September 19, 2019

United States Senate

Washington, DC  20510

 

Dear Honorable Senators,

The undersigned groups urge you to co-sponsor bipartisan legislation, the Open and Responsive Government Act (S. 2220) introduced by U.S. Sens. Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.), John Cornyn (R-Texas), and Dianne Feinstein (D-Calif.). In a recent U.S. Supreme Court decision, Food Marketing Institute v. Argus Leader Media (FMI), the Court drastically expanded the scope of FOIA’s exemption 4, threatening the public’s access to vital public health and safety information. This legislation would restore access under the Freedom of Information Act (FOIA) to information that has been disclosed for decades to FOIA requestors but could now be hidden from public view.

Exemption 4 exempts from FOIA’s disclosure requirement “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). In longstanding precedent, courts had held that “confidential” commercial information is primarily information the disclosure of which would likely “cause substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). 

In FMI, the Court greatly expanded the scope of “confidential” information under exemption 4, holding that the exemption covers information that is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy” (but leaving open the question of whether the exemption applies where only the first prong is met). By adopting this much broader definition, the Court expanded exemption 4 in such a way that the public may now have access only to information that is already openly shared. As a result, vital health and safety information about the environment, foods, drugs, and other products, as well as government spending waste, may be shielded from public oversight. 

To ensure that watchdog organizations, the media, and the public still have access to vital information submitted by non-governmental actors, Congress must promptly amend FOIA to reinforce transparency and ensure that the interpretation of “confidential” commercial information that had widely been accepted throughout the federal courts of appeals, is once again the law. The Open and Responsive Government Act (S. 2222) would do that by codifying the primary holding of National Parks and its progeny that commercial information is exempt as “confidential” under exemption 4 only if disclosure of the information is likely to cause substantial harm to the competitive position of the person from whom the information was obtained.

We urge you to support this commonsense bill to restore a longstanding FOIA interpretation and public access to the sorts of information on which we have relied for years to keep consumers safe and government accountable.

 

Respectfully,

American Civil Liberties Union

American Federation of Teachers

Association of Alternative Newsmedia

Campaign for Accountability

Cause of Action Institute

Center for Biological Diversity

Center for Responsive Politics

Center for Science and Democracy at the Union of Concerned Scientists

Centro de Periodismo Investigativo (Puerto Rico)

Citizens for Responsibility and Ethics in Washington (CREW)

Consumer Action

Demand Progress

Electronic Privacy Information Center (EPIC)

Essential Information

Food & Water Watch

Government Accountability Project

Government Information Watch

Greenpeace USA

Human Rights Watch

Jobs to Move America

National Immigration Law Center

National Security Archive

National Security Counselors

News Leaders Association 

News Media Alliance

Open the Government

Project On Government Oversight

Project South

Prostasia Foundation

Public Citizen

Public Employees for Environmental Responsibility

R Street Institute

Radio Television Digital News Association

Reporters Committee for Freedom of the Press

Society of Professional Journalists