Amicus Curiae Brief — Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 915 (2019) (No. 18-481)

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No. 18-481

IN THE

Supreme Court of the United Strtes

FOOD MARKETING INSTITUTE,

Petitioner,

Vv.

ARGUS LEADER MEDIA, DBA ARGUS LEADER,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Eighth Circuit

BRIEF OF THE RETAIL LITIGATION

CENTER, INC. AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

DEBORAH R. WHITE ADAM G. UNIKOWSKY

RETAIL LITIGATION Counsel of Record

CENTER, INC. JENNER & BLOCK LLP

1700 N. Moore Street 1099 New York Ave., NW

Suite 2250 Suite 900

Arlington, VA 22209 Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com

QUESTIONS PRESENTED

1. Does the statutory term “confidential” in FOIA

Exemption 4 bear its ordinary meaning, thus requiring

the Government to withhold all “commercial or

financial information” that is confidentially held and not

publicly disseminated—regardless of whether a party

establishes substantial competitive harm from

disclosure?

2. Alternatively, if the Court retains the substantial-

competitive-harm test, is that test satisfied when the

requested information could be potentially useful to a

competitor, or must the party opposing disclosure

establish with near certainty a defined competitive

harm like lost market share?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........cccssssesssersersnenssesseneees i

TABLE OF AUTHORITIES ..........cssssssssrsessserssssesssees ili

INTEREST OF AMICUS CURIAE \...cccccccssesseseseeeneees I

SUMMARY OF ARGUMENT...........cccsssssssssssssesnssesenes 2

BD UEISON 0 ctcersecsesseseecensessesnaniarnenvenienuninteipatemmeienannetiin 4

I. This Court Has Never Articulated A

Principled Basis For The Narrow-

CTI CR a cocevsccsstsecoureccccssiciontestinanetcetonins 5

Il. There Is No Basis For The Narrow-

CI CE iis eseccercicnscnsheakenenneticentticnien i)

Ill. The Narrow-Construction Canon Is

Especially Pernicious As Applied To

Unambiguous Statutes Like Exemption 4....... 14

IV. The Court Should Grant Certiorari

Because The Narrow-Construction Canon

Has A Significant Impact In Lower

iii

TABLE OF AUTHORITIES

CASES

ACLU v. Department of Defense, 543 F.3d 59

(2d Cir. 2008), swmmarily vacated by 558

ey ee rcinseeeninsesncscevesticececnemmnmereneiene 17, 18

ACLU v. United States Department of

Justice, 880 F.3d 473 (9th Cir, 2018) ........cceeeeees 16

Bristol-Myers Co. v. FTC, 424A F.2d 935 (D.C.

es Se ennancedecatehnennisteanisventenescssenemenestneneessesece 5,6

Citizens of Responsibility & Ethics in

Washington v. United States Department

of Justice, 854 F.3d 675 (D.C. Cir. 2017).............. 17

Crooker v. Bureau of Alcohol, Tobacco &

Firearms, 670 F.2d 1051 (D.C. Cir. 1981),

abrogated by Milner v. Department of the

Nawy, 562 U.S. 562 (2011) ........ccccescesceseseeseeeeeeeneeee 13

Department of Defense v. ACLU, 558 U.S.

IE ccihchsiatncenensenserienacenisunesennttedebenemmnnemens 18

Department of the Air Force v. Rose, 425 U.S.

TTI eteieasthicteteecpisinhiomenemicnincseseemnesesesenssenes 3, 7, 8,9

Department of the Interior v. Klamath Water

Users Protective Ass’n, 582 U.S. 1 (2001)............. i)

Encino Motorcars, LLC v. Navarro, 138 S. Ct.

Be IED eccetevemecsmocsecesseesemens 3, 5, 9, 10, 11, 12, 13

FBI v. Abramson, 456 U.S. 615 (1982) ......cccccccceceeenees 8

Getman v. NLRB, 450 F.2d 670 (D.C. Cir.

Grumman Aircraft Engineering Corp. v.

Renegotiation Board, 425 F.2d 578 (D.C.

