FOIA Disclosure and the Supreme Court

Abstract

This decade marks 50 years since a golden age of both transparency legislation and environmental law in the United States. In the late 1960s and early 1970s, both topics separately commanded strong bipartisan support that produced a flurry of legislative activity to protect the health of the environment and of American democracy itself. Yet this era proved short-lived. By 1980, environmental law had become highly partisan, rendering future environmental protection efforts deeply imperiled. The crown jewel of the government transparency movement, the Freedom of Information Act (FOIA), has also undergone significant change since the enactment of the legislation, including a number of judicial decisions that have expanded the government’s ability to withhold information from the public.

Since its inception and increasingly over the last few decades, FOIA has served as a tool for environmental actors and concerned citizens to monitor environmental law and policy in the interest of raising awareness and checking abuse. Yet in the past two years, two Supreme Court decisions concerning the scope of FOIA’s exemptions have chipped away at the Act’s utility for requesters of environmental information: Food Marketing Institute v. Argus Leader Media and U.S. Fish and Wildlife Service v. Sierra Club.

This Note is the first to consider these cases side-by-side and explore whether they reflect changes in the Supreme Court’s overall posture toward FOIA. It also breaks new ground in analyzing the specific implications of these cases for environmental requesters and litigants.

Keywords: Freedom of Information Act (FOIA), Administrative Law, Environmental Law