Amicus Curiae Brief — Food Marketing Institute, Petitioner v. Argus Leader Media, dba Argus Leader

No. 18-481

IN THE

Supreme Court of the United States

FOOD MARKETING INSTITUTE

Petitioner,

V.

ARGUS LEADER MEDIA, D/B/A ARGUS LEADER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS AND 36 MEDIA ORGANIZATIONS IN

SUPPORT OF RESPONDENT

Bruce D. Brown

Counsel of Record

Katie Townsend

Caitlin Vogus

Adam A. Marshall

Daniel J. Jeon

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW, Suite 1020

Washington, D.C. 20005

bbrown@rcfp.org

(202) 795-9300

Counsel for Amici Curiae

(Additional counsel for amici listed in Appendix A)

i

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amici Curiae ............................................. 1

Summary of Argument ............................................... 4

Argument ..................................................................... 8

I.

FOIA’s plain text, as amended, requires

agencies to disclose records otherwise covered

by a discretionary exemption, unless it

reasonably foresees that disclosure will

cause harm particularly protected by an

exemption. ......................................................... 8

II.

Petitioner’s arguments are incompatible with

the foreseeable harm standard. ..................... 12

III. The National Parks test comports with

congressional intent and FOIA’s foreseeable

harm requirement. ......................................... 15

A. National Parks correctly identifies the

primary interest protected by

Exemption 4—the potential harm to

competitive interests of third parties. 16

B. The National Parks standard is

consistent with FOIA’s foreseeable

harm standard. .................................... 18

IV. The public has a strong interest in

understanding how the government

spends tax dollars and contracts with private

parties. ............................................................ 20

Conclusion ................................................................. 25

Appendix A: Additional Counsel ............................ A-1

ii

TABLE OF AUTHORITIES

CASES

9 to 5 Org. for Women Office Workers v. Bd. of

Governors of the Fed. Reserve Sys.,

721 F.2d 1 (1st Cir. 1983) ...................................... 19

Argus Leader Media v. U.S. Dep’t of Agriculture,

889 F.3d 914 (8th Cir. 2018) .................................. 14

Biles v. Dep’t of Health and Human Servs.,

931 F. Supp. 2d 211 (D.D.C. 2013) ........................ 23

Bragdon v. Abbott, 524 U.S. 624 (1998) ................... 18

Cook v. Hudson, 429 U.S. 165 (1976) ....................... 14

Dep’t of Air Force v. Rose, 425 U.S. 352 (1976) .......... 8

Dow Jones Co., Inc. v. Fed. Energy Regulatory

Comm’n, 219 F.R.D. 167 (C.D. Cal. 2003) ............ 23

Ecological Rights Found. v. Fed. Emergency Mgmt.

Agency, 2017 WL 5972702 (N.D. Cal. 2017) ......... 11

Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc.,

139 S. Ct. 628 (2019) .............................................. 18

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018) ............................................ 17

Mills v. Alabama, 384 U.S. 214 (1966)....................... 2

Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157 (2004) .................................................. 2

National Parks & Conservation Ass’n v. Morton,

498 F.2d 765 (D.C. Cir. 1974) ........................ passim

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) .................................................. 8

iii

Rosenberg v. United States Department of Defense,

342 F. Supp. 3d 62 (D.D.C. 2018) .......................... 11

Sanks v. Georgia, 401 U.S. 144 (1971) ................. 6, 14

Spannaus v. Dep’t of Justice,

824 F.2d 52 (D.C. Cir. 1987) .................................. 19

U.S. Dep’t of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749 (1989) ........................... 20

STATUTES

5 U.S.C. § 552 .............................................................. 2

5 U.S.C. § 552(a)(8) ............................................... 2, 15

5 U.S.C. § 552(a)(8)(A) ...................................... passim

5 U.S.C. § 552(b)(4) ......................................... 4, 16, 17

5 U.S.C. § 552(b)(5) ................................................... 11

5 U.S.C. § 552b(c)(4) .................................................. 17

FOIA Improvement Act of 2016, Pub. L. No. 114–

185, 130 Stat. 538 (2016) ............................... passim

S. 337, 114th Cong. (2015–2016) ................................ 9

CONGRESSIONAL MATERIALS

122 Cong. Rec. 24,181 (1976) .................................... 17

H. Rep. No. 110–45 (2007) .......................................... 8

H. Rep. No. 94–1441 (1976) (Conf. Rep.) ............. 8, 17

S. Rep. No. 104–272 (1996) ......................................... 8

S. Rep. No. 114–4 (2015) ................................... passim

S. Rep. No. 1219 (1964) ............................................. 13

S. Rep. No. 813 (1965) ................................................. 8

S. Rep. No. 93–854 (1974) ........................................... 8

iv

Staff of H. Comm. on Oversight and Gov’t Reform,

114th Cong., FOIA is Broken: A Report (2016) .... 10

OTHER AUTHORITIES

Annual Report—Google Diversity, Google,

https://perma.cc/2VKT-FXZQ ................................ 23

Black, Female, and a Silicon Valley ‘Trade Secret,’