Cir. 1970) secesesnssnsnecesuenssnensasnennsanssonesssanene 5, 6

John Doe Agency v. John Doe Corp., 493 US.

BGG CED cccnsscevsssrsaseseusesssnassssssenssvensnasessoessscssescesseseeen 9

Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017)... 17

Milner v. Department of the Navy, 562 U.S.

562 (2011) 2, 4, 9, 13

New York Times Co. v. United States

Department of Justice, 756 F.3d 100 es

Cir. 2014) eustususnsusqnennemeanennsennesesnensssssasces 17

Soucie v. David, 448 F.2d 1067 (DC. Cir.

BIFES ) <ncxssconsennsessusnsnsseseessssansescsosnsnesssssesessonssesensceasesosnes 6

United States Department of Justice v.

Julian, 486 U.S. 1 (1988).....ccccccceerersereneeseees 8, 9, 12

United States Department of Justice v.

Landano, 508 U.S. 165 (1998) ......ccccseseesereeeeeenes 9

United States Department of Justice v. Tax

Analysts, 492 U.S. 136 (1989) simmeninis 8

United States Department of State v. Ray, 502

WB, BBG (RBG ) ccccscccsceseccsecessssvscnsasssssssssoenscsnesccsesensees 9

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

FEUD nnenstenisnssincensnresbteninletitinbuiaminiibaeiinines 7

Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir

ae cicsiecetniincieesnnsinneaninneeentnnescsinuiatideimuntinaieesienimass 7

STATUTES

ds 0 ER cneneescisnativecnepnmniainnnicsnetiates 10, 12

5 U.S.C. § 552(b)(3) i 10

ee ee resctersennasseteesemntipeneemeentintimatens 1,10

5 U.S.C. § 552(b)(5) 10

5 U.S.C. § 552(b)(6) " 10

5 U.S.C. § 552(b)(7) 7 . 10, 12

5 U.S.C. § 552(b)(7(F) - 17

5 U.S.C. § 552(D)(8)..........ccecsecereseseeee 10, 16

Lie | eee vee 10

5 U.S.C. § 562(C) ......cececeseeee 6

i iinieneicenntcinenensnnnneimimenennnts 10

29 U.S.C. § 207 asin sacteaiatieniaiad 10

29 U.S.C. § 213(a)(1)-(19) - nena

29 U.S.C. § 213(b)(1)-(B0) .......eccceceeeseeeee 10

29 U.S.C. § 213(D)(1O)(A) ........cceceseceeeneses 10

INTEREST OF AMICUS CURIAE’

The Retail Litigation Center, Inc. (“RLC”) is a

public policy organization that identifies and

contributes to legal proceedings affecting the retail

industry. The RLC’s members include many of the

country’s largest and most innovative retailers. They

employ millions of workers throughout the United

States, provide goods and services to tens of millions of

consumers, and account for tens of billions of dollars in

annual sales. The RLC seeks to provide courts with

retail-industry perspectives on important legal issues

impacting its members, and to highlight the potential

industry-wide consequences of significant pending

cases. Since its founding in 2010, the Retail Litigation

Center has participated as an amicus in more than 100

cases of greatest importance to retailers.

The members of the RLC have a strong interest in

the outcome of this proceeding. Exemption 4 of the

Freedom of Information Act (FOIA) protects against

disclosure of “trade secrets and commercial or financial

information obtained from a person and privileged or

confidential.” 5 U.S.C. § 552(b)(4). When the RLC’s

members disclose confidential information to the

Pursuant to this Court’s Rule 37.3(a), amicus timely notified all

parties of their intention to file this brief. Counsel for all parties

consented to the filing of this brief. Pursuant to this Court’s Rule

37.6, amicus states that this brief was not authored in whole or in

part by counsel for any party, and that no person or entity other

than amicus, its members, or its counsel made a monetary

contribution intended to fund the preparation or submission of this

brief.

government, they rely on Exemption 4 to ensure that

the confidential information will not be released to the

general public. The Eighth Circuit’s decision

artificially narrows Exemption 4 by applying it only if

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

competitive position of’ the provider. Pet. App. 3a.

