Foreseeable Harm Standard

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Introduction

The 2016 amendments to FOIA[1] codified the foreseeable harm standard that was set out in Attorney General Eric Holder's 2009 memorandum.[2]

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 standardy

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.[3].

To date, no cases have been decided that further address the scope or applicability of the foreseeable harm standard.

See Also

External Links

References

  1. Public Law No: 114-185, https://www.congress.gov/bill/114th-congress/senate-bill/337/text
  2. Memorandum for Heads of Executive Deparments and Agencies (Mar. 29, 2009), https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf
  3. https://www.congress.gov/congressional-record/2016/03/15/senate-section/article/S1494-1 legislative history