CNN (Mar. 18, 2013),

https://perma.cc/44CJ-GH7Z ................................. 23

David Leonhardt, Amazon’s Surrender is Inspiring,

N.Y. Times (Oct. 3, 2018),

https://nyti.ms/2UWSMxS ..................................... 21

EEO-1 Frequent Asked Questions and Answers,

Equal Employment Opportunity Commission,

https://perma.cc/L5CK-XUHR (last visited Mar. 24,

2019) ....................................................................... 22

H. Claire Brown, Amazon Gets Huge Subsidies to

Provide Good Jobs—But It’s a Top Employer of

SNAP Recipients in at Least Five States, New Food

Econ. (Apr. 19, 2018),

https://perma.cc/3WG3-EBR3................................ 20

Inclusion & Diversity, Apple,

https://perma.cc/A6WH-2EZR ............................... 23

John Lauerman & Jeremy Kahn, Bezos Blinks and

Raises Amazon’s Minimum Wage in U.S., U.K.,

Bloomberg (Oct. 2, 2018),

https://bloom.bg/2GVfh30 ...................................... 21

Leanna Garfield, Amazon Will Soon Start Accepting

Food Stamps, Bus. Insider (Jan. 9, 2017),

https://perma.cc/N84D-Q5JG ................................ 21

Letter from Tammy R. Daub, Paul Hastings LLP, to

Candice Spalding, Deputy Director of the

v

Department of Labor (Sept. 29, 2017),

https://perma.cc/G2VD-HN4W .............................. 22

Rebecca Smith, Indictments Are Returned in

California Reliant Case, Wall. St. J. (Apr. 9, 2004),

https://on.wsj.com/2T88wg6 .................................. 24

Will Evans & Sinduja Rangarajan, Oracle and

Palantir Said Diversity Figures Were Trade

Secrets. The Real Secret: Embarrassing Numbers,

Reveal (Jan. 7, 2019),

https://perma.cc/K4R4-6EDR ................................ 22

Will Evans & Sinduja Rangarajan, We Got the

Government to Reverse Its Longtime Policy to get

Silicon Valley Diversity Data, Reveal (Nov. 15,

2018), https://perma.cc/YHM3-3VY4 .................... 22

INTEREST OF AMICI CURIAE1

Amici curiae are the Reporters Committee for

Freedom of the Press, American Society of News

Editors, The Associated Press, Associated Press

Media Editors, Association of Alternative Newsmedia,

California News Publishers Association, Californians

Aware, The E.W. Scripps Company, First Amendment

Coalition, First Look Media Works, Inc., Inter

American Press Association, Investigative Reporting

Workshop at American University, Los Angeles Times

Communications LLC, The McClatchy Company, The

Media Institute, Media Law Resource Center, MPA –

The Association of Magazine Media, National

Newspaper Association, The National Press Club,

National Press Club Journalism Institute, National

Press Photographers Association, National Public

Radio, Inc., New England First Amendment Coalition,

The New York Times Company, News Media Alliance,

The NewsGuild - CWA, Online News Association,

POLITICO LLC, ProPublica, Radio Television Digital

News Association, Reporters Without Borders, Reveal

from The Center for Investigative Reporting, Society

of Environmental Journalists, Society of Professional

Journalists, South Dakota Newspaper Association,

TEGNA Inc., and Tully Center for Free Speech

(collectively, “amici”).

Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae state that no party’s counsel authored this brief in whole

or in part, no party or party’s counsel made a monetary

contribution intended to fund the preparation or submission of

this brief, and no person other than the amici curiae, its

members, or its counsel made monetary contributions intended

to fund the preparation or submission of this brief. Both parties

have given blanket consent to the filing of all amicus briefs.

1

2

Amici file this brief in support of Respondent

Argus Leader Media (“Argus Leader”). Amici rely on

the Freedom of Information Act (“FOIA” or “the Act”),

5 U.S.C. § 552, to gather information and inform the

public about government activities. FOIA is an

important tool frequently used by the press in

carrying out its role “as a powerful antidote to any

abuses of power by government officials and as a

constitutionally chosen means for keeping officials

elected by the people responsible to all the people

whom they were selected to serve.” Mills v. Alabama,

384 U.S. 214, 219 (1966).

As this Court has

recognized, the Act is a “structural necessity in a real

democracy.” Nat’l Archives & Records Admin. v.

Favish, 541 U.S. 157, 172 (2004).

This case marks the first time the Court has

granted certiorari to interpret FOIA since the

enactment of the FOIA Improvement Act of 2016.

FOIA Improvement Act of 2016, Pub. L. No. 114–185,

130 Stat. 538 (2016). The 2016 amendments to the

Act impose new, additional requirements that must be

met before records may be withheld under one of

FOIA’s discretionary exemptions, which include

Exemption 4. Specifically, the amendments impose a

“foreseeable harm” requirement, prohibiting a

government agency from withholding information

unless it “reasonably foresees that disclosure would

harm an interest protected by” that exemption. 5

U.S.C. § 552(a)(8). While the FOIA request at issue

in this case is not governed by the foreseeable harm

standard because it was made before the effective date

of the 2016 amendments, see Pub. L. No. 114–185, 130

Stat. 544–45 (2016), future FOIA requests like it will

be. Thus, regardless of whether this Court affirms or

3

rejects the interpretation of Exemption 4 articulated

by the Eighth Circuit below, for all FOIA requests

submitted since June 30, 2016, the responding

government agency will be required to show harm

that is reasonably foreseeable to withhold records

under Exemption 4. Id. Accordingly, amici write not

only to urge the Court to interpret Exemption 4 in this

case in a manner that is consistent with the Act’s

purpose and congressional intent, but also to ensure

the Court is aware of the plain text of the Act—

including its foreseeable harm requirement—as it

stands today.

4

SUMMARY OF ARGUMENT

Petitioner argues that the plain text of

Exemption 4, 5 U.S.C. § 552(b)(4), permits

government agencies to withhold records requested

under FOIA if a third party claims that the

information is either kept private, or, alternatively,

that disclosure might lead to “negative publicity” or

“could” result in some financial harm. Pet. Br. 16, 53.

