D.C. Circuit: FOIA’s ‘foreseeable harm’ standard has teeth

In a case brought by the Reporters Committee and the Associated Press, the U.S. Court of Appeals for the D.C. Circuit issued an opinion earlier this month with its most expansive and detailed explanation of the Freedom of Information Act’s “foreseeable harm” provision to date, holding that the FBI failed to justify withholding documents regarding the agency’s impersonation of an Associated Press editor in 2007.

Congress added the foreseeable harm provision to FOIA in 2016 in an effort to limit agencies’ overuse and abuse of FOIA’s exemptions. Withholdings have skyrocketed in recent years, generating widespread concern that FOIA has tilted so far in favor of government secrecy that it is failing to serve its core purpose of ensuring the public knows what the government is up to. To counteract that secrecy, the foreseeable harm provision prohibits agencies from withholding information — even if it falls within the scope of one of FOIA’s exemptions — unless the agency reasonably foresees that disclosure of the record would harm an interest protected by the exemption, or disclosure is prohibited by law.

Although this provision is more than five years old, the D.C. Circuit’s opinion in Reporters Committee v. Federal Bureau of Investigation is only the court’s second opportunity to address the standard, and it is the first time it has offered a robust description of what the provision requires. In a prior decision from 2020, the D.C. Circuit held that the Justice Department could withhold internal forms used during FOIA administrative appeals, but that decision offered little in the way of explaining the contours of the foreseeable harm standard.

Impersonating an editor

The factual background to Reporters Committee starts in 2007, when an FBI agent impersonated an AP editor and created a fake news article to deliver malware to the computer of a juvenile who was suspected of making anonymous bomb threats to his Seattle-area high school. When the incident was uncovered by a staffer at the American Civil Liberties Union in 2014, it sparked outcry from the press and public, and even prompted inquiries from high-ranking members of Congress. In response to the outrage, then-FBI Director James Comey sent a letter to the editor of The New York Times defending the impersonation tactic.

The Reporters Committee and the AP submitted FOIA requests to the FBI to learn more about what happened. Documents later obtained through the organizations’ lawsuit against the agency showed that the FBI had failed to follow its internal rules before its agent posed as a member of the news media, although it claimed the failure to secure internal approval was “not … unreasonable.” Nonetheless, following an inspector general investigation, the FBI adopted a new policy in 2016 providing “guidance” for the “impersonation of members of the news media during undercover activity or an undercover operation,” which also prohibited such conduct without high-level approval.

At issue in the Reporters Committee’s appeal to the D.C. Circuit were additional records regarding the FBI’s 2007 impersonation and the fallout within the government after it was publicly revealed. Those included emails between FBI personnel and Comey about his letter to the Times, drafts of the inspector general report and the FBI’s “factual accuracy” comments on it, drafts of slides concerning undercover operations, and internal FBI emails regarding recommendations for changes in the approval process for impersonating the news media. The FBI cited the deliberative process privilege under Exemption 5, to withhold the records.

The D.C. Circuit’s ruling

The D.C. Circuit began its examination of the foreseeable harm provision by affirming that it “imposes an independent and meaningful burden on agencies” if they are to withhold records from the public; “generalized assertions” are not sufficient, nor are “mere speculative or abstract fears, or fear of embarrassment.” And with respect to the deliberative process privilege in particular, the Court noted that Congress was particularly focused on “overuse and abuse of Exemption 5 and the deliberative process privilege.”

With that backdrop, the Court articulated the following test that must be satisfied for the government to withhold information under the deliberative process privilege and the foreseeable harm provision:

[T]he foreseeability requirement means that agencies must concretely explain how disclosure “would” — not “could” — adversely impair internal deliberations. … A “perfunctory state[ment] 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.

Applying that test, the Court held that the FBI failed to justify its withholding of the draft inspector general report, the factual accuracy comments provided to the inspector general, and the draft internal slides. The government’s declarations were both vague and generic, amounting to nothing more than a “series of boilerplate and generic assertions that release of any deliberative material would necessarily chill internal discussions.”

The Court’s biting descriptions of the declarations as “scanty,” “cookie-cutter,” and “perfunctory” were reinforced by its observation that a declaration submitted by the FBI’s FOIA chief in a different case in 2009 was almost identical to the one submitted in this case, even after the change in the law in 2016. Thus, the agency ignored its obligation to “specifically and thoughtfully determine whether it reasonably foresees that disclosure of each particular record would harm an interest protected by the exemption.”

With respect to the emails regarding Comey’s letter to the editor and the internal FBI emails regarding changes in the approval process, the Court did not look to the FBI’s declarations, but rather held that the “sensitivity of the context in which these conversations arose as well as their subject matter, and the need for confidentiality in discussions of undercover tactics, together provide the particularized context for a finding of foreseeable harm as to both sets of emails.”

The Court’s opinion is a powerful articulation of what the foreseeable harm standard requires. By affirming that “boilerplate, unparticularized, and hypothesized assertion of harm” are insufficient, Congress’ 2016 amendments have been shown to have teeth. And importantly, the Reporters Committee decision puts to bed the argument — repeatedly made by the Justice Department — that the foreseeable harm provision did not significantly alter an agency’s obligations under FOIA.

The consequences of the decision from the D.C. Circuit — which oversees the vast majority of FOIA litigation in the United States — are already apparent. Just days later, a federal judge cited it during a hearing in a case regarding records about Gina Haspel, the CIA director under former President Donald Trump. Judge Carl J. Nichols of the U.S. District Court for the District of Columbia pushed back against a government attorney’s claim that releasing the records would chill the discussions of agency personnel, noting that “boilerplate or general assertions” of harm is no longer sufficient.