FOIA’s No-Creation Rule Applied to Email “Internet Headers”: Copy-and-Paste Extraction Is a New Record (Hagar v. FBI)

I. Introduction

In Hagar v. FBI (5th Cir. Mar. 26, 2026), a pro se requester, Michael A. Hagar, pursued records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, stemming from an email the FBI had obtained during the investigation leading to his criminal conviction. Hagar sought:

  • an unredacted copy of the June 2, 2016 email (specifically, the “To” line showing recipient names and email addresses), and
  • the email’s complete “header information”/metadata (including Internet header data, routing path, timestamps, server information, and related fields).

The case presented two recurring FOIA issues: (1) mootness once records are produced; and (2) FOIA’s limitation that agencies must disclose existing records but need not create new ones. The Fifth Circuit affirmed summary judgment for the FBI, affirmed denials of post-judgment motions, and rejected claims of judicial misconduct.

II. Summary of the Opinion

The Fifth Circuit resolved the appeal on two dispositive grounds:

  • Mootness (the “To” line): Because the FBI ultimately produced the email to Hagar without redactions while summary judgment briefing was pending, the court held Hagar’s claim for the previously redacted “To” line information was moot.
  • No-record-creation (header/metadata): Relying on Kissinger v. Reps. Comm. for the Freedom of the Press and its own recent decision in Rutila v. United States Department of Transportation, the court held that producing the requested header information would require the FBI to create a new record—because the header data was not “plainly visible” and the FBI would need to “copy and paste” it into a separate file for processing and release. FOIA does not require that.

Because the court affirmed on the no-creation ground, it expressly did not reach disputes about whether FOIA Exemptions 6 and 7(C) (or the Privacy Act’s law-enforcement exception) would independently justify withholding the header information, nor did it address arguments about in camera inspection tied to exemption analysis.

III. Analysis

A. Precedents Cited

1. FOIA’s purpose and its limits

  • N.L.R.B. v. Robbins Tire and Rubber Co., 437 U.S. 214 (1978): Quoted for FOIA’s democratic aims—“ensure an informed citizenry,” “check against corruption,” and “hold the governors accountable.” The court used this as a framing principle, then immediately emphasized FOIA’s limits (mootness and no duty to create records).

2. Mootness once the record is produced

  • Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008): Cited for the proposition that a FOIA claim becomes moot once the requester receives the records sought.
  • Calhoun v. F.B.I., 546 F. App'x 487 (5th Cir. 2013) and Raz v. Oakes, No. 02-30054, 2002 WL 31049485 (5th Cir. Sept. 5, 2002): Reinforced that later production—whether by the defendant agency or another source—moots a claim seeking production of that same record.

3. FOIA does not require record creation

  • Kissinger v. Reps. Comm. for the Freedom of the Press, 445 U.S. 136 (1980): The foundational rule: FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.”
  • Rutila v. United States Department of Transportation, 72 F.4th 692 (5th Cir. 2023): The controlling analog. There, the FAA’s only way to comply was to open software and take screenshots; the Fifth Circuit held screenshots would be a “new record.” Hagar extends that logic to email header metadata: extracting dynamic header data by copying and pasting into a new document is likewise creating a new record.
  • Brown v. Perez, 835 F.3d 1223 (10th Cir. 2016): Cited in Rutila and relied on indirectly here, supporting the view that producing certain “displayed” information via screenshots can be record creation beyond FOIA’s mandate.

4. Standards of review and FOIA procedure

  • Batton v. Evers, 598 F.3d 169 (5th Cir. 2010): Used for (a) de novo review of summary judgment; (b) the “clearly erroneous” standard for factual findings necessary to FOIA withholding analysis; and (c) the burden principle that the government bears the burden to prove exemptions. The opinion also invoked Batton on the “presumption of legitimacy” afforded to agency affidavits absent bad faith.
  • Jones v. Sheehan, Young & Culp, 82 F.3d 1334 (5th Cir. 1996): Permitted affirmance on any “legally sufficient ground,” supporting the Fifth Circuit’s decision to affirm based on the no-creation rationale.
  • Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593 (5th Cir. 2017); Hall v. Louisiana, 884 F.3d 546 (5th Cir. 2018); Taylor v. Charter Med. Corp., 162 F.3d 827 (5th Cir. 1998): Established abuse-of-discretion review for the post-judgment motions and judicial notice rulings.
  • Collins v. Dallas Leadership Foundation, 77 F.4th 327 (5th Cir. 2023): Noted the liberal construction given to pro se briefs, underscoring that the court considered Hagar’s arguments but rejected them on settled legal grounds.

5. Magistrate authority and judicial misconduct

  • Liteky v. United States, 510 U.S. 540 (1994): Provided the key principle that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”
  • United States v. Marquez-Perez, 835 F.3d 153 (1st Cir. 2016): Distinguished as inapposite because it addressed trial conduct and due process, not routine case-management rulings in civil FOIA litigation.

