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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0861%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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

i
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?

ii

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.

iv
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
© WBA. © Gee crccessesscesnecssnescsusectemmnsssesnstens 10, 13, 16
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
© TEAL. © Ge ccnemneensnscersnsesseccssssremenesemmnmmnannans 6, 11
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.

2

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).

3

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.

4

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

5

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

6

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.

7

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

8

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);

9

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.

10

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

11

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,

12

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).

13

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

14

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

15

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

16

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

17

(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:

18

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.

19
CONCLUSION
The petition for a writ of certiorari should be
granted.

Respectfully submitted,
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) 689-6000

aunikowsky@jenner.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0861%3A08. Public record. Not legal advice.