Thus, even if a company can show that disclosure of

confidential information would be harmful, the Eighth

Circuit nonetheless requires disclosure so long as that

harm does not meet the vague requirement of being

“substantial.” Worse, if a company concludes, and

provides evidence, that disclosure of its confidential

information is likely to cause substantial competitive

harm, the Eighth Circuit’s decision allows a federal

judge to override the company’s assessment—even

though the company is in a far better position than the

court to predict the competitive consequences of

disclosure.

Exemption 4, by its terms, applies to all confidential

information. Thus, if a company discloses information

to the government but otherwise keeps that

information confidential, Exemption 4 requires the

government to respect the company’s confidentiality

decision. The RLC’s members have a strong interest in

ensuring that Exemption 4 is applied according to its

unambiguous terms.

SUMMARY OF ARGUMENT

The Court should grant certiorari to reject “the rule

favoring narrow construction of FOIA exemptions.”

Milner v. Dep't of the Navy, 562 U.S. 562, 579-80 (2011).

This Court has never articulated a principled basis

for the narrow-construction canon. The canon appears

to have originated in ill-considered dicta from a line of

D.C, Circuit cases from the early 1970s. In Department

of the Air Force v. Rose, 425 U.S. 352 (1976), this Court

adopted the narrow-construction canon, citing only the

D.C. Circuit cases in support. Subsequent cases have

repeated the canon, citing previous cases. But this

Court has never explained the basis for this canon,

beyond adverting to FOIA’s supposed general policy in

favor of disclosure.

That supposed general policy is an insufficient basis

for inferring a narrow-construction canon. Last Term,

this Court rejected a nearly identical narrow-

construction canon for Fair Labor Standards Act

(FLSA) exemptions. See Encino Motorcars, LLC v.

Navarro, 138 S. Ct. 1134, 1142 (2018). The employee

argued that because the FLSA is generally intended to

assist employees, exemptions to the FLSA should be

construed narrowly. This Court disagreed, finding that

the FLSA’s exemptions should not be artificially

narrowed based on policy concerns. Here, too,

Exemption 4—and FOIA’s other exemptions—should

be applied according to their terms.

At a minimum, the narrow-construction canon

should not be used to narrow an unambiguous statute.

The Eighth Circuit expressly acknowledged that its

interpretation of Exemption 4 deviated from the

dictionary definition of “confidential,” but it held that

the narrow-construction canon gave it license to ignore

the exemption’s plain text. The Eighth Circuit erred in

unapologetically rewriting a federal statute.

Certiorari is warranted to eliminate the narrow-

construction canon. That canon has a significant impact

in lower-court FOIA litigation, including in cases

involving sensitive law enforcement and national

security materials. In such cases, as in this case, there

is no basis for courts to put a thumb on the scale in

favor of disclosure.

ARGUMENT

The RLC agrees with Petitioner that Exemption 4

of FOIA applies to all confidential information, rather

than a limited subset of confidential information that, in

the view of a federal district judge, would cause

“substantial competitive harm” if released. As

Petitioner explains, the circuits have fractured on the

interpretation of Exemption 4, devising a series of

complex tests untethered from the statutory

requirement that the information be “confidential.”

The Court should hold that “confidential” means

“confidential,” rather than arbitrarily narrowing

Exemption 4 based on a generalized intuition that the

more disclosure, the better.

The RLC writes separately to urge the Court to

reject “the rule favoring narrow construction of FOIA

exemptions.” Milner, 562 U.S. at 579-80. The Eighth

Circuit applied that rule in rejecting Petitioner’s

interpretation of Exemption 4. Pet. App. 4 n.4. Yet

this Court has never articulated any principled basis

for this canon, and none exists. Further, the canon

improperly encourages courts to artificially narrow the

scope of unambiguous FOIA exemptions—as occurred

in this case. This Court recently rejected a similarly

unprincipled narrow-construction canon for FLSA

exemptions. See Encino, 138 S. Ct. at 1142. This Court

should grant certiorari to reject the narrow-

construction canon in this case as well.