Petitioner’s purported textual argument, however, is

irreconcilable with recent amendments to FOIA that

impose a “foreseeable harm” requirement that must

be satisfied before agency records can be withheld.

See FOIA Improvement Act of 2016, Pub. L. No. 114–

185, 130 Stat. 538, 539 (2016).

Because Congress’s 2016 amendments to FOIA

significantly alter the statute, but do not apply to the

request at issue in this case, this Court should

dismiss the writ of certiorari as improvidently

granted. Alternatively, amici urge the Court to affirm

the decision of the United States Court of Appeals for

the Eighth Circuit, and adopt the test set forth in

National Parks & Conservation Ass’n v. Morton, 498

F.2d 765 (D.C. Cir. 1974).

The recent amendments to FOIA impose a

“foreseeable harm” requirement for all discretionary

withholdings, including those under Exemption 4, to

prevent agencies from unnecessarily withholding

records from the public. See S. Rep. No. 114–4, at 2–

3 (2015). Under this requirement, a record that falls

within the scope of one of FOIA’s enumerated,

discretionary exemptions cannot be withheld unless

the agency also “reasonably foresees that disclosure

would harm an interest protected by [that]

5

exemption.” 5 U.S.C. § 552(a)(8)(A); see also FOIA

Improvement Act of 2016, Pub. L. No. 114–185, 130

Stat. 538, 539 (2016). Thus, even if Petitioner was

correct with respect to its interpretation of an isolated

word within Exemption 4 as applied to the particular

request at issue in this case—which it is not—that

interpretation cannot survive under the plain

language of the Act as amended; FOIA now expressly

requires a government agency to show that it

reasonably foresees harm from disclosure in order to

justify withholding records, including those the

agency claims contain “confidential” information

under Exemption 4. Cf. Pet. Br. 2 (incorrectly

suggesting that the foreseeable harm standard, 5

U.S.C. § 552(a)(8)(A), governs the FOIA request in

this case); Cert. Pet. Br. 2 (same).

In the context of Exemption 4, the foreseeable

harm standard requires agencies to release records

unless (1) the record meets the threshold

requirements of the exemption, and (2) the agency

demonstrates that it reasonably foresees that

disclosure of the records will harm an interest

protected by Exemption 4—i.e., the competitive

position of a third party. Thus, the fact that

information in a record meets the threshold

requirements of Exemption 4, alone, does not mean

that it may be withheld. Nor is mere speculation that

there may be some indirect harm in the future

sufficient to justify withholding. Congress expressly

rejected both of these propositions when it codified the

foreseeable harm standard. See S. Rep. No. 114–4, at

8 (noting that “mere ‘speculative or abstract fears,’ or

fear of embarrassment, are an insufficient basis for

withholding information”).

6

This Court’s precedent states that the Court

exercises its “powers of judicial review only as a

matter of necessity.” Sanks v. Georgia, 401 U.S. 144,

151 (1971) (dismissing in light of new legislation

addressing the issue presented). There is no question

that the Court’s holding in this case would be limited

to FOIA requests submitted before Congress’s

enactment of the foreseeable harm requirement.

Accordingly, amici join Respondent in urging that the

writ of certiorari in this case be dismissed as

improvidently granted. Resp. Br. 14.

Alternatively, amici urge the Court to affirm

the decision of the United States Court of Appeals for

the Eighth Circuit, which adopted and applied the test

articulated by the United States Court of Appeals for

the District of Columbia Circuit in National Parks &

Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir.

1974). The plain text of FOIA’s foreseeable harm

standard substantially mirrors the National Parks

test. Both require the government to show that harm

will result to the competitive position of a third party

before it may withhold records under Exemption 4.

Just as the National Parks test requires agencies to

show how disclosure of documents will result in

competitive harm, the foreseeable harm standard

requires agencies to show how disclosure will result in

harm to an interest protected by an exemption—in the

context of Exemption 4, the competitive position of the

third party. Cf. Pet. Br. 46.

The strong public interest in access to records

regarding expenditures of public funds also counsels

in favor of affirming the Eighth Circuit’s decision.

FOIA is a powerful tool used by journalists, news

7

organizations, and the public to monitor how the

government spends tax dollars.

For example,

journalists have used SNAP data to determine which

private companies obtain the greatest benefits from

government subsidies. Similar records also allow the

public to understand which companies the

government selects for lucrative contracts. The

National Parks test ensures that the public can access

agency records to learn the details of how government

programs use public dollars.

For the reasons set forth herein, amici agree

with Respondent that the writ of certiorari in this case

should be dismissed as improvidently granted, Resp.

Br. 14, or, alternatively, that the decision of the

United States Court of Appeals for the Eighth Circuit

should be affirmed.

8

ARGUMENT

I.

FOIA’s plain text, as amended, requires

agencies to disclose records otherwise

covered by a discretionary exemption,

unless it reasonably foresees that

disclosure will cause harm particularly

protected by an exemption.

The Freedom of Information Act (“FOIA” or the

“Act”) makes government records presumptively open

to the public in order to “ensure an informed citizenry,

vital to the functioning of a democratic society, needed

to check against corruption.” NLRB v. Robbins Tire

& Rubber Co., 437 U.S. 214, 242 (1978). It reflects “a

general philosophy of full agency disclosure unless

information is exempted under clearly delineated

statutory language.” Dep’t of Air Force v. Rose, 425

U.S. 352, 360 (1976) (citing S. Rep. No. 813, at 3

(1965)).