B. Legal Reasoning

1. The “To” line dispute ends in mootness

Although the district court had analyzed FOIA Exemptions 6 and 7(C) as applied to recipient names and email addresses, the Fifth Circuit avoided that merits question because the FBI later produced an unredacted copy. Under Ayanbadejo v. Chertoff and related Fifth Circuit authority, the court treated the request as moot once the exact information sought had been disclosed.

This is a practical FOIA holding: the remedy under FOIA is disclosure of improperly withheld records; once the plaintiff has the records, there is no live controversy about production.

2. The decisive holding: header metadata extraction would create a “new record”

The opinion’s central contribution is its application of Rutila v. United States Department of Transportation to email metadata. The court accepted the FBI declarant’s explanation that:

  • the header information was not “plainly visible” when the email was viewed or printed;
  • to access it, an employee would navigate Outlook (“File” → “Properties” → “Internet Headers”); and
  • to provide it to Hagar, the FBI would have to “copy and paste the header information into a separate text file or Microsoft Word document.”

Using Rutila’s “dividing line,” the Fifth Circuit framed the question as whether the request required only producing retained information in a “slightly altered format” or instead required creating “a new record . . . of information it does not store.” It concluded the latter: the FBI had access to the data but did not maintain it as a releasable record, and the steps needed to externalize it into a standalone document would “create something new.”

Notably, the court treated the simplicity of the extraction (only “a few steps”) as legally irrelevant: even minimal effort can still be “creation” if it produces a record the agency did not already have.

3. Procedural holding: magistrate docket management in FOIA litigation

The court held the magistrate judge acted within permissible pretrial authority by terminating Hagar’s premature summary judgment motion “for statistical purposes” and setting a schedule that contemplated summary judgment briefing initiated by the FBI (which generally bears the burden on exemptions). The key point: the magistrate did not decide the motion’s merits and did not foreclose later presentation of the arguments.

4. Post-judgment motions fall with the merits

Because the Fifth Circuit rejected the underlying arguments (mootness and no-creation), it found no abuse of discretion in denying reconsideration, Rule 60(b) relief, or judicial notice.

5. Misconduct allegations rejected under Liteky

Hagar’s allegations were construed as disagreement with adverse rulings. Under Liteky v. United States, rulings alone do not establish bias absent extrajudicial sources or unusual conduct; Hagar identified none.

C. Impact

The most consequential aspect of Hagar is its operational rule for FOIA requests targeting electronic metadata:

  • Metadata-as-access vs. metadata-as-record: Even if an agency can access metadata within an application interface (e.g., Outlook “Internet Headers”), the Fifth Circuit’s approach asks whether the agency already maintains that metadata in a discrete record form that can be produced without generating a new artifact.
  • Extraction can equal creation: The court equates “copy-and-paste into a separate file” with creating a new record, paralleling screenshots in Rutila. This makes it harder for FOIA requesters in the Fifth Circuit to compel production of certain embedded, dynamic, or interface-dependent data when the agency does not keep it in an exportable record format.
  • Litigation narrowing through mootness: The decision also underscores a common FOIA dynamic: late-stage production moots claims for specific withheld content and can significantly narrow judicial review to the remaining relief (if any).

In future cases, litigants should expect agencies to rely more heavily on declarations describing how information is (and is not) stored, and courts to treat those declarations as decisive absent concrete evidence of bad faith or factual contradiction.

IV. Complex Concepts Simplified

1. “Mootness” in FOIA

A case (or a specific claim within it) is “moot” when there is no longer a live dispute the court can remedy. In FOIA, if the plaintiff asks the court to order production of a record and the agency later produces it, there is typically nothing left for the court to order—so the production claim becomes moot.

2. FOIA’s “no creation” principle

FOIA requires agencies to disclose existing agency records (unless exempt), but it does not require them to make something new for the requester. In Hagar, the Fifth Circuit treated the act of extracting non-plainly-visible header data into a separate document as creating a new record.

3. Exemptions 6 and 7(C) (mentioned but not ultimately decisive here)

  • Exemption 6 protects certain personal information in “personnel and medical files and similar files” when disclosure would be a “clearly unwarranted invasion of personal privacy.”
  • Exemption 7(C) protects personal privacy in law-enforcement records where disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The court did not need to decide how those exemptions apply to header metadata because it affirmed on the no-creation ground.

4. “In camera review”

“In camera” review means the judge privately examines the disputed records to evaluate an exemption claim. Because the Fifth Circuit affirmed based on no-creation (i.e., no existing producible record), it did not address whether the district court should have inspected anything in camera as part of exemption analysis.

V. Conclusion

Hagar v. FBI cements, in the Fifth Circuit, a restrictive application of FOIA’s no-creation rule to certain forms of electronic metadata. Building on Rutila v. United States Department of Transportation, the court held that when email header information is not maintained as a separate agency record and can be produced only by extracting it into a new document (here, by copying and pasting “Internet Headers”), FOIA does not compel disclosure. Separately, the decision reiterates a practical limit on FOIA litigation: once the government produces the specific information sought (here, the unredacted “To” line), the claim to compel that information is moot. Together, these holdings emphasize that FOIA’s reach depends not just on whether information exists in some accessible form, but on whether it exists as a record the agency has created and retained in producible form.