I. This Court Has Never Articulated A

Principled Basis For The Narrow-

Construction Canon.

The narrow-construction canon for FOIA

exemptions has humble roots. It appears to have

originated in poorly-explained dicta from D.C. Cireuit

decisions in the early 1970s. This Court then imported

the narrow-construction canon from the D.C. Circuit,

citing the D.C. Circuit’s dicta and offering no additional

explanation. Later decisions of this Court have

continued reciting the narrow-construction canon,

eventually characterizing it as “oft-repeated” and

“consistently stated.” But this Court’s sole support for

this canon has been its own prior cases; it has never

offered any principled explanation for the canon.

The narrow-construction canon appears to have

originated in two D.C, Circuit cases: Bristol-Myers Co.

v. FTC, 424 F.2d 935 (D.C. Cir. 1970), and Grumman

Aircraft Engineering Corp. v. Renegotiation Board,

425 F.2d 578 (D.C. Cir. 1970). Bristol-Myers declared

that “[t)he legislative plan creates a liberal disclosure

requirement, limited only by specific exemptions which

are to be narrowly construed,” 424 F.2d at 938, while

Grumman similarly asserted that “the Act requires

that exemptions be narrowly construed,” 425 F.2d at

580 n.5. In support of this proposition, both cases cited

the statute now codified at 5 U.S.C. § 552(d)." That

statute, however, does not create a _ narrow-

construction canon. It actually says the exact opposite:

“This section does not authorize withholding of

information or limit the availability of records to the

public, except as specifically stated in this section.” 5

U.S.C. § 552(d) (emphasis added). Thus, Congress

insisted that courts follow the specific terms of the

exemptions, rather than artificially narrowing them via

a judge-made narrow-construction canon.

Nonetheless, after creating a narrow-construction

canon out of whole cloth, the D.C. Circuit continued to

invoke it, citing only its prior cases for support.

e In Soucie v. David, 448 F.2d 1067, 1080 (D.C.

Cir. 1971), the D.C. Circuit asserted that

Exemption 4 “is intended to encourage

individuals to provide certain kinds of

confidential information to the Government,

and it must be read narrowly in accordance

with that purpose.” Jd. at 1078. The court

offered no additional explanation but inserted

a footnote consisting of a string-cite of a

Senate Report, a House Report, Bristol-

Myers, Grumman, a district court case, and

seven additional cases that do not mention

FOIA, including two 19th-century cases. /d.

at 1078 n.46.

* At the time, the statute was codified at 5 U.S.C. § 552(c). See

Bristol-Myers, 424 F 2d at 938; Grumman, 425 F.2d at 580 n.5.

e In Getman v. NLRB, 450 F.2d 670 (D.C. Cir.

1971), the D.C. Circuit recited the same

canon, citing Bristol-Myers for support. /d.

at 672.

e In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973), the D.C. Circuit repeated the canon,

citing Getman, Bristol-Myers, and a district

court case that relied on Bristol-Myers. Id.

at 823 & n.11.

e The Vaughn case later returned to the D.C.

Circuit, and the court declared that it had

“repeatedly stated” that exemptions must be

construed narrowly. Vaughn v. Rosen, 523

F.2d 1136, 1142 (D.C. Cir. 1975). The court’s

support for this proposition consisted of

Soucie and the first iteration of Vaughn. Id.

at 1142 nn.23-24.,

This Court first recited the narrow-construction

canon in Department of the Air Force v. Rose, 425 U.S.

352 (1976). In that case, the Court stated that FOIA’s

exemptions “do not obscure the basic policy that

disclosure, not secrecy, is the dominant objective of the

Act.” Id. at 361. Its sole authority for this proposition

consisted of three of the D.C. Circuit cases cited above:

the two Vaughn cases and Soucie. Id. The Court then

offered a block-quotation from a prior case from this

Court that did not recite a narrow-construction canon,

but instead merely characterized FOIA as “broadly

conceived.” Jd. (quoting EPA v. Mink, 410 U.S. 73, 80

(1973)). That block-quotation also cited a Senate

Report that did not endorse a narrow-construction

canon either, but instead observed that “[s]uccess lies

in providing a workable formula which encompasses,

balances, and protects all interests, yet places emphasis

on the fullest responsible disclosure.” /d. (quoting S.

