On March 15, 2022, Attorney General Merrick B. Garland sent a memorandum to the heads of federal departments and agencies concerning Freedom of Information Act (“FOIA”) issues. In the memorandum, he urged departments and agencies to employ a “presumption of openness” in responding to FOIA requests.
Such guidance to agencies is not unprecedented. In fact, on President Obama’s first full day in office, he issued a memorandum to heads of executive departments and agencies stressing transparency and openness in government. In the memorandum, he stated that “[t]he Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” President Obama’s memorandum directed the Attorney General “to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register.”
What is significant in Attorney General Garland’s memorandum is his emphasis on one of the provisions in the 2016 amendments to the FOIA—the provision that requires agencies to withhold information only if the information falls within the scope of a FOIA exemption, and it is reasonably foreseeable that a disclosure of the information would result in harm to an interest that the FOIA exemption is intended to protect or the disclosure is prohibited by law. Attorney General Garland states that the Department of Justice will not defend agency withholdings that do not meet this requirement.
The memorandum’s emphasis on the foreseeable harm standard is potentially significant for businesses and other entities that submit commercial or financial information to US federal departments and agencies. Such submitters frequently request that information be exempted from public disclosure under Exemption 4 of the FOIA, which protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
Until recently, courts and agencies generally applied Exemption 4 only when a disclosure would be likely to cause the submitter to suffer substantial competitive harm or when a disclosure would impair the government’s ability to obtain similar information in the future. In 2019, however, the Supreme Court, in Food Marketing Institute v. Argus Leader Media, overruled the substantial-competitive-harm standard. In its stead, the Court held that commercial or financial information is “confidential” within the meaning of FOIA Exemption 4 if the submitter customarily and actually treats the information as private and submitted the information under an assurance of privacy (although the Court hedged on whether an assurance of privacy is actually required).
On its face, Argus Leader Media seemed to have eliminated the need to show harm in order to obtain the protections of Exemption 4, but the 2016 foreseeable harm amendment was not discussed by the Court in that case. Cases decided under Exemption 4 since Argus Leader Media, however, have discussed and applied the amendment. The upshot of these cases is that, although an agency or submitter seeking to invoke Exemption 4 does not need to establish that a disclosure would be likely to cause substantial competitive harm, the agency or submitter must nevertheless show that it is reasonably foreseeable that a disclosure would impair some legitimate commercial, financial, business or research interests of the submitter.
Attorney General Garland’s memorandum underscores the need for submitters of information to the government to include arguments about reasonably foreseeable harms in requests for confidential treatment and objections to disclosures in response to FOIA requests.
One other point in the Garland memorandum should be noted: The memorandum states that “speculative or abstract fears or fears of embarrassment” are not the kinds of harm contemplated by the 2016 amendment. Whether Attorney General Garland intended to discount a disclosure’s potential to embarrass outside business entities (as opposed to embarrassment of the government itself) is not clear. In any event, submitters of information that are seeking confidential treatment or objecting to FOIA disclosures would be advised to focus on reasonably foreseeable harms to legitimate commercial, financial, business or research interests that might result from a disclosure.
 Memorandum to Heads of Executive Departments and Agencies (Mar. 15, 2022), available at https://www.justice.gov/ag/page/file/1483516/download. Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009), available at https://obamawhitehouse.archives.gov/the-press-office/freedom-information-act. Id. Id. 5 U.S.C. § 552(a)(8)(A)(i). Garland Mem. at 2. It bears noting that the memorandum also discusses other FOIA-related issues, including proactive disclosures and the handling of chronic backlogs in the processing of FOIA requests. 5 U.S.C. § 552(b)(4). This confidentiality standard was formulated by the United States Court of Appeals for the District of Columbia Circuit in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Some circuits limited the National Parks standard to compulsory submissions, holding that voluntary submissions could be accorded confidential treatment under Exemption 4 if the information at issue was the kind of information that the submitter customarily withheld from the general public. See Critical Mass Energy Project v. Nuclear Reg. Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc). See Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019). District courts in the D.C. Circuit have held that an assurance of confidentiality is not required for Exemption 4 protection. See, e.g., Naumes v. Dep’t of the Army, Civ. A. No. 21-1670 (JEB), slip op. at 19 (D.D.C. Mar. 1, 2022); Cause of Action Inst. v. Export-Import Bank of the U.S., Civ. A. No. 19-1915 (JEB), slip op. at 38 (D.D.C. Jan. 27, 2022). See, e.g., See Naumes, slip op. at 22-23. See id. Agencies generally have regulations requiring them to provide notice to submitters when their information falls within the scope of a FOIA request in order to afford submitters the opportunity to seek confidential treatment and/or object to disclosure. See Garland Mem. at 2.