FOIA Appeal — OSC FOIA/PA Request No. FOIA-2026-153
The Steady State
FREEDOM OF INFORMATION ACT APPEAL
September 2, 2026
U.S. Office of Special Counsel
Office of General Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
Submitted via email to FOIAappeal@osc.gov (subject line: "FOIA Appeal — FOIA Case No. FOIA-2026-153")
Re: FOIA Appeal — OSC FOIA/PA Request No. FOIA-2026-153 (records concerning OSC File No. HA-26-000413) — Appeal of Adequacy of Search, Withholdings, and Related Determinations
Dear Office of General Counsel:
Pursuant to 5 U.S.C. § 552(a)(6) and 5 C.F.R. § 1820.6, The Steady State ("Requester") appeals the determination of the Office of Special Counsel ("OSC") dated August 25, 2026 in FOIA-2026-153.1 This appeal is timely: OSC’s determination letter is dated August 25, 2026, and the Office of General Counsel is receiving this appeal within the ninety-calendar-day period prescribed by 5 C.F.R. § 1820.6, which ends Monday, November 23, 2026.2
I. Background
On August 10, 2026, Requester submitted an eight-item FOIA request for records concerning OSC File No. HA-26-000413 — the Hatch Act complaint Requester filed on July 7, 2026 regarding Secretary of Defense Pete Hegseth’s3 May 18, 2026 appearance and remarks at a campaign rally for U.S. House
1 OSC determination letter, FOIA-2026-153 (Aug. 25, 2026) (signed Attorney-Advisor, Case Review Division), transmitted by email Aug. 25, 2026, 4:16 p.m. ET.
2 The determination letter states that "the General Counsel must receive your FOIA/PA appeal no later than 90 days from the date of this letter"; accord 5 C.F.R. § 1820.6 ("The Office of General Counsel must receive the appeal within ninety (90) calendar days of the date of the adverse determination letter.").
3 The closure letter styles Secretary Hegseth “Secretary of War.” Executive Order 14347, Restoring the United States Department of War, 90 Fed. Reg. 43893 (Sept. 5, 2025), authorizes “Secretary of War” as a secondary title for use in official correspondence and public communications, but provides that “[s]tatutory references to the Department of Defense, Secretary of Defense, and subordinate officers and components shall remain controlling until changed subsequently by the law.” The office remains, as a matter of statute, the Secretary of Defense, 10 U.S.C. § 113. This appeal uses the statutory title except when quoting.
FOIA Appeal — OSC FOIA-2026-153 Page 1 of 8
candidate Ed Gallrein in Hebron, Kentucky, which OSC closed by letter dated July 8, 2026.4 The request sought, among other things: the complete investigative or case file, including intake records and the case-opening and case-closing memoranda (item 1); "[a]ll records and evidence on which OSC relied in reaching the conclusions in its July 8, 2026 closure letter, including all records substantiating the statement that the Government ‘was reimbursed a pro-rata share of Secretary Hegseth’s travel costs’" (item 2); records of OSC’s factual findings and legal analysis (item 3); records concerning OSC’s consideration of Department of Defense authorities including DoD Directive 1442.11 (item 4); OSC’s communications with the Department, the Army, the White House, or the Gallrein campaign (item 5); referral records (item 6); OSC guidance and precedent on agency-specific political-activity restrictions, with no date limitation (item 7); and records identifying the personnel who worked on the matter and the case’s opening and closing dates (item 8). The request asked OSC to search the Hatch Act Unit’s records, and any other OSC unit reasonably likely to hold records concerning HA-26-000413, "including but not limited to email and other electronic communications (including text messages and messaging-application communications, such as Signal, Microsoft Teams, or similar), calendar entries, memoranda, notes, and attachments."
On August 25, 2026, OSC issued its determination, stating that it "located the documents you requested and reviewed the material they contain" and released "100 pages of responsive documents in full and 2 pages in part." The production comprises 102 pages. Ninety-nine of them are Requester’s own July 7, 2026 complaint package — the online complaint form and its four attached files, including the complaint letter — returned to Requester. The only three pages that originated with OSC are the July 8, 2026 closure letter (two pages) and the email that transmitted it (one page), both of which Requester has possessed, unredacted, since July 8, 2026. The production contains no intake record, no case-opening or case-closing memorandum, no notes or analysis, no internal or external correspondence, no precedent or guidance, and no record of any kind substantiating the closure letter’s central factual assertion.
