Center for Investigative Reporting v. US Department of Labor

Amicus brief filed by the Reporters Committee for Freedom of the Press

Court: U.S. District Court for the Northern District of California

Date Filed: Sept. 30, 2019

Update: On Dec. 10, 2019, the U.S. District Court for the Northern District of California granted the Center for Investigative Reporting’s cross-motion for summary judgment, ordering the U.S. Department of Labor to produce the requested employment diversity reports without redactions. The court held that the government “failed to carry its burden” under the foreseeable harm standard. A third party, whose record may be released, has filed an Administrative Procedure Act claim to prevent disclosure.

Background: In 2016, Congress amended the Freedom of Information Act to limit the circumstances in which a federal agency could withhold records from the public. One major addition was the foreseeable harm standard, which requires agencies to provide responsive records unless the agency reasonably foresees that the disclosure could cause harm to a protected interest or the disclosure is protected by law.

In January 2018, Reveal from the Center for Investigative Reporting filed a Freedom of Information Act request with the U.S. Department of Labor seeking employment diversity reports that companies submit to the agency each year.

CIR filed a federal lawsuit in April 2019 against the Labor Department to get the requested records. The Labor Department then filed a motion for summary judgment in August. A month later, the nonprofit filed an opposition to the Labor Department’s motion, as well as a cross-motion for summary judgment.

Our Position: The U.S. District Court for the Northern District of California should ensure that the foreseeable harm standard is properly interpreted and applied for the purposes of its review of the Labor Department’s withholdings under FOIA Exemption 4, which is used by agencies to withhold trade secrets and other confidential business information that individuals or businesses submit to the government.

• The foreseeable harm standard is a distinct requirement that agencies must satisfy in order to withhold information in response to a FOIA request.
• The foreseeable harm standard requires the government to release records covered by Exemption 4 unless such release would harm an interest protected by the exemption.

Quote: “This case presents one of the first opportunities for a district court to assess the foreseeable harm standard and Exemption 4 since the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media. … While the Supreme Court interpreted the meaning of ‘confidential’ in that exemption, it did not (and could not have) interpreted the foreseeable harm standard, which did not apply to the FOIA request at issue in that case.”