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Resetting the Freedom of Information Act and Protecting Government Transparency

By Lane Hagar

A successful democracy relies on an informed citizenry. To help increase transparency and citizen participation in the democratic process, Congress enacted the Freedom of Information Act (FOIA) in 1966. FOIA enables Americans to learn what their government is up to and hold it responsible for its actions. FOIA does that by giving members of the public an enforceable right to access government records, subject to nine narrow exemptions.

One of the FOIA exemptions, exemption 4, was recently the subject of a United States Supreme Court case, Food Marketing Institute v. Argus Leader Media (FMI). 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 was primarily information the disclosure of which would be likely “to cause substantial harm to the competitive position of the person from whom the information was obtained.” (The standard was developed in the Nat’l Parks & Conservation Ass’n v. Morton case).

Unfortunately, the recent FMI case adopted a widely expanded interpretation of exemption 4’s coverage of “confidential” information. The majority opinion, written by Justice Gorsuch, held “confidential” meant information that is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.” As Justice Breyer noted in dissent – “the fact that private actors have ‘customarily and actually treated’ commercial information as secret” essentially leads to the public only having access to information already freely shared by a private actor. This requirement undermines FOIA’s meaningfulness because “where information is publicly available, people do not submit FOIA requests – they use Google.” Additionally, he explained the fundamental incompatibility between giving “such determinative weight” to “the government’s preference for secrecy” and FOIA’s goal of shedding light on government action.

The information potentially exempted by this expanded reading of exemption 4 has played a crucial role in maintaining vital health and safety protections. Some information that may no longer be subject to mandatory disclosure under FOIA is critical to consumer safety, such as U.S. Food and Drug Administration (FDA) data on: dangerous opioid use, risks posed by certain drugs and medical devices, contamination in drug manufacturing facilities, post-marketing studies of drug risks, and uses of drugs disapproved by the FDA. Of course, this list is for just one agency, and even it is not exhaustive. However, it demonstrates the far-reaching dangers posed to Americans’ health and safety because of the Court’s damaging opinion.

Congress must amend exemption 4 to restore access to information threatened by the Supreme Court’s decision in FMI. the Thankfully, Senators Grassley, Leahy, Feinstein, and Cornyn have introduced a bipartisan piece of legislation that will effectively codify the National Parks substantial competitive harm test for determining whether commercial or financial information is “confidential.” This bill is an important step to protecting consumers by restoring access under FOIA to vital health and safety information that has been publicly disclosed for decades. Please contact your U.S. Senators today and tell her or him to co-sponsor the Open and Responsive Government Act!