In June 2019, the Supreme Court fundamentally reversed course from decades of Freedom of Information Act (FOIA) Exemption 4 case law in its decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019); 61 GC ¶ 213. In this ruling, the Supreme Court jettisoned (indeed, mocked and pilloried) the D.C. Circuit's long-standing principle that information was not protected by Exemption 4 unless its release was likely to cause “substantial competitive harm” to the submitter. Justice Gorsuch, in a straightforward deconstruction, found that harm was mentioned nowhere in Exemption 4, and should not be placed there by judges.
Argus has, as the Court no doubt intended, led many lower courts to apply a much simpler test for application of Exemption 4. Where the facts are as they were in Argus, i.e. where a submitter provides information to the Government that it otherwise keeps confidential, and the Government provides the submitter with an explicit assurance of confidentiality, the analysis is over, and the information is properly withheld. In these cases, following courts have required no showing that release of the material would cause competitive harm, explicitly citing Argus as overruling this prior test used by the D.C. Circuit in cases such as National Parks.
So far, so good, and so predictable, given the intentionally simple Argus analysis. The opinion in Argus is only 12 pages long, and is a good example of a case chosen for streamlined facts that enable the Court to render a basic principle clearly. But not every case will present the same facts as Argus; indeed few have. Therefore, the legacy of Argus, so far as it can be determined after 18 months in the wild, has included attempts by courts to wrestle with issues that the Court, either intentionally or not, left out of its intentionally simple analysis. While some cases have fit easily into the Argus mold, others have presented more complex circumstances, and courts and practitioners have had to fill in gaps and account for complications not presented by the original Argus facts. Courts have wrestled with whether affirmative assurances of confidentiality from the agency are needed, whether the submitter has demonstrated that submitted information has actually been kept confidential, whether the impact of the 2016 FOIA Improvement Act has an impact on Argus, and more.
Argus started in a gilded cage, its clean, simple facts allowing the Court to make a strong textualist point. In the 18 months since its release, however, it has evolved, and will continue to evolve as it is applied to less carefully chosen facts.
Argus in Captivity—The Court in Argus overturned a broadly accepted, 45-year-old D.C. Circuit precedent establishing the framework for consideration of claims that information submitted to the Government should not be released under FOIA due to the application of Exemption 4, for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 USCA § 552(b)(4). Under this precedent, courts asked whether disclosure of submitted materials was likely either: “(1) to impair the Government's ability to obtain necessary information in the future; or (2) to 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, 770 (D.C. Cir. 1974).
The Supreme Court in Argus rejected this test as inconsistent with the plain language of Exemption 4, which contains no reference to competitive harm. Instead, the Court relied on the ordinary definition of “confidential” as merely “private or secret” as opposed to harmful. 139 S. Ct. at 2362–63. The Court identified two circumstances under which information might qualify as confidential: when it is “customarily kept private” or if it was provided under “some assurance that it will remain secret.” In Argus, the information was customarily kept confidential, and the agency explicitly assured the submitter that the information submitted would not be released. The Court held that under those circumstances, the information qualified for Exemption 4.
The decision in Argus provides as clear an illustration of a textualist approach to statutory interpretation as is likely to be found. Indeed, Argus has become a leading statement on this topic. According to Westlaw, Argus has been cited more than 40 times for its textualist lessons (Headnotes 13 and 7). This is more than twice as many citations as for its actual FOIA holding (Headnote 17). The argument for the National Parks test has some natural force in the context of FOIA as a disclosure statute. If the statute was intended to err on the side of disclosure, as it surely was, the D.C. Circuit's harm test acted to prevent frivolous or reflexive assertions of protection. But Justice Gorsuch was having none of this, observing simply that the statute should mean what it said when it said FOIA did not apply to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Harm does not appear, he observed, so it is not to be added.
Having said this much, he elected to say nothing else, leaving the elaboration and resolution of special cases to the lower courts. In the past 18 months, we have observed exactly that, and several unique post Argus litigation themes have evolved. We discuss several of them below, though this is not an exhaustive list.
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