Protect the Public’s Right to Know

Pass the Open and Responsive Government Act

In a recent decision, Food Marketing Institute v. Argus Leader Media (FMI), the U.S. Supreme Court drastically expanded the scope of the government’s ability to withhold information from the public under the Freedom of Information Act’s (FOIA) exemption 4, threatening the public’s access to vital public health and safety information.

Exemption 4 exempts from FOIA’s disclosure requirement “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). For decades, courts had held that “confidential” commercial information under the exemption is primarily information the disclosure of which would likely “cause substantial harm to the competitive position of the person from whom the information was obtained.” (Nat’l Parks & Conservation Ass’n v. Morton)

In the FMI case, the Court held that “confidential” information under exemption 4 means information that is “customarily and actually treated as private by its owner,” leaving open the question whether, for the exemption to apply, the government also must have provided assurance that it would keep the information confidential. As a result of the Court’s decision, the public now may have access only to information that is already openly shared. Vital health and safety information about foods, drugs, and other products, the environment, and government waste may be shielded from the public.

Examples of information submitted by non-governmental entities that provides important public health and safety information that will now be harder, if not impossible, for the public to access because of the Supreme Court’s new interpretation of exemption 4 include:

• Information about contamination in drug manufacturing facilities, such as the McPherson, Kansas Pfizer Hospira manufacturing facility, where records obtained through FOIA showed that the company had failed to fix several contamination and manufacturing process defects.
• Information about uses that the FDA disapproved for drugs on the market.
• Information about violations of safety regulations at food processing facilities, such as U.S. Department of Agriculture meat and slaughterhouse inspection reports.
• Information about government waste, such as records held by FEMA showing how contractors performed under contracts for relief work after Hurricane Maria.
• Information about environmental hazards, such as records held by EPA showing the amount of pollution released by companies into waterways.

Bipartisan legislation called the Open and Responsive Government Act (S. 2220) would restore the longstanding understanding of exemption 4, and thereby restore access under FOIA to information that has been disclosed for decades but could now be hidden from public view. The legislation would codify the long-time reading of exemption 4, under which commercial information is exempt from disclosure only if disclosure would likely cause substantial harm to the competitive position of the person from whom the information was obtained.

We urge the Senate to restore the public’s longstanding access to important information by passing S. 2220.