Congress has amended FOIA on a number of

occasions to improve its effectiveness, often narrowing

exemptions or providing procedural support for

requesters. See, e.g., H. Rep. No. 110–45, at 4–5

(2007) (noting the OPEN Government Act of 2007 was

aimed

at

addressing

problems

in

FOIA

administration); S. Rep. No. 104–272, at 5 (1996)

(explaining the 1996 amendments to FOIA sought to

“encourage electronic access” to government records

and create more efficient and timely government

responses); H. Rep. No. 94–1441, at 24–25 (1976)

(Conf. Rep.) (explaining that the 1976 Government in

the Sunshine Act amended FOIA Exemption 3 by

creating particular criteria for an agency to withhold

records); S. Rep. No. 93–854, at 182 (1974) (explaining

9

the 1974 amendments to FOIA require courts to

conduct de novo review of executive claims of national

security).

Congress’s most recent amendments to FOIA,

through the FOIA Improvement Act of 2016, limit the

circumstances in which the government can withhold

records from the public by requiring agencies to

provide records unless disclosure is prohibited by law

or the agency reasonably foresees that disclosure

would harm an interest protected by an exemption.

See S. 337, 114th Cong. (2015–2016). The full text of

FOIA’s foreseeable harm standard reads:

An agency shall—

(i) withhold

information

under

this

section only if—

(I)

the agency reasonably foresees

that disclosure would harm an interest

protected by an exemption described in

subsection (b); or

(II)

disclosure is prohibited by law;

5 U.S.C. § 552(a)(8)(A).

In the Senate Report accompanying the bill,

Congress explained that it was amending FOIA to

address its concern about the “growing trend” of

agencies overusing FOIA exemptions to withhold

records from the public. See S. Rep. No. 114–4, at 2–

3 (2015). As the Senate Report states, the foreseeable

harm standard was intended to prohibit the

government’s use of “discretionary exemptions to

withhold large swaths of Government information,

even though no harm would result from disclosure.”

Id. at 3. It further requires agencies applying the

10

foreseeable standard to determine whether disclosing

a “particular document, given its age, content, and

character, would harm an interest protected by the

applicable exemption,” and that it may withhold the

document only after establishing this likelihood of

concrete harm. Id. (emphasis added). The Senate

Report makes clear that “mere ‘speculative or abstract

fears,’ or fear of embarrassment, are an insufficient

basis for withholding information.” Id. at 8 (citation

omitted).

The concerns expressed in the Senate Report

mirror those identified in a 2016 report by the former

chairman of the House Committee on Oversight and

Government Reform, Jason Chaffetz, which

highlighted agencies’ overuse and misapplication of

FOIA exemptions, including Exemption 4. Staff of H.

Comm. on Oversight and Gov’t Reform, 114th Cong.,

FOIA is Broken: A Report iii–iv, 20 (2016). Titling the

report “FOIA is Broken,” then-Chairman Chaffetz

called for structural reform to enable FOIA to

facilitate government transparency, as intended,

noting a comment from a 26-year-old freelance

journalist, who said: “I often describe the handling of

my FOIA request as the single most disillusioning

experience of my life.” Id. at ii, 39. The report

explained that reform was necessary to prevent

agencies from broadly invoking exemptions when

harm will not occur, specifically pointing to

Exemption 4. See id. at 20.

Since the passage of the FOIA Improvement

Act of 2016, courts have followed Congress’s intent by

applying the foreseeable harm standard as a distinct

requirement that an agency must meet, in addition to

showing that a record falls within the scope of a

11

discretionary FOIA exemption. In Rosenberg v.

United States Department of Defense, for example, the

United States District Court for the District of

Columbia explicitly rejected the argument of the

Department of Defense (“DoD”) that the foreseeable

harm standard merely duplicates existing agency

obligations under FOIA. 342 F. Supp. 3d 62, 78

(D.D.C. 2018). The district court held that the DoD

did not meet the foreseeable harm requirement when

it claimed that disclosing any records “would

jeopardize the free exchange of information between

senior leaders within and outside of the [DoD],”

without any showing that disclosure would harm the

deliberative process, as protected by Exemption 5.2

Id.; see also Ecological Rights Found. v. Fed.

Emergency Mgmt. Agency, 2017 WL 5972702 (N.D.

Cal. 2017) (holding that a government agency failed to

satisfy the foreseeable harm standard when it

withheld documents without explaining why the

release of each specific document would harm the

deliberative process).

In sum, with the addition of the foreseeable

harm requirement to FOIA, any agency that seeks to

withhold records under a discretionary exemption

must establish both that a specific, discretionary

FOIA exemption applies and that the agency

reasonably foresees that the interest protected by that

exemption will be harmed by disclosure.

FOIA’s Exemption 5 exempts from disclosure “interagency or intra-agency memorandums or letters that would not

be available by law to a party other than an agency in litigation

with the agency, provided that the deliberative process privilege

shall not apply to records created 25 years or more before the

date on which the records were requested.” 5 U.S.C. § 552(b)(5).

2

12

II.

Petitioner’s arguments are incompatible

with the foreseeable harm standard.

Petitioner argues that this Court’s sole

consideration in interpreting Exemption 4 should be

whether the submitter keeps the information private,

Pet. Br. 16, or, in the alternative, that Exemption 4

permits a “broad inquiry assessing whether there is a

reasonable possibility that commercial or financial

interests may be injured, directly or indirectly.” Id. at

47 (emphasis added).

Both interpretations of

Exemption 4 are incompatible with the plain text of

the Act as it exists today, and consequently the writ of

certiorari should be dismissed as improvidently

granted.

First, even assuming, arguendo, that

Petitioner’s arguments pass muster under the

language of the Act prior to its amendment in 2016,

under current law, FOIA cannot be interpreted to

allow for the blanket withholding under Exemption 4

of any record that is kept private. See Pet. Br. 16. The

foreseeable harm standard prohibits withholding of

records unless disclosure will harm the protected

interest—in this case, a third party’s competitive

standing. 5 U.S.C. § 552(a)(8)(A); see also Resp. Br.