Rep. No. 89-813, at 3 (1965)). No additional explanation

for the narrow-construction canon was provided.

Rose was apparently sufficient to give the narrow-

construction canon a foothold in the law. After Rose,

this Court continued reciting the narrow-construction

canon, citing only its prior cases and offering no

additional explanation. The Court next invoked the

narrow-construction canon in FBI v. Abramson, 456

U.S. 615 (1982). Even though Abramson was only the

second time that this Court had mentioned the canon,

the Court characterized it as “oft-repeated”—citing

only Rose for support. Jd. at 630. The canon appeared

for a third time in United States Department of Justice

v. Julian, 486 U.S. 1 (1988), in which the Court declared

that “the mandate of the FOIA calls for broad

disclosure of Government records,” and thus asserted

that “for this reason we have consistently stated that

FOIA exemptions are to be narrowly construed.” Jd. at

8 (quotation marks and brackets omitted). Despite the

assertion that this canon was “consistently” applied,

the only two cases cited in support of this proposition

were Abramson and Rose. Id.

Subsequent cases from this Court continued to

characterize the narrow-construction canon as a

consistently applied rule, citing prior cases in the

jurisprudential chain. See, e.g., U.S. Dep’t of Justice v.

Tax Analysts, 492 U.S. 136, 151 (1989) (stating that

“these exemptions have been consistently given a

narrow compass” and citing Julian and Abramson);

John Doe Agency v. John Doe Corp., 493 U.S. 146, 152

(1989) (similar, citing Rose); U.S. Dep’t of State v. Ray,

502 U.S. 164, 180 (1991) (similar, citing John Doe). In

United States Department of Justice v. Landano, 508

U.S. 165 (1993), this Court cast the narrow-construction

canon as an “obligation,” citing only John Doe and Rose

for support. Jd. at 181. More recent cases have

continued to assert the canon and cite older cases

without additional explanation. See Dep't of the

Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 8 (2001) (citing Tax Analysts and Abramson);

Milner, 562 U.S. at 571 (citing Tax Analysts, Klamath,

and Landano).

To sum up, the narrow-construction canon has its

origins in D.C. Circuit cases decided almost 50 years

ago that relied exclusively on a statute reciting the

exact opposite of a narrow-construction canon. A canon

with such a weak legal basis is ripe for reconsideration.

II. There Is No Basis For The Narrow-

Construction Canon.

This Court’s sole justification for the narrow-

construction canon has been the “basic policy that

disclosure, not secrecy, is the dominant objective of the

Act.” Rose, 425 U.S. at 361; see Julian, 486 U.S. at 8

(citing FOIA’s “mandate” of “broad disclosure”). This

general policy is not a legitimate basis for a narrow-

construction canon. This Court rejected a similar

narrow-construction canon for FLSA exemptions in

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134

(2018). The Court’s analysis in Encino requires

rejecting the narrow-construction canon for FOIA

exemptions as well.

The FLSA is structured similarly to FOIA. FOIA

imposes a general obligation for the government to

make information available to the public, 5 U.S.C.

§ 552(a), subject to several enumerated exemptions, 5

U.S.C. § 552(b)(1)-(9). Similarly, the FLSA imposes a

general obligation for employers to pay minimum wage

and overtime pay to employees, 29 U.S.C. §§ 206, 207,

subject to several enumerated exemptions, 29 U.S.C.

§ 213(a)(1)-(19) (exemptions to both minimum wage and

overtime requirements), 29 U.S.C. § 213(b)(1)-(30)

(additional exemptions to overtime requirement).

