (703) 297-5777.
Further reading
Frequently asked questions
Why did Biazzo Law file FOIA requests and lawsuits? To learn the rules federal agencies follow on use of force, home entry, detention, surveillance, and military action. In the Oversight Program's view, Congress did not obtain these records in 2025–2026. FOIA is the tool available to every citizen.
Which agencies were sued? DHS and ICE (No. 0:26-cv-61089), the Department of Defense (No. 0:26-cv-61107), and the FBI (No. 0:26-cv-61165), all in the U.S. District Court for the Southern District of Florida, in April 2026.
What has been released? As of October 22, 2026: 38 pages from DHS, 654 heavily redacted pages from ICE, 47 pages from the FBI, and one page from the Department of Defense. All of it came only after the lawsuits were filed.
Why can't FOIA do the job of Congress? FOIA allows agencies to withhold records under nine exemptions and gives requesters no power to compel testimony. Congress can subpoena records and witnesses, review classified material, direct GAO and inspector general reviews, and change the law.
Is this about one administration? The requests concern actions taken in 2025–2026, but the reforms we propose apply to every future administration. FOIA backlogs and understaffing also predate this administration.
What should the 120th Congress do first? Send preservation letters, request the records described above, hold hearings, and request GAO and inspector general reviews. Then legislate based on the record.
This article is for public education. It is not legal advice and does not create an attorney-client relationship. Biazzo Law, PLLC is the plaintiff in the lawsuits described, and its descriptions of those cases reflect its position as a party. The cases are pending, and the information is current as of the dates stated.
Comments