Washington, D.C. (July 24, 2019) – Cause of Action Institute (“CoA Institute”) commends Senators Grassley, Leahy, Cornyn, and Feinstein for introducing the Open and Responsive Government Act of 2019 (S. 2220), a bill that would correct the Supreme Court’s recent misinterpretation of Exemption 4 within the Freedom of Information Act (“FOIA”).  The bill would clarify that the term “confidential” in Exemption 4 only protects information that, if disclosed, “would likely cause substantial harm to the competitive position of the person from whom the information was obtained.”  Last term, in Food Marketing Institute v. Argus Leader, the U.S. Supreme overturned that long-settled interpretation of the term “confidential.”  The bipartisan bill would re-establish the previous status quo.

“We applaud this bipartisan group of senators who are committed to ensuring that the public can conduct rigorous oversight of the Executive Branch by using the FOIA,” said James Valvo, CoA Institute counsel and senior policy advisor.  “The Supreme Court made a misstep with its decision in FMI v. Argus Leader and we’re glad to see that these senators are working to correct that mistake.”

FOIA’s Exemption 4 is generally considered the exemption that protects from disclosure business information that a federal agency obtains but that is then later requested through the FOIA.  The protection for “confidential” information is one of the categories of protected information, in addition to trade secrets and privileged materials.  In an influential opinion, the D.C. Circuit’s interpretation of the term “confidential” in National Parks was that confidential information was that which, if disclosed to the public, “would likely cause substantial harm to the competitive position of the person from whom the information was obtained.”  This interpretation has set the baseline for Exemption 4 withholdings for decades.

The Food Marketing Institute challenged this interpretation as inconsistent with the statute, and the Supreme Court agreed.  The Court provided a new interpretation, which protects information that is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy[.]”  This ruling is likely to dramatically increase the amount of information that the government can withhold from FOIA requesters.  The decision has been met with criticism from open government advocates and members of Congress who are concerned that it will make it more difficult to conduct government oversight.

CoA Institute and a group of cross-ideological open government advocates—including Citizens for Responsibility and Ethics in Washington, FOIA Advisor, Open the Government, and Project on Government Oversight—filed an amicus brief in FMI v. Argus Leader, urging the Supreme Court to apply appropriate canons of statutory construction and maintain the status quo.

The Open and Responsive Government Act of 2019 also codifies the D.C. Circuit’s 2016 decision in American Immigration Lawyers Association v. Executive Office for Immigration Review, which held that agencies may not withhold a portion of a record simply because part of the record may not be responsive to a FOIA request.  CoA Institute applauds this effort as well.

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Media Contact: Nichole Van Valkenburg, nichole.vanvalkenburg@causeofaction.org | 202-317-0266