In Encino, this Court considered whether service

advisors at car dealerships fell within the FLSA’s

exemption from the overtime-pay requirement for “any

salesman, partsman, or mechanic primarily engaged in

selling or servicing automobiles, trucks, or farm

implements.” 29 U.S.C. § 213(b)(10)(A). The Court

held that the exemption applied, reasoning that service

advisors were “salesmen” who were “primarily

engaged in ... servicing automobiles.” 138 S. Ct. at

1140-41. The Court rejected the employees’ argument

that the exemption applied only to salesman who sold

(as opposed to serviced) automobiles. /d. at 1141-42.

The employees also “invoked the principle that

exemptions to the FLSA should be construed

narrowly.” Jd. at 1142. This Court “reject{[ed] the

principle as a useful guidepost for interpreting the

FLSA.” Id. It explained that “(bJecause the FLSA

gives no textual indication that its exemptions should

be construed narrowly, there is no reason to give

[them] anything other than a fair (rather than a

‘narrow’) interpretation.” Id. (quotation marks

omitted). It noted that the “narrow-construction

principle relies on the flawed premise that the FLSA

pursues its remedial purpose at all costs,” emphasizing

that it “is quite mistaken to assume ... that whatever

might appear to further the statute’s primary objective

must be the law.” /d. (quotation marks, alterations, and

citations omitted). The Court also observed that the

FLSA has numerous exemptions, and “(t]hose

exemptions are as much a part of the FLSA’s purpose

as the overtime-pay requirement.” Jd. Thus, this

Court held, “we thus have no license to give the

exemption anything but a fair reading.” Jd.

Identical reasoning requires rejecting the narrow-

construction for FOIA exemptions. First, like the

FLSA, FOIA “gives no textual indication that its

exemptions should be construed narrowly.” Id.

(quotation marks omitted). To the contrary, FOIA

instructs that exemptions should be _ construed

according to their terms: “This section does not

authorize withholding of information or limit the

availability of records to the public, except as

specifically stated in this section.” 5 U.S.C. § 552(d)

(emphasis added). Contrary to the 1970s D.C. Circuit

cases in which the _ narrow-construction canon

originated, this provision does not provide license to a

federal court to interpret FOIA exemptions more

narrowly than their text would dictate.

Second, although FOIA doubtless was enacted with

the general purpose of facilitating disclosure of

government information, it “is quite mistaken to

assume ... that whatever might appear to further the

statute’s primary objective must be the law.” Encino,

138 S. Ct. at 1142 (quotation marks omitted). Just as

the FLSA’s exemptions “are as much a part of the

FLSA’s purpose as the overtime-pay requirement,” id.,

FOIA’s exemptions are as much a part of its purpose as

its general disclosure requirement.

Indeed, it is arbitrary to focus on FOIA’s “mandate”

of “broad disclosure,” Julian, 486 U.S. at 8, as a basis

for construing Exemption 4. One could just as easily

say that Exemption 4’s “mandate” is one of broad

protection for confidential information acquired from

third parties, based on Exemption 4’s policy that FOIA

should not harm the confidentiality interests of private

parties who give financial information to _ the

government. And by defining Exemption 4’s mandate

that way, one could just as easily say that Exemption 4

should be construed broadly to achieve that mandate.

That reasoning is faulty, just as the reasoning

underlying the narrow-construction canon is faulty. In

reality, FOIA has multiple objectives reflected in both

the disclosure obligation and the exemptions, and those

objectives are best advanced by applying the statute as

written. Encino, 138 S. Ct. at 1142 (“Legislation is,

after all, the art of compromise, the limitations

expressed in statutory terms often the price of

passage” (quotation marks omitted)).

The narrow-construction canon also produces

counterintuitive results with respect to other FOIA

exemptions. For instance, FOIA Exemption 1 applies

to information kept secret “in the interest of national

defense or foreign policy,” while FOIA Exemption 7

applies to certain “records or information compiled for

law enforcement purposes.” 5 U.S.C. § 552(b)(1), (7).

Under the narrow-construction canon, courts would

assume that Congress intended to disfavor national

security and law enforcement interests, and therefore

that those exemptions should be construed narrowly.

