The watchdog EFF Electronic Frontier Foundation has released 1000 pages of CMS documents, which in part lay out problems with launcher WiSER, Medicare's attempt to bring Ai and Prior Auth together into the rickety fee for service claims processing system.
There are a number of open access news stories, and you can link directly to the "treasure trove" of FOIA documents. One tip - they didn't just file a plain-jane FOIA request, they got a first-class upgrade into a FOIA lawsuit.
- Here's a long September 6 blog at EFF itself - here.
- Here's what appears to be an EFF home page for the FOIA project - here.
- Here's news at STAT - here.
- Open access news at Fierce Healthcare here.
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One often hears FOIA requests takes years; EFF filed a legal complaint with a judge in late March (10pp) here. I asked Chat GPT how the 10 page legal complaint differs from a "normal" FOIA request.
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AI
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Yes. The key point is that this did not remain a “normal FOIA request.” It became a FOIA lawsuit, and that changes the agency’s incentives and timetable dramatically.
EFF actually started with an ordinary FOIA request on January 29, 2026. It asked for 14 fairly specific categories—vendor agreements, payment methodology, applications, BAAs, testing records, audits, monitoring data, training materials, quality-score calculations, etc. CMS acknowledged it February 14, but by March 24 had provided no substantive response and no records. EFF therefore sued on March 25.
What changes when you sue
With an ordinary FOIA request, you are basically standing in an administrative processing queue. The request may be classified as simple or complex; program offices have to search; lawyers review exemptions and redactions; contractors may have to be consulted; and the nominal 20-working-day FOIA deadline does not necessarily mean “all documents delivered in 20 days.” It is principally a deadline for the agency's determination, and the statute allows complications for voluminous searches and inter-office consultation. (Department of Justice)
If the agency misses the statutory deadline, however, FOIA contains a powerful provision: the requester can be “deemed to have exhausted” administrative remedies and go to federal court. (Department of Justice) That is what made this case different.
Once EFF filed suit:
CMS now had a federal court case number and a judge.
An Assistant U.S. Attorney appeared to defend CMS.
The government had to answer the complaint.
The court had power to enjoin improper withholding and order production; CMS bears the burden of justifying withholding. (Department of Justice)
The parties had to report to the court rather than simply letting the request sit indefinitely in an agency queue.
If exemptions became disputed, CMS could ultimately have to explain its withholdings to the court, commonly through declarations and a Vaughn-type accounting.
FOIA also allows a substantially prevailing plaintiff to seek reasonable attorney fees and litigation costs. (Department of Justice)
And in this particular case we can see the acceleration in black and white.
By June 11—only about 2½ months after suit was filed—CMS told the court that it had conducted an “extensive search” and identified 1,837 pages of potentially responsive records. EFF and CMS then negotiated a production schedule of 500 pages per month beginning June 29, continuing monthly until the production was complete. The judge approved the stipulation and required interim status reports. (Justia Dockets & Filings)
So roughly:
Jan. 29: ordinary FOIA request
→ Feb. 14: acknowledgment
→ Mar. 25: EFF sues
→ June 11: CMS has located 1,837 potentially responsive pages
→ June 29: first 500-page production tranche
→ July 29: next tranche
→ Aug. 29: next tranche
That is almost certainly the phenomenon you noticed.
There is one particularly interesting legal nuance: these documents were not obtained through ordinary civil “discovery.” In fact, the June order specifically exempted the parties from the usual Rule 26 discovery requirements. (Justia Dockets & Filings) CMS was still processing the FOIA request. The lawsuit simply put judicial machinery around that processing.
And EFF had another accelerant even before suing. Its January request expressly requested expedited processing, arguing that it urgently needed to inform the public about a program already affecting Medicare patients. FOIA requires an agency to decide whether to grant expedited processing within ten days. (Department of Justice) EFF alleged CMS missed both that deadline and the ordinary 20-working-day deadline.
So I would characterize the distinction this way:
A normal FOIA request asks the bureaucracy to process your request. A FOIA lawsuit asks a federal judge to supervise whether the bureaucracy is complying with FOIA.
EFF didn't have some magical special FOIA entitlement. In principle, you or I could file essentially the same sort of FOIA request and, after appropriate exhaustion, sue when CMS failed to respond. EFF's practical advantage is that it is a sophisticated repeat FOIA litigant with lawyers, knows how to draft a litigation-ready request, requested expedition and fee waiver correctly, and can turn a missed deadline into a federal lawsuit very rapidly.
And this case is actually an unusually clean demonstration of the effect: before lawsuit: zero pages. About 11 weeks after lawsuit: 1,837 pages located and a court-backed 500-pages-per-month production process.
That is a very different animal from simply sending CMS a FOIA letter and periodically checking the portal.