24–36 (explaining that the common law requires a

showing of likelihood of competitive harm in

determining what is “confidential”).3 The mere fact

Petitioner’s argument that records should be exempt

from disclosure if they are kept private—regardless of any

competitive harm—misses the point of FOIA. Most government

records are kept “private” until they are disclosed under FOIA.

Congress enacted FOIA because the government was

consistently denying the public access to government records “for

3

13

that information may have been kept private does not

demonstrate that competitive harm will result from

its release. Thus, Petitioner’s interpretation of the

word “confidential” in Exemption 4, even if adopted by

this Court, will not govern FOIA requests submitted

since the effective date of the FOIA Improvement Act

of 2016.

Should its interpretation of “confidential” fail,

Petitioner suggests another atextual reading of

Exemption 4. Petitioner argues that Exemption 4

contemplates “a broad inquiry assessing whether

there is a reasonable possibility that commercial or

financial interests may be injured, directly or

indirectly.” Pet. Br. 47 (emphasis added). Again, the

plain language of the foreseeable harm standard

makes clear that potential harms will not suffice:

nondisclosure is permissible only when the agency

“reasonably foresees that disclosure would harm” a

protected interest. 5 U.S.C. § 552(a)(8)(A). It does not

allow for records to be withheld because it is possible

some harm to an interest “may” occur in the future.

See id.

At trial, Petitioner’s witnesses asserted ways

that “competitors could use the SNAP data,” and

testified about their fears of how the data could be

used, and the stigma that might be caused if the data

were released. Pet. Br. 51–52 (emphasis added). Such

speculative claims of possible harm, however, do not

good cause,” with no further explanation. See S. Rep. No. 1219,

at 8 (1964). And its most recent amendments to the Act sought

to prohibit agencies from withholding records even if a particular

exemption applies. S. Rep. No. 114–4, at 3.

14

satisfy the Act’s requirement that records may be

withheld only if it is reasonably foreseeable that

disclosure would harm a third party’s financial

interests. And as testimony submitted by the Argus

Leader made clear, any competitive harm was “very

limited and very unlikely,” and that any risk of harm

was low. Id. at 53 (citing Reporter’s Record II:238; id.

at II:351; id. at II:362).

An evaluation of harm is not “unworkable” as

Petitioner claims. Pet. Br. 40. Evaluating these

claims of harm on a case-by-case basis is in fact

precisely what Congress intended when it codified the

foreseeable harm requirement. As the Senate Report

accompanying the FOIA Improvement Act makes

clear, “the content of a particular record should be

reviewed and a determination made as to whether the

agency reasonable foresees that disclosing that

particular document, given its age, content, and

character, would harm an interest protected by the

applicable exemption.” S. Rep. No. 114–4, at 8

(emphasis added).

Indeed, allowing Petitioner’s

hypothetical claims of harm to satisfy the foreseeable

harm requirement would “swallow FOIA nearly

whole.”

Argus Leader Media v. U.S. Dep’t of

Agriculture, 889 F.3d 914, 916 n.4 (8th Cir. 2018).

For these reasons, dismissal of the writ of

certiorari as improvidently granted is appropriate.

This Court exercises its “powers of judicial review only

as a matter of necessity.” Sanks v. Georgia, 401 U.S.

144, 151 (1971) (dismissing in light of new legislation

addressing the issue presented); see also Cook v.

Hudson, 429 U.S. 165, 165 (1976) (dismissing writ of

certiorari as improvidently granted in light of changes

in applicable law). As noted by Respondent, the

15

United States Department of Agriculture has

represented that it will not withhold the records at

issue in this case based on Exemption 4’s

confidentiality protections, even if this Court reverses

the Eighth Circuit’s judgment mandating disclosure.

See Resp. Br. 1–3, 15; U.S. Br. 32, 35. And, contrary

to Petitioner’s assertion, there is no question that this

Court’s holding would be limited to FOIA requests

submitted before Congress’s enactment of the

foreseeable harm requirement. See Resp. Br. 3; Pub.

L. No. 114–185, 130 Stat. 544–45 (2016); cf. Pet. Br. 2

(incorrectly asserting that the foreseeable harm

standard, 5 U.S.C. § 552(a)(8), governs the FOIA

request in this case, which was submitted in 2011);

Cert. Pet. Br. 2 (same). Because the Argus Leader, or

any other requester, could file a FOIA request for the

same Supplemental Nutrition Assistance Program

(“SNAP”) data today and have it governed by the

foreseeable harm standard, this case is neither an

efficient nor effective use of this Court’s resources.

III.

The National Parks test comports with

congressional

intent

and

FOIA’s

foreseeable harm requirement.

Should this Court interpret Exemption 4 in this

case, it should affirm, and adopt the standard set

forth in National Parks & Conservation Ass’n v.

Morton, 498 F.2d 765 (D.C. Cir. 1974). The National

Parks test not only correctly identifies and addresses

the purpose of Exemption 4, but it is also consistent

with the foreseeable harm requirement applicable to

all FOIA requests submitted after June 30, 2016, the

effective date of the FOIA Improvement Act. Pub. L.

No. 114–185, 130 Stat. 538 (2016).

16

A. National Parks correctly identifies the

primary interest protected by Exemption

4—the potential harm to competitive

interests of third parties.

Exemption 4 exempts from disclosure “trade

secrets and commercial or financial information

obtained from a person and privileged or confidential.”

