As federal agencies increasingly use ChatGPT and other generative artificial intelligence tools, a new transparency question is emerging: Are government employees’ AI prompts, responses, and conversation histories subject to the Freedom of Information Act (“FOIA”)?
There is not yet a reported federal appellate decision squarely addressing ChatGPT conversation histories under FOIA. Existing precedent, however, provides a workable framework. In many circumstances, AI records are likely to qualify as “agency records”—particularly when an agency creates or obtains the information and exercises control over it.
FOIA’s “Agency Record” Framework
FOIA generally requires federal agencies to disclose nonexempt “agency records.” In U.S. Department of Justice v. Tax Analysts, the Supreme Court established a two-part test: an agency must have either created or obtained the requested material, and it must control the material when the FOIA request is made.1
The analysis does not depend on whether the information appears in a paper memorandum, email, database, browser history, or AI conversation. Instead, courts look to factors such as whether the agency can use or dispose of the material, whether agency personnel relied upon it, and whether it became integrated into agency files.2
A useful analogy is Cause of Action Institute v. Office of Management and Budget, which involved automatically generated browser histories on government computers. The D.C. Circuit held that those histories were not agency records where the agencies did not use, rely upon, or integrate them into their records systems and employees largely controlled whether the histories were retained or deleted.3
ChatGPT conversations may present a different situation. An employee might deliberately ask an AI system to analyze a regulation, summarize comments, prepare a draft, or compare policy alternatives and then use the response in official work. Those facts could support agency-record status under the traditional control analysis.
When ChatGPT Records Are Most Likely Covered
The strongest case involves records maintained in an agency-managed or enterprise AI environment where the agency has access to, uses, or controls the information. If an agency maintains usage logs, sets retention rules, or can retrieve or export conversations, those circumstances weigh in favor of agency control.
The argument becomes even stronger once an employee saves an AI output to an agency drive, copies it into an email, circulates it to colleagues, attaches it to a report, or incorporates it into an agency decision. At that point, the agency has independently obtained and retained the information.
Personal ChatGPT accounts present a closer question. In Competitive Enterprise Institute v. Office of Science and Technology Policy, the D.C. Circuit rejected the categorical argument that work-related emails were beyond FOIA simply because they were located in a private email account.4 Accordingly, the physical or digital location of a record is not by itself dispositive.
Applied to AI, a personal ChatGPT conversation may still be subject to FOIA if it was used for agency business and is retained and retrievable for agency purposes. But where the agency never obtained, used, relied upon, or controlled the conversation, the case for agency-record status is weaker.
Records held exclusively by OpenAI or another provider are more difficult still. Under Forsham v. Harris, FOIA generally does not require an agency to obtain privately held materials it never actually acquired.5 Contractual access rights, export capabilities, retention controls, and actual agency use may therefore become important facts.
Emerging AI Public-Records Developments
Although federal precedent remains limited, AI records are already becoming the subject of transparency disputes.
In a 2025 federal FOIA action, Democracy Forward sought records including generative-AI searches, instructions, queries, inputs, outputs, recommendations, and reports concerning alleged uses of AI by federal agencies.6 The litigation has not produced a reported merits ruling establishing that those materials are agency records, but it demonstrates that AI prompts and outputs are already being requested as distinct categories of federal records.
State public-records developments also provide guidance. In a 2026 Pennsylvania Office of Open Records decision, certain individual and unshared ChatGPT conversations were treated as exempt personal working papers, while other conversations shared or reviewed as part of an agency AI pilot could not all be withheld on that basis.7 Significantly, the decision subjected ChatGPT histories to ordinary record-specific and exemption-specific analysis rather than treating them as categorically outside public-records law.
Public-records requests in Washington have likewise reportedly resulted in the production of thousands of pages of municipal officials’ ChatGPT histories used for government work.8
Record Status Does Not Mean Automatic Disclosure
Even if a ChatGPT conversation qualifies as an agency record, disclosure is not automatic. FOIA exemptions may protect predecisional deliberations, attorney-client communications, attorney work product, personal information, confidential commercial information, classified material, or law-enforcement records.
The central question is therefore not whether AI created the record. It is whether the government created or obtained the information and exercised sufficient control over it. As generative AI becomes more integrated into agency work, traditional FOIA principles are likely to determine which AI records must be searched, reviewed, and potentially disclosed.
Endnotes:
1. U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 144–45 (1989).
2. Burka v. U.S. Dep’t of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
3. Cause of Action Inst. v. Off. of Mgmt. & Budget, 10 F.4th 849, 855–57 (D.C. Cir. 2021).
4. Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d 145, 149–50 (D.C. Cir. 2016).
5. Forsham v. Harris, 445 U.S. 169, 182–86 (1980).
6. Complaint ¶¶ 18, 32, Democracy Forward Found. v. U.S. Dep’t of Hous. & Urb. Dev., No. 1:25-cv-02020 (D.D.C. June 27, 2025), ECF No. 1.
7. Jaxon White & WITF v. Pa. Off. of the Governor, OOR Dkt. AP 2025-3285, at 8–10 (Pa. Off. of Open Recs. Jan. 12, 2026) (final determination).
8. Nate Sanford, Washington City Officials Are Using ChatGPT for Government Work, KNKX Pub. Radio (Aug. 26, 2025).