Foreseeable Harm Standard

Introduction
The 2016 amendments to FOIA codified the foreseeable harm standard that was set out in Attorney General Eric Holder's 2009 memorandum.

Text of the Foreseeable Harm Standard
See also Text of the FOIA

5 U.S.C. § 552(a)(8)
 * (A) 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; and
 * (ii)
 * (I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and
 * (II) take reasonable steps necessary to segregate and release nonexempt information; and
 * (B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).”

Scope and application of the foreseeable harm standard
The legislative history of the 2016 amendments makes clear that agencies must determine whether the release of “particular documents” will cause foreseeable harm, not simply generic categories of records.

Foreseeable harm and the deliberative process privilege
The first case to address the foreseeable harm standard is Ecological Rights Foundation v. FEMA, from the Northern District of California. The plaintiff in that case submitted FOIA requests to FEMA seeking "information regarding FEMA's compliance with the Endangered Species Act (ESA) during the course of FEMA's implementation of the National Flood Insurance Program (NFIP) in California." The agency produced some records and withheld others in part and in full under Exemption 6 and Exemption 5. Ruling on the parties' cross-motions for summary judgment, the court held that FEMA had not adequately justified its use of the deliberative process privilege for several reasons, including a failure to satisfy the foreseeable harm standard. Specifically, the Court stated: Lastly, FEMA fails to explain how disclosure would expose FEMA's decision-making process so as to discourage candid discussion. FEMA also does not provide any justification for how the agency would be harmed by disclosure as required by the FOIA Improvement Act of 2016. 5 U.S.C. § 552(a)(8)(A)(i). Absent a showing of foreseeable harm to an interest protected by the deliberative process exemption, the documents must be disclosed. In failing to provide basic information about the deliberative process at issue and the role played by each specific document, FEMA does not meet its burden of supporting its withholdings with detailed information pursuant to the deliberative process privilege. In Rosenberg v. DOD, plaintiffs filed a FOIA request for emails to senior DOD officials sent by retired Marine Corps General John F. Kelly relating to Joint Task Force Guantánamo. Defendant's production withheld and redacted documents pursuant to FOIA Exemptions 1, 3, 5, 6, and 7(E). In holding that the Defendant had not properly justified withholding information under Exemptions 1 and 5, the Court cited Ecological Rights Foundation 's interpretation of the foreseeable harm standard. Specifically, the Court stated: "To satisfy the “foreseeable harm” standard, DOD must explain how a particular Exemption 5 withholding would harm the agency’s deliberative process. DOD may take a categorical approach—that is, group together like records—but in that case, it must explain the foreseeable harm of disclosure for each category."In Judicial Watch, Inc. v. U.S. Department of Commerce, Judge Sullivan rejected an agency’s Exemption 5 claims because the agency had not shown that it considered whether disclosure would cause foreseeable harm. In a case brought by Judicial Watch against the National Oceanic and Atmospheric Administration, the agency disclosed hundreds of pages of emails, a large portion of which were redacted under Exemption 5. Judicial Watch argued that NOAA had failed to show the existence of any foreseeable harm from disclosing the disputed pages. The court noted that the foreseeable harm requirement does not go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings, but the government at least needed to do more than "perfunctorily state that disclosure of all the withheld information – regardless of category or substance – would jeopardize the free exchange of information.” Judge Sullivan noted that “the text and purpose of the Act both support a heightened standard for an agency’s withholdings under Exemption 5." The text of the Act states an agency may only withhold information if "the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption." In other words, even if an exemption applies, an agency must release the document unless doing so would reasonably harm a protected interest.

In Natural Resources Defense Council v. U.S. Environmental Protection Agency the Southern District of New York adopted the approach in Judicial Watch and Rosenberg, holding that “across-the-board articulations of harm. . . as to a broad range of document types” does not sufficiently show how a particular withholding will harm the deliberative process. In that case, the EPA cursorily stated that release of records would “discourage open and frank discussion” and “have a chilling effect on the Agency’s decision-making process.”  The court ordered the EPA to submit a revised affidavit or Vaughn index “that more specifically and particularly describes the Exemption 5-related interests that would be harmed by disclosure of the documents at issue.”

Foreseeable harm and Exemption 4
Courts have varied in applying the foreseeable harm standard when an agency withholdings information pursuant to Exemption 4.

In American Small Business League v. Department of Defense, the district court held that the interest protected by Exemption 4 is the "information's confidentiality." 3:18-cv-01979-WHA (N.D. Cal. 2019) ECF No. 153 at 14. Therefore, if the information is held in confidence and given the government with assurances of confidentiality, the foreseeable harm standard is satisfied. Id. (citing Food Marketing Institute v. Argus Leader).

In contrast, the district court in Center for Investigative Reporting v. Department of Labor held that even when information is held in confidence and the government provides assurances of confidentiality, the agency must show how information would harm an interest protected by Exemption 4. 4:19-cv-01843-KAW (N.D. Cal. 2019) ECF No. 39 at 11. The court rejected the agency's argument that this ruling would render the Supreme Court's decision in Food Marketing Institute v. Argus Leader Media meaningless. Id. It explained that the competitive harm test set out in National Parks & Conservation Association v. Morton, 498 F.3d 765, 768 (D.C. Cir. 1974) may still apply in light of the foreseeable harm standard.

The district court in Center for Investigative Reporting v. U.S. Customs & Border Protection similarly held that agencies must "explain how disclosing, in whole or in part, the specific information withheld under Exemption 4 would harm an interest protected by this exemption, such as by causing “genuine harm to [the submitter’s] economic or business interests,” and thereby dissuading others from submitting similar information to the government." 2019 WL 7372663 at *14 (D.D.C. 2019) (quoting Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019) and citing National Parks & Conservation Association v. Morton, 498 F.3d 765 (D.C. Cir. 1974)). The court relied on National Parks for the types of information Exemption 4 is intended to protect. Id. (explaining that Exemption 4 is intended to encourage individuals to subject certain types of information to the government and protect submitters from competitive disadvantage). Because the agency did not meet its threshold burden of showing that withheld information fell within the scope of Exemption 4, the court held that the agency also failed to meet the foreseeable harm standard.