5 U.S.C. § 552(b)(4).

Federal appellate courts,

beginning with the United States Court of Appeals for

the District of Columbia Circuit in National Parks,

have identified the primary purpose of Exemption 4

as “protect[ing] persons who submit financial or

commercial data to government agencies from the

competitive disadvantages which would result from its

publication.” 498 F.2d at 768 (emphasis added);4 see

also Resp. Br. 24 n.10 (listing cases from circuits

adopting National Parks). In doing so, the National

Parks court looked to the Senate Report

accompanying FOIA’s initial enactment, which

detailed numerous examples of documents that would

likely be exempt from disclosure, and legislative

statements from government officials and members of

the public who explained why such an exemption for

financial or commercial records was necessary. 498

F.2d at 768–70. Each statement focused on protecting

businesses from the “unfair advantage” that its

National Parks also discusses the government’s interest

in obtaining data from third parties as another interest protected

by Exemption 4. National Parks, 498 F.2d at 767–68. This

interest is not at issue in this case. Petitioner did not and cannot

assert that release of the requested record would inhibit the

government’s ability to collect SNAP data because participation

in the SNAP program requires private parties to submit such

data.

4

17

competitors would be given through access to certain

documents, such as loan applications. Id.

Congress

incorporated

National

Parks’

interpretation of Exemption 4 through its enactment

of the Government in the Sunshine Act, which

provided an exemption to federal open meetings laws

with the exact same language as FOIA’s Exemption 4.

Compare 5 U.S.C. § 552(b)(4) with 5 U.S.C. §

552b(c)(4).

As the House Conference Report

explained: “The language of the House amendment

regarding trade secrets and confidential financial or

commercial information is identical to the analogous

exemption in the Freedom of Information Act, 5

U.S.C. 552(b)(4), and the conferees have agreed to this

language with recognition of judicial interpretations of

that exemption.” H. Rep. No. 94–1441, at 15 (Conf.

Rep.) (emphasis added) (regarding the exemption

similar to Exemption 4 in open meetings laws, 5

U.S.C. § 552b(c)). This statement was in clear

reference to National Parks; the House of

Representatives’ summary of the companion bill

explains that the exemption protects “commercial or

financial material obtained from a person and

privileged or confidential, as interpreted in cases such

as National Parks & Conservation Assn. v. Morton.”

122 Cong. Rec. 24,181 (1976) (emphasis added)

(citation omitted).

Congress was thus aware of National Parks’

interpretation of FOIA’s Exemption 4 and approved of

it when it created a new law with language identical

to Exemption 4. See id; cf. Lamar, Archer & Cofrin,

LLP v. Appling, 138 S. Ct. 1752, 1762 (2018)

(explaining that when Congress uses “the materially

same language in [a new statute], it presumptively

18

was aware of the longstanding judicial interpretation

of the phrase and intended for it to retain its

established meaning”). This, coupled with the other

59 statutes that Congress enacted that either

expressly incorporate Exemption 4 or use virtually the

same language, see Resp. Br. 36–41, make clear that

Congress intended for National Parks to govern

disclosure requirements. See Helsinn Healthcare S.A.

v. Teva Pharm. USA, Inc., 139 S. Ct. 628, 633–34

(2019); Bragdon v. Abbott, 524 U.S. 624, 645 (1998)

(“When administrative and judicial interpretations

have settled the meaning of an existing statutory

provision, repetition of the same language in a new

statute indicates, as a general matter, the intent to

incorporate

its

administrative

and

judicial

interpretations as well.”).

B. The National Parks standard is

consistent with FOIA’s foreseeable harm

standard.

Under National Parks, commercial or financial

information is considered “confidential,” and may

therefore be withheld under FOIA’s Exemption 4, if

its disclosure “is likely . . . to cause substantial harm

to the competitive position of the person from whom

the information was obtained.” 498 F.2d at 770. That

standard comports with the current text of FOIA,

adopted by Congress through enactment of the

foreseeable harm standard in 2016. See 5 U.S.C.

§ 552(a)(8)(A). Indeed, in adopting the National

Parks standard, the United States Court of Appeals

for the First Circuit presciently described the

“principle to be derived from National Parks[], and the

cases which have followed it”:

19

[I]nformation will not be regarded as

confidential under exemption 4 unless it

can be demonstrated that disclosure will

harm a specific interest that Congress

sought to protect by enacting the

exemption.

9 to 5 Org. for Women Office Workers v. Bd. of

Governors of the Fed. Reserve Sys., 721 F.2d 1, 9 (1st

Cir. 1983). Like National Parks, the plain text of the

foreseeable harm standard requires the government

to demonstrate (1) harm to an interest protected by a

FOIA exemption—here, the competitive position of a

third party—and (2) a reasonable likelihood that

harm will occur. Compare National Parks, 498 F.2d

at 770, with 5 U.S.C. § 552(a)(8).

The 2016 amendments to the Act include an

unambiguous direction from Congress that a showing

of foreseeable harm to an interest protected by a

discretionary FOIA exemption must be made before

records may be withheld. Thus, even if the Court does

not adopt the National Parks test for Exemption 4

now, current and future FOIA requests will be

governed by an essentially, if not entirely, identical

standard. Indeed, as noted above, the Argus Leader

can simply file a new FOIA request today that would

require the Food and Drug Administration to apply

the foreseeable harm standard. See Spannaus v. Dep’t

of Justice, 824 F.2d 52, 61 (D.C. Cir. 1987) (noting that

parties can “simply refile [their] FOIA request

tomorrow and restart the process”).

20

IV.

The public has a strong interest in

understanding how the government

spends tax dollars and contracts with

private parties.