II. The Search Was Inadequate: The Response Processes None of the Request’s Substantive Items
An agency responding to a FOIA request must conduct a search reasonably calculated to uncover all responsive records, and it “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency “has discretion to conduct a standard search in response to a general request, but it must revise its assessment of what is ‘reasonable’ in a particular case to account for leads that emerge during its inquiry. Consequently, the court evaluates the reasonableness of an agency’s search based on what the agency knew at its conclusion rather than what the agency speculated at its inception.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998). A search is inadequate where the record itself reveals “positive indications of overlooked materials.” Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979); accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (holding a search inadequate on that ground where the agency’s own record showed that the offices it searched were not the only places likely to turn up the requested information). Together, these decisions require an agency to pursue the leads evident in its own record
4 Letter from Deputy Chief, Hatch Act Unit, U.S. Office of Special Counsel, to Steven A. Cash, The Steady State, re OSC File No. HA-26-000413 (July 8, 2026) ("Closure Letter").
FOIA Appeal — OSC FOIA-2026-153 Page 2 of 8
and to search additional locations when that record provides positive indications that responsive material may have been overlooked. That is this record. The face of OSC’s own July 8 closure letter establishes that responsive records exist beyond the correspondence file OSC returned:
1. The reimbursement confirmation (item 2). The closure letter states: "OSC confirmed that after the event the government was reimbursed a pro-rata share of Secretary Hegseth’s travel costs in accordance with the Hatch Act regulations governing mixed travel." OSC’s statement that it "confirmed" the reimbursement strongly suggests that OSC obtained or received information beyond the complaint — a document, an electronic communication, or an oral communication memorialized in a note. Any record of that confirmation — a communication with the Department or its finance office, a voucher, a calculation, a note of a call — is responsive to item 2. Not one such record was produced. Publicly available records sharpen the need: the Gallrein for Congress committee’s itemized disbursements filed with the Federal Election Commission for the period April 30 through June 30, 2026 — a period that includes the six weeks following the May 18 event — contain no readily identifiable disbursement to the U.S. Treasury, the Department of Defense, the Defense Finance and Accounting Service, or any other payee identifiable as the recipient of a travel-cost reimbursement. (The committee’s only federal payee in the period is the U.S. Postal Service, for postage.) That filing does not exclude a later reimbursement, an amended filing, reimbursement by another entity, or payment by the traveler; it underscores the need for OSC to identify the records on which its confirmation rested.5 OSC’s own published mixed-travel guidance recommends that agencies seek reimbursement within 30 days of the event.6 Whatever the source and channel of the reimbursement OSC "confirmed," the records documenting that confirmation are precisely what item 2 seeks, and none were produced.
2. The itinerary facts (items 2–3). The closure letter states that Secretary Hegseth "returned to Washington that evening" and that "[t]here is no evidence or allegation that Secretary Hegseth engaged in any political activity while at Fort Campbell." The second statement tracks the face of the complaint, which described the Fort Campbell visit without alleging political activity there. The first does not: the complaint nowhere states that Secretary Hegseth returned to Washington that evening. As to the itinerary, OSC drew on an information source beyond the complaint — and produced no record of it.
3. Case administration (items 1 and 8). Beyond the closure letter itself, no intake record, assignment record, case-opening or case-closing entry, or docket printout was produced. OSC's published system of records notice identifies records of this kind among the categories maintained in its electronic case tracking system. OSC/GOVT-1 lists among the principal categories of records in the system "information about complaints, disclosures, requests and litigation maintained in OSC's electronic case tracking system." OSC Complaint, Litigation, Political Activity, and Disclosure Files, 82 Fed. Reg. 45076, 45077 (Sept. 27, 2017). OSC
5 Gallrein for Congress (FEC Committee ID C00923995), FEC Form 3, Schedule B (Itemized Disbursements), coverage period Apr. 30–June 30, 2026, https://docquery.fec.gov/cgi-bin/forms/C00923995/1993475/sb/ALL (last visited Sept. 2, 2026), archived at https://web.archive.org/web/20260902163449/https://docquery.fec.gov/cgi-bin/forms/C00923995/1993475/sb/ALL. 6 U.S. Office of Special Counsel, OSC Advisory Regarding Mixed Travel by Presidentially-Appointed / Senate Confirmed (PAS) Employees, at 5 (Oct. 6, 2011), https://www.osc.gov/~assets/docs/mixed-travel-by-presidential-appointees-with-senate confirmation-pas.pdf ("OSC recommends that agencies seek reimbursement within 30 days of the event.").
