The Shape of Things to Come (Part 2)

February 27, 2017

Last week, I posted my take on the future of FOIA (Freedom of Information Act) requests on the US government. What I neglected to do was to discuss the possible impact of relatively recent changes made in the US law by the FOIA Improvement Act of 2016 offered as improving transparency and access. From here, it gets a little technical.

Two of the relevant 2016 changes, as summarized by the US Department of Justice, are as follows:

  1. “Agencies ‘shall withhold information’ under the FOIA ‘only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption’ or ‘disclosure is prohibited by law.’
  2. “Agencies shall ‘consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible.’”[1]

Now, to be fair, these changes would appear to undercut my negative view of the future use of the US FOIA in CI. However, they do not.

As for #1, this does not change the current underlying interpretation of the FOIA that its Exemption 4 of the FOIA still covers

“two distinct categories of information in federal agency records, (1) trade secrets, and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential.”[2]

In other words, anything falling into either category of Exemption 4 cannot be released.

The current interpretations of the scope of Exemption 4 are very broad. With a few exceptions, the federal courts have held that “trade secrets” here have a meaning broader than the usual meaning. That is, it covers “virtually any information that provides a competitive advantage” [3]. That means more is kept from release than is covered by what most of us understand a trade secret to be.

As #2’s “privileged or confidential”, the current standard is not merely whether the “information would customarily [not] be disclosed to the public by the person from whom it was obtained” [4], but rather

“commercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained” [5].

In other words, what the FOIA protects from disclosure in the context of CI is, in practice, even broader than the plain language of Exemption 4. So, adding language which directs an agency to “foresee” this or “consider” that will not change the overly protective standards now in place.

[1], numbers added.





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