As Congress envisioned, journalists regularly

use FOIA to inform the public about the actions of

government. Access to records showing the

government’s interactions with third parties and how

taxpayer dollars are spent is an important part of

ensuring the public knows “what their government is

up to,” and further counsels in favor of a narrow

reading of Exemption 4. U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S.

749, 773 (1989).

For instance, the New Food Economy, a

nonprofit newsroom, has used data from the SNAP

program, similar to the data at issue in this case, to

report which companies benefit the most from

taxpayer-funded food subsidies. This data revealed

that some of the largest beneficiaries of this federal

program—aimed at supporting the nutritional needs

of low-income families and individuals—were multibillion dollar companies. H. Claire Brown, Amazon

Gets Huge Subsidies to Provide Good Jobs—But It’s a

Top Employer of SNAP Recipients in at Least Five

States, New Food Econ. (Apr. 19, 2018),

https://perma.cc/3WG3-EBR3. As a result of the New

Food Economy’s reporting, the public learned that in

some states, employees of Amazon, McDonald’s, Uber,

and Walmart benefited the most from the SNAP

program. See id. In addition, the report showed

which companies benefit from a United States

Department of Agriculture pilot program that permits

online grocers to accept SNAP benefits. Id.; see also

21

Leanna Garfield, Amazon Will Soon Start Accepting

Food Stamps, Bus. Insider (Jan. 9, 2017),

https://perma.cc/N84D-Q5JG. These SNAP records

help the public fully understand how public dollars go

towards meeting the nutritional needs of workers, as

well as how some companies receive taxpayer dollars

through SNAP benefit spending.

Access to these and similar SNAP records is

necessary if the public is to fully understand how and

where government money is spent, which in turn

encourages public officials to represent the public’s

interest in overseeing such spending. Following the

New Food Economy’s article, a bill was introduced in

the Senate that would tax large companies for any

government benefits its employees receive, with the

goal of ensuring that the government is not

subsidizing the wealthiest corporations. See David

Leonhardt, Amazon’s Surrender is Inspiring, N.Y.

Times (Oct. 3, 2018), https://nyti.ms/2UWSMxS. In

response, Amazon, for example, increased its

minimum wage to $15 and committed to lobbying for

an increased federal minimum wage. See John

Lauerman & Jeremy Kahn, Bezos Blinks and Raises

Amazon’s Minimum Wage in U.S., U.K., Bloomberg

(Oct. 2, 2018), https://bloom.bg/2GVfh30.

The public also has an interest in knowing what

companies the government chooses to do business

with. For example, reporters at Reveal from the

Center for Investigative Reporting used FOIA to

obtain EEO-1 reports of various government

contractors, which included data about the race and

gender of the contractors’ employees, from the

Department of Labor. See Will Evans & Sinduja

Rangarajan, We Got the Government to Reverse Its

22

Longtime Policy to get Silicon Valley Diversity Data,

Reveal (Nov. 15, 2018), https://perma.cc/YHM3-3VY4;

see also EEO-1 Frequent Asked Questions and

Answers,

Equal

Employment

Opportunity

Commission, https://perma.cc/L5CK-XUHR (last

visited Mar. 24, 2019). The records showed that many

technology companies that receive lucrative

government contracts employ very few women or

people of color. See Will Evans & Sinduja Rangarajan,

Oracle and Palantir Said Diversity Figures Were

Trade Secrets.

The Real Secret: Embarrassing

Numbers,

Reveal

(Jan.

7,

2019),

https://perma.cc/K4R4-6EDR. For example, Palantir,

which has received hundreds of millions of dollars in

government contracts to develop technology for law

enforcement entities, has no female executives and

only one female manager. Id.

Many private companies that do business with

the government are quick to assert that any

disclosures in response to FOIA requests may cause

competitive harm. For example, in response to

Reveal’s FOIA request, Palantir’s counsel sent a letter

to the Department of Labor, arguing that the

disclosure of the EEO-1 reports would allow

competitors to “identify changes in relative staffing

levels,” and thus that “it may be possible for a

competitor to gain insight into how Palantir is staffing

its workforce and modify its own workforce

accordingly.” Letter from Tammy R. Daub, Paul

Hastings LLP, to Candice Spalding, Deputy Director

of the Department of Labor (Sept. 29, 2017),

https://perma.cc/G2VD-HN4W (emphasis added).

Claims of competitive harm were even made by

companies—such as Google or Apple—that now

23

voluntarily publicize their reports.

See Annual

Report—Google

Diversity,

Google,

https://perma.cc/2VKT-FXZQ (last visited Mar. 3,

2019) (including latest EEO-1 report); Inclusion &

Diversity, Apple, https://perma.cc/A6WH-2EZR (last

visited Mar. 3, 2019) (same); see also Black, Female,

and a Silicon Valley ‘Trade Secret,’ CNN (Mar. 18,

2013), https://perma.cc/44CJ-GH7Z (noting that many

companies, including Google and Apple, often claimed

that the information disclosed in EEO-1 reports would

cause competitive harm).

The National Parks test, like the foreseeable

harm standard, ensures that agencies do not withhold

records without showing that disclosure will cause

competitive harm to a third party. Application of the

National Parks test has ensured that the public

knows how government programs, like Medicare, are

funded. See, e.g., Biles v. Dep’t of Health and Human

Servs., 931 F. Supp. 2d 211, 222–28 (D.D.C. 2013)

(holding that Exemption 4 does not apply to records

relating to projected costs and revenue provided by

private insurance companies in the Medicare

Advantage or Medicare programs).

The National Parks test has also ensured that

Exemption 4 was not improperly used to withhold

details about government spending.