FOIA Appeal — OSC FOIA-2026-153 Page 3 of 8
maintains those records, by its own account, to "[d]ocument how OSC handled each matter" and to "allow for statistical reports and analysis of matters processed at OSC." Id. at 45076. OSC assigned this matter File No. HA-26-000413, and the complaint form OSC returned bears the stamps "Date Received by OSC: 7/7/2026" and "This complaint of an alleged Hatch Act violation was received by OSC on: 7/7/2026". The stamps show that OSC recorded the complaint's receipt date, and they reinforce the likelihood that associated intake and tracking entries exist, although the face of the form does not establish which system generated them. OSC's electronic case tracking system was therefore a records system "likely to turn up the information requested." Oglesby, 920 F.2d at 68. OSC's response does not state that this system was searched, and it does not state that the system contains no entry responsive to items 1 and 8. OSC must say which.
4. Precedent and guidance (item 7). Item 7 sought, with no date limitation, any OSC “guidance, precedential decision, or advisory opinion addressing how OSC treats agency-specific restrictions on the political activity of PAS or other political appointees, or agency directives (such as DoDD 1442.11) that incorporate the Hatch Act, including any prior instance in which OSC considered, applied, declined, or referred such a restriction.” The closure letter takes a categorical position on exactly that question: that OSC “does not have jurisdiction to enforce or interpret agency policies regarding employee political activity.” A position of that kind ordinarily rests on something — guidance, a precedential decision, an advisory opinion, or a prior instance in which OSC declined such a restriction — and OSC’s notice identifies advisory opinions and factual and legal analyses among the categories of records it maintains. OSC states that “the types of records maintained include records related to advisory opinions of OSC’s Hatch Act Unit,” 82 Fed. Reg. at 45076; lists “factual and legal summaries or analyses” among the principal categories of records in the system, id. at 45077; and provides that “[c]ase file records of Formal Advisory Opinions of the Hatch Act Unit are retained for 6 years after the date of closure,” id. at 45079. Nothing was produced for item 7, and OSC gave no no-records response as to it.
5. Communications, referrals, and jurisdictional analysis (items 4, 5, and 6). Nothing was produced for any of these items, and OSC’s determination neither addresses them individually nor states that no responsive records exist. Here again OSC’s own notice supplies what its response omits. OSC/GOVT-1 lists among the principal categories of records in this system: “interview records, including notes, summaries, or transcripts”; “reports or other summaries of investigation”; “factual and legal summaries or analyses”; “administrative determinations”; “referrals to other governmental entities for appropriate action”; “communications with other agencies, entities, or individuals referring matters to OSC for review or investigation”; and “other correspondence and documents created or obtained in the performance of OSC functions under 5 U.S.C. 1211–1221, 1501–1508, and 7321–7326.” 82 Fed. Reg. at 45077. Those categories map onto items 1 and 3 through 6 almost term for term. OSC has published that this system holds records of precisely these kinds; its response neither produces any nor states that none exist as to this matter. Item 4 expressly named “the guidance documents Requester submitted with its complaint”; OSC returned those documents to Requester as part of this production, yet produced no record reflecting its consideration of them or of DoD Directive 1442.11. That Directive is not background only. It provides that the Department’s General Counsel
FOIA Appeal — OSC FOIA-2026-153 Page 4 of 8
“Represents the DoD to the U.S. Office of Special Counsel and the Office of White House Counsel in all matters of suspected violations of political activity laws or regulations by DoD political appointees.” DoD Directive 1442.11 § 2.1.c (eff. Nov. 8, 2021). Item 5 sought OSC’s communications with the Department, including its Office of the General Counsel, and the closure letter states that OSC “confirmed” a reimbursement — a fact OSC did not observe for itself. The Department’s own issuance identifies the office through which a communication of that kind would ordinarily pass. OSC produced no communication with that office, and did not state that none exists.
OSC’s notice also substantially weakens any suggestion that a fuller search was impracticable or that responsive records have since been disposed of. OSC states that some files in this system “are retrievable through full-text search capability,” and that they are “generally retrieved by the name of ” the complainant or of “the alleged subject of a complaint about prohibited political activity” — for a complaint of this kind, the alleged subject: Secretary Hegseth, whose name OSC had on the face of the complaint. Id. at 45078. OSC states that case-file records concerning “allegations of improper political activity” are retained “for 6 years after the date of closure,” and that personally identifiable information in its electronic case tracking system “is retained until deleted from the database 25 years after the corresponding case file is destroyed.” Id. at 45079. OSC closed this matter on July 8, 2026 and searched roughly seven weeks later; OSC’s published retention provisions make disposal of any qualifying case-file records in that seven-week interval unlikely, and OSC has not suggested that any occurred. And OSC identifies the locations of this system as its headquarters “(including program offices and the Document Control Branch),” field offices in Oakland, Detroit, and Dallas, and OSC’s “FedRAMP-approved government cloud,” with some records held at other agencies and some maintained in FOIAXpress. Id. at 45076. OSC’s response does not identify which of these locations or systems it searched, and an agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68.