Yet there is nothing in the statutory text, or even in

broad conceptions of policy, that would support judge-

driven efforts to undermine national security and law

enforcement efforts by artificially narrowing the scope

of these exemptions.

Indeed, concerns about law enforcement interests

led the D.C. Circuit to make the opposite error: to

arbitrarily broaden the scope of a different FOIA

exemption based on a perception that FOIA, as

written, did not protect law enforcement interests well

enough. Exemption 2 of FOIA protects materials

“related solely to the internal personnel rules and

practices of an agency,” 5 U.S.C. § 552(b)(2), yet in

Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670

F.2d 1051 (D.C. Cir. 1981), abrogated by Milner v.

Department of the Navy, 562 U.S. 562 (2011), the D.C.

Cireuit expanded that exception to apply to any

materials that might risk “circumvention of agency

regulations or statutes,” in light of its assessment that

Congress would not have wanted to undermine “the

effectiveness of law enforcement agencies.” 670 F.2d at

1074. This Court rejected that countertextual

interpretation in Milner, explaining that Crooker’s

interpretation requires “cutting out some words and

pasting in others until little of the actual provision

remains.” 562 U.S. at 573 (citation and quotation marks

omitted). As Milner demonstrates, FOIA’s exemptions

should be construed based on what they say, rather

than based on courts’ intuitions about whether

disclosure is good or bad. The same reasoning justifies

eliminating the narrow-construction canon.

III. The Narrow-Construction Canon Is

Especially Pernicious As Applied To

Unambiguous Statutes Like Exemption 4.

At a minimum, the Court should reject the

application of the narrow-construction canon in a case

like this one, where the exemption at issue is

unambiguous.

The application of the narrow-construction canon is

even more troubling in this case than in Encino. In

Encino, the employee did not argue that an

unambiguous statute should be modified based on

policy concerns; rather, he merely argued that a

statutory ambiguity should be resolved in the

employee’s favor. In particular, the employee

contended that the exemption at issue was ambiguous

as to whether it applied only to salesmen who sold, or

also to salesmen who serviced, and that the employee

should prevail in light of that ambiguity. Encino, 138 S.

Ct. at 1141-42.

Here, by contrast, the Eighth Circuit applied the

narrow-construction canon to modify an unambiguous

statute. The word “confidential” is not ambiguous.

“Confidential” is an ordinary English word that carries

a well-understood meaning: a document is

“confidential” if it is kept secret, regardless of whether

its disclosure will cause competitive harm. See Pet. 18

& nn.il-12 (citing dictionary § definitions of

“confidential”). To be sure, there may be factual

disputes as to whether a particular document actually

is confidential—for instance, litigants may disagree

about whether the document is customarily disclosed.

But the word confidential is not ambiguous.

Yet the Eighth Circuit applied the narrow-

construction canon nonetheless. It expressly rejected

the argument that the word “confidential” should be

construed according to its “dictionary definition[).”

Pet. App. 4a n4. It found this argument to be

“precluded by the Supreme Court’s admonition that

FOIA exemptions must be narrowly construed.” /d.

(quotation marks omitted). It reasoned that if

dictionary definitions were applied, “Exemption 4

would swallow FOIA nearly whole.” Jd. Thus, it

applied a rule that has no basis whatsoever in the

statutory text: the provider of the information must

proffer evidence not only that the information is

confidential, but evidence of “actual competition and

the likelihood of substantial competitive injury.” Pet.

App. 3a (citation and quotation marks omitted).

The Eighth Circuit’s reasoning is _ pernicious

because it opens the door for courts to alter FOIA to

conform to their policy preferences. If the narrow-

construction canon is merely a tool to resolve

ambiguities, the canon will apply only in the limited

subset of cases where a statute is genuinely ambiguous.

But if the canon can be used to alter unambiguous

exemptions, it becomes much more powerful.