During its

investigation of the California electricity crisis of the

early 2000s, The Wall Street Journal filed a FOIA

request for an appendix based on Federal Energy

Regulatory Commission employee interviews and

investigations regarding whether two government

contractors had manipulated electricity prices. Dow

Jones Co., Inc. v. Fed. Energy Regulatory Comm’n, 219

F.R.D. 167, 171 (C.D. Cal. 2003) (noting prices had

24

gone from $63 to $750 per megawatt). The district

court, relying on National Parks, held that the agency

failed to meet its burden under Exemption 4. Id. at

178 (noting that the agency relied on the government

interest prong). The released records helped the

Journal inform the public about the California energy

crisis. See, e.g., Rebecca Smith, Indictments Are

Returned in California Reliant Case, Wall. St. J. (Apr.

9, 2004), https://on.wsj.com/2T88wg6.

As these

examples demonstrate, access to records like those at

issue in this case are critical to ensuring that the

public is properly informed about how the government

spends taxpayer dollars, and necessary for the public

to hold government officials accountable to those they

are elected to serve.

25

CONCLUSION

For the foregoing reasons, amici respectfully

urge the Court to dismiss the writ of certiorari as

improvidently granted or, in the alternative, to affirm

the judgment of the Court of Appeals.

Respectfully submitted,

Bruce D. Brown

Counsel of Record

Katie Townsend

Caitlin Vogus

Adam A. Marshall

Daniel J. Jeon

THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS

1156 15th St. NW,

Suite 1020

Washington, D.C. 20005

bbrown@rcfp.org

(202) 795-9300

March 25, 2019

A-1

APPENDIX A

Additional amici counsel:

Kevin M. Goldberg

Fletcher, Heald & Hildreth, PLC

1300 N. 17th St., 11th Floor

Arlington, VA 22209

Counsel for American Society of News Editors

Counsel for Association of Alternative Newsmedia

Karen Kaiser

General Counsel

The Associated Press

200 Liberty Street

20th Floor

New York, NY 10281

Jim Ewert, General Counsel

California News Publishers Association

2701 K St.

Sacramento, CA 95816

Terry Francke

General Counsel

Californians Aware

2218 Homewood Way

Carmichael, CA 95608

David M. Giles

Vice President/

Deputy General Counsel

The E.W. Scripps Company

312 Walnut St., Suite 2800

Cincinnati, OH 45202

A-2

David Snyder

First Amendment Coalition

534 Fourth St., Suite B

San Rafael, CA 94901

David Bralow

First Look Media Works, Inc.

18th Floor

114 Fifth Avenue

New York, NY 10011

Jeff Glasser

Vice President, Legal

Los Angeles Times Communications LLC & The San

Diego Union-Tribune, LLC

2300 E. Imperial Highway

El Segundo, CA 90245

Juan Cornejo

The McClatchy Company

2100 Q Street

Sacramento, CA 95816

Kurt Wimmer

Covington & Burling LLP

1201 Pennsylvania Ave., NW

Washington, DC 20004

Counsel for The Media Institute

George Freeman

Media Law Resource Center

520 Eighth Avenue

North Tower, 20th Floor

New York, NY 10018

Telephone: (212) 337-0200

Telecopier: (212) 337-9893

Email: gfreeman@medialaw.org

A-3

James Cregan

Executive Vice President

MPA – The Association of Magazine Media

1211 Connecticut Ave. NW Suite 610

Washington, DC 20036

Tonda F. Rush

Counsel to National Newspaper Association

CNLC, LLC

200 Little Falls Street, Suite 405

Falls Church, VA 22046

(703) 237-9801 (p) (703) 237-9808 (fax)

tonda@nna.org

Mickey H. Osterreicher

200 Delaware Avenue

Buffalo, NY14202

Counsel for National Press Photographers

Association

Jonathan Hart

Ashley Messenger

Micah Ratner

National Public Radio, Inc.

1111 North Capitol St. NE

Washington, D.C. 20002

Robert A. Bertsche (BBO #554333)

Prince Lobel Tye LLP

100 Cambridge Street

Boston, MA 02114

Counsel for the New England First Amendment

Coalition

David McCraw

V.P./Assistant General Counsel

The New York Times Company

A-4

620 Eighth Avenue

New York, NY 10018

Kurt Wimmer

Covington & Burling LLP

850 10th Street NW

Washington, DC 20001

Counsel for the News Media Alliance

Barbara L. Camens

Barr & Camens

1025 Connecticut Ave., NW

Suite 712

Washington, DC 20036

Counsel for The News Guild – CWA

Laura R. Handman

Alison Schary

Davis Wright Tremaine LLP

1919 Pennsylvania Avenue, NW

Suite 800

Washington, DC 20006

Thomas R. Burke

Davis Wright Tremaine LLP

Suite 800

500 Montgomery Street

San Francisco, CA 94111

Counsel for Online News Association

Richard J. Tofel

President

ProPublica

155 Avenue of the Americas, 13th floor

New York, NY 10013

Kathleen A. Kirby

Wiley Rein LLP

A-5

1776 K St., NW

Washington, DC 20006

Counsel for Radio Television Digital News

Association

D. Victoria Baranetsky

General Counsel

Reveal from The Center for Investigative Reporting

1400 65th Street, Suite 200

Emeryville, California 94608

Bruce W. Sanford

Mark I. Bailen

Baker & Hostetler LLP

1050 Connecticut Ave., NW

Suite 1100

Washington, DC 20036

Counsel for Society of Professional Journalists

Chris Moeser

TEGNA Inc.

8350 Broad Street, Suite 2000

Tysons, VA 22102