The timeline frames the dilemma. OSC’s complaint form is stamped "Date Received by OSC: 7/7/2026"; the closure letter is dated July 8, 2026, and was emailed to Requester at 6:19 p.m. Eastern Time that same day. Either the produced file is complete — in which case OSC received, evaluated, and closed a Hatch Act complaint against the Secretary of Defense in roughly one business day, "confirmed" a Treasury reimbursement without generating or retaining a single documenting record, and made factual findings resting on no documented basis — or the file is not complete, and the search was inadequate. If it is the former, Requester is entitled to OSC’s statement, on the record and item by item, that no responsive records exist. If it is the latter, OSC must search the Hatch Act Unit’s emails, notes, case-management and docket systems, calendars, phone logs, and messaging platforms, as the request expressly asked, and respond to each item.
III. The Exemption 6 / 7(C) Redactions Withhold Information OSC Has Already Officially Disclosed to This Requester — and Fail on Their Own Terms
The only redactions in the production appear on the two partially released pages: the final page of the July 8 closure letter and the July 8 transmittal email, each marked (b)(6) and (b)(7)(C). They withhold the name and the final digits of the telephone number of the Hatch Act Unit attorney on the closure letter’s contact line, the signature and printed name of the Deputy Chief of the Hatch Act Unit, and the name
FOIA Appeal — OSC FOIA-2026-153 Page 5 of 8
and telephone digits of the transmitting attorney. OSC previously disclosed the substance of what it now redacts, to this same Requester, in the unredacted closure letter it transmitted on July 8, 2026: that letter states "Please contact OSC Hatch Act Unit Attorney at with any questions" and is signed Deputy Chief, Hatch Act Unit." The transmittal email, as OSC sent it, is
signed Lead Attorney, Hatch Act Unit" with the same telephone number. OSC likewise transmitted the July 8 transmittal email to Requester without the present redactions, and Requester encloses the July 8 email, as forwarded on August 30, 2026 from the mailbox to which OSC sent it, at Enclosure 3. The redactions withhold the names of agency officials acting in their official capacities — and they directly frustrate item 8, which seeks records identifying the personnel who worked on HA-26-000413.
Information an agency has officially acknowledged may not be withheld where the information sought is as specific as that previously released, matches the information previously disclosed, and has already been made public through an official and documented disclosure. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Requester recognizes that a prior disclosure to a limited recipient does not by itself establish public-domain waiver under that test. But OSC’s prior transmission of the identical information, in the identical documents, to this same Requester — who holds the unredacted originals by the agency’s own hand — bears directly on the privacy balance and on foreseeable harm, and OSC should explain what cognizable privacy harm could now result from disclosing again what it has already disclosed to the only requester before it.
Even apart from OSC’s own prior disclosure, the redactions fail on the merits. Exemptions 6 and 7(C) protect personal privacy. The withheld information concerns OSC employees’ performance of official duties: it identifies which OSC officials handled, and signed the disposition of, a Hatch Act complaint against a Cabinet officer — quintessential "official information that sheds light on an agency’s performance of its statutory duties," disclosure of which is FOIA’s central purpose. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). Whatever residual privacy interest these officials could claim in information their agency has already released to this very requester, it cannot outweigh the public interest in knowing who conducted the one-day review at issue — the precise information item 8 seeks. Nor can OSC make the showing 5 U.S.C. § 552(a)(8)(A) requires — that it "reasonably foresee[s] that disclosure would harm an interest protected by an exemption" — where the identical information already sits, unredacted, in the requester’s files by the agency’s own hand. Finally, Exemption 7(C) applies only to records "compiled for law enforcement purposes"; although these documents arose from a Hatch Act enforcement matter, their nature as final correspondence prepared for transmission to the complainant warrants an express explanation of why each was compiled for law enforcement purposes, and OSC has offered none. Taken together, these grounds require release of the redacted information.
