In 1966, Congress enacted the Freedom of Information Act1 (FOIA) with the grand vision to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,”2 providing that federal agencies, “upon any request for records . . . , shall make the records promptly available to any person.”3 However, Congress also included nine exemptions from disclosure,4 highlighting the careful balance the law strikes between “the right of the public to know and the need of the Government to keep information in confidence.”5 The latest amendment to the statute, the FOIA Improvement Act of 2016,6 provides that an agency can withhold information under an exemption only if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or if “disclosure is prohibited by law.”7 Recently, in Reporters Committee for Freedom of the Press v. FBI,8 the D.C. Circuit held that the foreseeable harm standard is not satisfied by “generalized and conclusory statements,”9 but instead requires a rigorous and particularized showing of harm for each category of documents to be withheld.10 In interpreting the statute, the court claimed that the meaning of the statutory text alone was apparent, but clarified no further and instead relied on its analysis of the amendment’s legislative history.11 By departing from the textualist approach to FOIA endorsed by the Supreme Court, the D.C. Circuit intensified the methodological dissonance between the courts and neglected an opportunity to derive the benefits that flow from greater interpretive uniformity.
In June 2007, the Federal Bureau of Investigation (FBI) investigated a series of high school bomb threats by using a surveillance program to monitor the suspect’s electronic activities.12 Seven years later, in October 2014, the media found out that this was done by having a special agent identify himself as an Associated Press reporter and ask the suspect for input on an article, baiting him into clicking a link that installed the tracking malware.13 This discovery elicited widespread criticism from the press and members of Congress,14 leading then–FBI Director James Comey to pen a letter to the editor in November 2014 in the New York Times defending the practice.15 In September 2016, the Department of Justice’s (DOJ) Inspector General revealed that the FBI had adopted an interim policy in June 2016 restricting agents impersonating members of the press.16
Meanwhile, back in October 2014, the Reporters Committee for the Freedom of the Press had submitted two FOIA requests to the FBI asking for records related to impersonation of the press.17 In response to the first request, the FBI claimed to have not found any relevant records, and it ignored all other requests.18 Unhappy with the response, the Reporters Committee and Associated Press (“News Organizations”) sued the FBI and DOJ, alleging that the FBI engaged in wrongful withholding.19 In 2017, the district court granted summary judgment for the government,20 but the D.C. Circuit reversed and remanded on appeal.21 In response, the FBI began releasing records, but still withheld some under several of the enumerated FOIA exemptions.22
Still unsatisfied, the News Organizations again challenged the validity of the exemptions.23 Of particular note, the News Organizations argued the government did not justify its use of the deliberative process privilege under Exemption 524 for six categories of documents: (1) emails between FBI personnel and Director Comey discussing draft revisions of his New York Times letter, (2) drafts of the Inspector General’s report, (3) the FBI’s “Factual Accuracy Comments” on said draft report, (4) drafts of “PowerPoint slides allegedly concerning undercover operations,” (5) the Inspector General’s cover memo accompanying the final Inspector General report, and (6) emails between FBI attorneys and other personnel discussing recommendations for policy changes in the approval process for news media impersonation.25 The district court noted that the new foreseeable harm standard from the FOIA Improvement Act applied to FOIA requests made after June 2016, and that while the D.C. Circuit had “not yet weighed in on [the] new requirement,” the court agreed that agencies must at least “group together like records” and “explain the foreseeable harm of disclosure for each category.”26 The court then determined that the government provided “sufficient detail” on the foreseeable harm for each set of documents, granting summary judgment for the government and upholding all of the withholdings.27 The News Organizations appealed.28
The D.C. Circuit affirmed in part, reversed in part, and dismissed in part.29 Writing for the court, Judge Millett30 affirmed the district court’s judgment as to the Comey emails and internal FBI emails discussing policy changes, but reversed the decision allowing the FBI to withhold drafts of the Inspector General’s report, the Factual Accuracy Comments, and the draft PowerPoint presentations.31 First, the court analyzed whether each set of documents was both predecisional and deliberative, the standard required to invoke the deliberative process privilege.32 On this analysis, the court found that the emails concerning Comey’s draft letter, the drafts of the Inspector General’s report, and the internal FBI emails discussing revisions to the FBI’s undercover tactics were both predecisional and deliberative,33 while the Factual Accuracy Comments and the draft PowerPoint slides were not.34
