Foreseeable Harm Standard

Introduction

The 2016 amendments to FOIA added a foreseeable harm provision to the statute. After its enactment, "the government’s successful invocation of a FOIA exemption cannot justify its withholding of exempt material without a more particularized inquiry into what sort of foreseeable harm would result from the material’s release."

The provision drew inspiration from Attorney General Eric Holder's 2009 memorandum. In 2022, Attorney General Merrick Garland directed agencies to address the foreseeable harm standard in final response letters.

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

Legislative history

The D.C. Circuit Court of Appeals has described the legislative history of the foreseeable harm standard as follows:

Congress adopted the FOIA Improvement Act in part out of “concerns that some agencies [were] overusing FOIA exemptions that allow, but do not require, information to be withheld from disclosure.” S.REP.NO. 4, 114th Cong., 1st Sess. 2 (2015); see also H.R.REP.NO. 391, 114th Cong., 2d Sess. 9 (2016) (“[T]here is concern that agencies are overusing these exemptions to protect records that should be releasable under the law.”). Congress was particularly concerned with increasing agency overuse and abuse of Exemption 5 and the deliberative process privilege. H.R.REP.NO.391, at 9–10 (“The deliberative process privilege is the most used privilege and the source of the most concern regarding overuse.”); see also S.REP.NO.4, at 3. Congress added the distinct foreseeable harm requirement to foreclose the withholding of material unless the agency can “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.” H.R.REP.NO.391, at 9. Agencies cannot rely on “mere ‘speculative or abstract fears,’ or fear of embarrassment” to withhold information. S.REP.NO.4, at 8.

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

Foreseeable harm and the attorney client privilege

Reporters Committee v. CBP (D.D.C. 2021)

In Reporters Committee for Freedom of the Press v. CBP, the court analyzed CBP's showings of foreseeable harm in conjunction with its assertions of the attorney-client privilege, and ruled that the agency was required to disclose certain records withheld under the attorney-client privilege, but could withhold others. This was because for certain of those records:

CBP says even less on the attorney-client privilege, noting only that disclosure would “undermine the attorney-client privilege.” Such a conclusory statement again does not suffice to show a risk of foreseeable harm. True, the Court has already said that establishing the attorney-client privilege will go a long way to show the risk of foreseeable harm. But an agency must still provide a non-generalized explanation on the foreseeable harm that would result from disclosure of attorney-client communications. CBP has barely provided any explanation at all.

Foreseeable harm and the deliberative process privilege

Reporters Committee v. FBI (D.C. Cir 2021)

In Reporters Committee for Freedom of the Press v. FBI, the D.C. Circuit offered its most detailed explanation of what is required under the foreseeable harm provision and the deliberative process privilege. Specifically:

In the context of withholdings made under the deliberative process privilege, the foreseeability requirement means that agencies must concretely explain how disclosure “would”—not “could”—adversely impair internal deliberations. [...] A perfunctory statement that disclosure of all the withheld information—regardless of category or substance—would jeopardize the free exchange of information between senior leaders within and outside of the agency will not suffice. [...] Instead, what is needed is a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward. Naturally, this inquiry is context specific."

District Court Cases

The first district court case to address the foreseeable harm standard was 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, particularly following the Supreme Court's Argus Leader ruling about the scope of Exemption 4.

Seife v. United States Food & Drug Admin. (2d. Cir. 2022)

So far, the Second Circuit is the only federal appellate court that has weighed in on what "interest" is protected by Exemption 4 for foreseeable harm purposes. In Seife v. United States Food & Drug Administration, the Second Circuit ruled that "the interests protected by Exemption 4 of FOIA are the commercial or financial interests of the submitter in information that is of a type held in confidence and not disclosed to any member of the public by the person to whom it belongs." 43 F.4th 231, 240 (2d Cir. 2022). "An agency in a FOIA case can therefore meet the foreseeable harm requirement of the FIA by showing foreseeable commercial or financial harm to the submitter upon release of the contested information." Id. at 241–42. The Second Circuit rejected the government's argument that the "interest" was "simply 'confidentiality'"—which some district courts have found (discussed below)—ruling that argument was "belied by both the structure of the statute and common sense. Congress expressly enacted the FIA to address situations where information would fall within an exemption and yet no harm would result from disclosure, emphasizing that in those circumstances the information must be disclosed." Id. However, the Second Circuit also rejected the plaintiff's argument that the foreseeable harm should be evaluated based on a "measurable diminution in economic value," id. at 240, n.7. The Second Circuit ultimately ruled the government adequately demonstrated that the company's "competitors would benefit from disclosure, and a benefit to competitors would necessarily be a detriment causing harm" to the company, and so met its burden under Exemption 4 and the foreseeable harm standard. Id. at 243.

District court cases

As the Second Circuit noted in Seife, "there are two primary competing district court interpretations of the interests protected by Exemption 4." Id. at 239.

Under one interpretation, which the Seife court rejected, Exemption 4 protects confidentiality itself. The lead case backing this interpretation is American Small Business League v. Department of Defense, in which the district court held that "the relevant protected interest is that of the information's confidentiality — that is, its private nature." 411 F. Supp. 3d 824, 836 (N.D. Cal. 2019) (emphasis in original). Since the requested information was held in confidence by the submitter and given to the government with implied assurances of confidentiality, the foreseeable harm standard was satisfied. Id.

By contrast, the second interpretation is that Exemption 4 protects against competitive harm, such as harm to financial or economic interests. The district court in Center for Investigative Reporting v. U.S. Customs & Border Protection 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." 436 F. Supp. 3d 90, 113 (D.D.C. 2019) (quoting Argus Leader, 139 S. Ct. 2356 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. See also WP Co. v. U.S. Small Bus. Admin., 575 F. Supp. 3d 114, 119 (D.D.C. 2021); Buzzfeed, Inc. v. Dep't of Justice et al, No. CV 19-1977 (EGS), 2023 WL 6847008, at *6 (D.D.C. Oct. 17, 2023).

Additionally, 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. 424 F. Supp. 3d 771, 780 (N.D. Cal. 2019). The court rejected the agency's argument that this ruling would render the Supreme Court's Argus Leader decision 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. Id.

Foreseeable harm and Exemption 7

The exact interaction between Exemption 7 and the foreseeable harm standard is unclear. However, some district courts have concluded that, if Exemption 7(E) applies, "no further foreseeable harm analysis is needed," at least when the agency is required to satisfy the "risk of circumvention of the law" prong of the exemption.

For example, the district court in Citizens for Responsibility & Ethics in Washington v. Department of Homeland Security analyzed the relationship between FOIA's foreseeable harm provision and Exemptions 7(E) and 7(F). The court held that DHS had met the foreseeable harm standard in withholding "information about the size of the President's Secret Service detail," disclosure of which "would result in foreseeable risks of harm to agents and those they protect." The court cautioned against "demand[ing] an even higher degree of foreseeability," which "would mean ignoring the D.C. Circuit's precedents defining the substantive standards under Exemptions 7(E) and 7(F)." The court clarified that "that case law continues in force, even though much of it predates the FOIA Improvement Act."

Foreseeable harm and Exemption 8

In Leopold v. Department of Justice, the D.C. Circuit affirmed that the foreseeable harm standard applies to Exemption 8. Building on the 2021 decision in Reporters Committee, the Court determined that the government must show the “independent and meaningful burden” of the foreseeable harm provision is satisfied when material is withheld under Exemption 8.

Agency Guidance on Foreseeable Harm

Some federal agencies have provided guidance on the application of the foreseeable harm standard, including:

• Department of Interior