IV. Exemption 5 Is Recited but Never Applied, and the Response Does Not Identify Any Fully Withheld Material or Provide the Statutory Volume Estimate
The determination letter recites Exemption 5 and the deliberative-process privilege among the exemptions "applied . . . in withholding pages in full and redacting information." Yet no (b)(5) marking appears anywhere in the production, the released page count leaves no apparent room for pages withheld in full, and the letter nowhere states whether any records were withheld in their entirety. FOIA requires the agency to "make a reasonable effort to estimate the volume of any requested matter the provision of which is denied" and to provide that estimate to the requester, 5 U.S.C. § 552(a)(6)(F); to release "[a]ny
FOIA Appeal — OSC FOIA-2026-153 Page 6 of 8
reasonably segregable portion of a record," 5 U.S.C. § 552(b); and to withhold only where it "reasonably foresee[s] that disclosure would harm an interest protected by an exemption," 5 U.S.C. § 552(a)(8)(A). Requester’s request expressly asked for a segregability review and an index of withheld material sufficient to evaluate each withholding. On appeal, OSC should state whether anything was withheld in full and provide the statutory volume estimate. Although a formal Vaughn index may not be required at the administrative stage, Requester asked for an index or comparable description sufficient to evaluate each withholding; OSC should identify each category of withheld material, the exemption applied, and the basis for concluding that no further portion is reasonably segregable.
To the extent OSC did withhold material under Exemption 5, the withholding cannot rest on the letter’s recitation. The deliberative-process privilege reaches only records "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" — records that are both predecisional and deliberative. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). It does not ordinarily protect reasonably segregable factual material — such as the travel, itinerary, and reimbursement facts OSC states it "confirmed" — unless disclosure would reveal the deliberative process itself or the facts are inextricably intertwined with protected deliberations, and it "can never apply" to final opinions that constitute an agency’s final disposition of a matter and explain action already taken. Id. at 153–54. OSC’s closure of HA-26-000413 was its final disposition; the documents embodying the operative reasons for that disposition, and their reasonably segregable factual content, are what Exemption 5 does not shield. And the codified foreseeable-harm standard forecloses boilerplate: an agency may withhold only if it "reasonably foresees that disclosure would harm an interest protected by an exemption," 5 U.S.C. § 552(a)(8)(A), a showing that must be made as to the specific records withheld, not recited in the abstract. If deliberative material concerning HA-26-000413 exists, it is responsive to items 1 and 3, must be identified and counted, and its reasonably segregable factual content must be released.
V. The Production Format Does Not Comply with the Request
The request asked for records "in native format with metadata intact where reasonably available, otherwise as searchable PDFs rather than image-only scans." The 102 pages of responsive records are an image-only scan with no text layer. Under 5 U.S.C. § 552(a)(3)(B), an agency must provide a record in the requested form or format if the record is readily reproducible in that form or format. Requester therefore renews its request that OSC produce responsive electronic records in their native format with existing metadata, and provide searchable PDFs wherever searchable or OCR-processed copies are readily reproducible.
VI. Relief Requested
Requester respectfully asks that the Office of General Counsel: (1) remand for a search of the records of the Hatch Act Unit and of any other OSC unit reasonably likely to hold records concerning HA-26-000413, as the request expressly asked — including email and other electronic communications (including text messages and messaging-application communications, such as Signal, Microsoft Teams, or similar), OSC’s electronic case tracking system, case-management and docket records, memoranda, notes, calendar entries, phone logs, and attachments — reasonably calculated to locate records responsive to each of items 1 through 8, and direct OSC to identify on the record which of the systems and locations it
FOIA Appeal — OSC FOIA-2026-153 Page 7 of 8
has published for OSC/GOVT-1 it searched; (2) direct an item-by-item response, including an express statement for any item for which no records exist; (3) order release of the information redacted from the two partially released pages; (4) direct OSC to state whether any records were withheld in full and to provide the volume estimate, segregability analysis, and index described above; (5) direct re-production of the responsive records in searchable form; and (6) direct OSC to state whether any portion of this request was referred or routed to another OSC unit or to another agency and, if so, to which office and on what date.
Please direct all correspondence concerning this appeal to hqs@thesteadystate.org. Requester asks that OSC confirm receipt of this appeal and the date of receipt.
Respectfully submitted,
/s/ Steven Cash
Steven Cash
Executive Director
The Steady State
(212) 685-9660
Enclosures: (1) FOIA request dated August 9, 2026 and submitted August 10; (2) OSC closure letter, OSC File No. HA-26-000413 (July 8, 2026), as originally received; (3) OSC transmittal email of July 8, 2026, as forwarded August 30, 2026; (4) Gallrein for Congress FEC Schedule B (Apr. 30–June 30, 2026). OSC's determination letter is attached
for convenience; the 102 pages released on August 25, 2026 are OSC's own records and are not re-enclosed on account of file size; Requester will provide a copy on request.
FOIA Appeal — OSC FOIA-2026-153 Page 8 of 8