Unpacking FOIA's 'Foreseeable Harm' Standard
Communications Lawyer, Winter 2020
8 Pages Posted: 19 Feb 2020
Date Written: January 1, 2020
Even in a hyperpartisan and bitterly divided Congress, at least one thing continues to unite policymakers on both sides of the aisle: the need for reform to the Freedom of Information Act (FOIA). In July 2019, for instance, a bipartisan group of senators — including Republican Senators Chuck Grassley of Iowa and John Cornyn of Texas — introduced the Open and Responsive Government Act of 2019. The bill aims “to reverse recent developments that undermine the public’s right to access information and hold government accountable,” including the Supreme Court’s reshaping of FOIA Exemption 4 in Food Marketing Institute v. Argus Leader.
The FOIA Improvement Act of 2016 — the most recent amendment to FOIA and the focus of this article — received similarly broad partisan support. Passing the House by a voice vote and receiving unanimous consent in the Senate, the bill was signed into law on June 30, 2016. Among the Act’s major changes was the codification of a Department of Justice (DOJ) policy known as the “foreseeable harm” standard. As amended, FOIA permits an agency to withhold information from a requester only if it “reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption.” The requirement does not apply where “disclosure is prohibited by law,” i.e., the agency must withhold the information and has no discretion to release it. Though this provision did not generate much jurisprudence in the first two years of its adoption, district courts in New York and the District of Columbia are now giving shape to it, and the D.C. Circuit will soon have the opportunity to consider it.
This article focuses on the two fronts where the foreseeable harm standard may have the greatest impact. The first is the deliberative process privilege of FOIA Exemption 5, which applies to “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The second is the part of FOIA Exemption 4 that covers “commercial or financial information obtained from a person and privileged or confidential.” There are now a number of lower court decisions that have addressed the impact of the foreseeable harm standard on each exemption. After a brief word about the foreseeable harm provision’s origins and impetus, this article considers recent developments in these two areas and suggests how courts might resolve disputes that may come before them.
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