De Novo Review Under the Freedom of Information Act: The Case Against Judicial Deference to Agency Decisions to Withhold Information

This Comment argues that courts should adhere to the de novo standard of review prescribed by Congress in the FOIA statute, and that this standard is necessary for FOIA to provide the public with the affirmative right to access government information. Part I of this Article examines the reasons why FOIA requires the de novo standard of review and why courts ignore the requirement. Part II discusses various standards of review used by courts reviewing agency actions outside FOIA litigation. Specifically, it compares the review of agency adjudications and rulemakings to review under FOIA. Part III analyzes the actual standards of review that are employed in cases involving Exemptions 1, 3, and 7(A) of FOIA and discusses how the de novo standard of review should be applied. Finally, Part IV provides suggestions for strengthening and clarifying the role of courts in reviewing agency determinations that information should be withheld for national security reasons