The Eighth Circuit applied the canon to rewrite

Exemption 4, but courts could apply the canon to

rewrite other exemptions as well. For instance, a court

may disagree with Congress’s policy judgment that

information “related solely to the internal personnel

rules and practices of an agency,” or information

“contained in or related to examination, operating, or

condition reports prepared by, on behalf of, or for the

use of an agency responsible for the regulation or

supervision of financial institutions,” is exempted from

disclosure. 5 U.S.C. § 552(b)(2), (8). Thus, a court could

take it upon itself to narrow those exemptions only to

documents that it deems, in its sole discretion, to be

particularly sensitive—in contravention of those

exemptions’ plain terms.

At a minimum, this Court should grant certiorari to

clarify that, even if the narrow-construction canon

applies in some contexts, it does not apply where there

is no statutory ambiguity to resolve. Here, the word

“confidential” is unambiguous and the statute should be

applied as written.

IV. The Court Should Grant Certiorari

Because The Narrow-Construction Canon

Has A Significant Impact In Lower

Courts.

As this case illustrates, the narrow-construction

canon significantly affects FOIA litigation in the lower

courts. Thus, whether that canon should be retained is

a question of sufficient practical importance to warrant

granting certiorari.

Lower courts routinely invoke the narrow-

construction canon in decisions ordering disclosure of

documents, including in cases involving documents

related to law enforcement and national security. See,

e.g., ACLU v. U.S. Dep't of Justice, 880 F.3d 473, 482-83

(9th Cir. 2018) (requiring disclosure of materials

addressing electronic surveillance and_ tracking

devices); Citizens of Responsibility & Ethics in Wash.

v. U.S. Dep’t of Justice, 854 F.3d 675, 681-82 (D.C. Cir.

2017) (vacating decision exempting FBI

correspondence’ related to _ public corruption

investigation); Lucaj v. FBI, 852 F.3d 541, 549 (6th Cir.

2017) (requiring disclosure of documents shared

between FBI and foreign government); N.Y. Times Co.

v. U.S. Dep't of Justice, 756 F.3d 100, 103, 111 (2d Cir.

2014) (requiring disclosure of documents related to

targeted killings via drone strikes).

ACLU v. Department of Defense, 543 F.3d 59 (2d

Cir. 2008), swmmarily vacated by 558 U.S. 1042 (2009),

provides an illustrative example of the canon’s practical

impact. In that case, the requestor sought disclosure of

photographs depicting treatment of detainees by

United States soldiers in Iraq and Afghanistan. /d. at

63. The government sought to withhold the

photographs under the FOIA exemption for law

enforcement records that “could reasonably be

expected to endanger the life or physical safety of any

individual.” 5 U.S.C. § 562(b)(7(F). It contended that

releasing the information could endanger the lives of

American troops in the Middle East. 543 F.3d at 63.

The Second Circuit rejected this argument, holding

instead that the exemption applied only if the

government identified specific individuals who were

endangered. Jd. at 70. The court expressly stated that

this interpretation was driven by the narrow-

construction canon:

The defendants’ construction of “any individual”

as not requiring the government to name or

even roughly identify any individual ... is not a

narrow one. The reading of “any individual” as

requiring a FOIA defendant to identify an

individual with reasonable specificity is a

narrower construction, and to be preferred on

that ground alone. ... [TJhe principle that FOIA

exemptions are to be construed narrowly cabins

the permissible construction of the phrase “any

individual.” A construction that requires the

agency to identify with reasonable specificity the

person or persons who could reasonably be

expected to be endangered accords with that

principle. The defendants’ unbounded

interpretation does not.

Id. The Second Circuit’s decision precipitated the

passage of special legislation intended to protect the

photographs from disclosure, and this Court vacated

the Second Circuit’s decision in light of that legislation.

Dep't of Defense v. ACLU, 558 U.S. 1042 (2009).

The RLC does not take a position on how any of

these cases should have been decided in the absence of

a narrow-construction canon. Rather, the RLC merely

emphasizes that the narrow-construction canon

significantly affects FOIA litigation in practice. This

Court’s review is warranted to clarify that courts

should interpret FOIA exemptions according to their

terms, rather than distorting those exemptions via a

narrow-construction canon.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,