However, the court did not end its inquiry there. Under the FOIA Improvement Act and the D.C. Circuit’s decision in Machado Amadis v. U.S. Department of State,35 to withhold documents, the government must also show that it “‘reasonably foresees that disclosure would harm an interest protected by’ the FOIA exemption.”36 The court held that this independent standard required “a focused and concrete demonstration” of why disclosing “the particular type of material at issue” would “actually impede” agency deliberations, given “the specific context of the agency action at issue.”37 The court pointed to the FOIA Improvement Act’s legislative history to make this determination, highlighting Congress’s “concern[] with increasing agency overuse and abuse of Exemption 5 and the deliberative process privilege.”38 Under the reasonable foreseeability test, the court found that the government failed to articulate a specific harm from the release of the draft Inspector General report, Factual Accuracy Comments, and draft PowerPoint slides,39 instead making only “boilerplate and generic assertions” that were “wholly generalized and conclusory.”40 The court took particular exception to the fact that the “unparticularized” and “hypothesized” assertions of foreseeable harm were similar to those that predated the FOIA Improvement Act, despite the Act’s foreseeability requirement.41 Nonetheless, the court came to the opposite conclusion regarding the FBI emails, both concerning Comey’s draft letter and revisions to undercover tactics.42 For these categories, their sensitive context and nature established the foreseeability of harm.43 Ultimately, while the drafts of the Inspector General’s report were predecisional and deliberative, they did not meet the foreseeable harm standard and their withholding was reversed, along with the other sets of documents that were not predecisional and deliberative.44
In interpreting the FOIA Improvement Act, the D.C. Circuit briefly noted that the meaning of the statutory text alone was apparent but the court gave no further explanation and focused its analysis on the amendment’s legislative history. By doing so while declaring the text clear rather than ambiguous, the D.C. Circuit departed from the Supreme Court’s textualist approach to FOIA. This failure to conform perpetuates the methodological disjunction between the Supreme Court and the appellate courts beneath it and forgoes the benefits that come from greater interpretive uniformity.
In articulating its understanding of a particularized foreseeable harm standard, the D.C. Circuit did not analyze the statutory text of the FOIA Improvement Act,45 mentioning only in a footnote that it was “apparent from the statutory text alone” that withholding requires a “particularized inquiry into . . . foreseeable harm.”46 Instead, the court relied on an examination of “detailed legislative history,” which it claimed “underscore[d]” the showing required by the statute.47 To begin, the court noted provisions from both the House and Senate committee reports identifying that Congress adopted the Act out of concerns that agencies were “overusing FOIA exemptions” that allowed but did not require withholding.48 The court then noted that Congress intended to foreclose withholding unless an agency could articulate the link between the “specified harm and specific information” to be withheld,49 without relying on “mere ‘speculative or abstract fears.’”50 The court’s discussion built on the small but growing body of caselaw from the district court sitting beneath it,51 which similarly used the legislative history to paint a picture of Congress attempting to curb the overuse of FOIA exemptions, particularly Exemption 5.52
The D.C. Circuit’s methodological approach to interpretation here was at odds with the strictly textualist FOIA jurisprudence of the Supreme Court. Recently, in Food Marketing Institute v. Argus Leader Media,53 the Supreme Court struck down the “substantial competitive harm” requirement added to FOIA’s Exemption 4 by the D.C. Circuit in 1974,54 finding that it was established “after a selective tour through the legislative history.”55 The Court was highly critical of the D.C. Circuit’s approach, noting that it could not “approve such a casual disregard of the rules of statutory interpretation” and had “repeatedly refused to alter FOIA’s plain terms on the strength only of arguments from legislative history.”56 Justice Gorsuch, joined by five other members of the Court, made it clear that where “a careful examination of the ordinary meaning and structure of the law itself . . . yields a clear answer, judges must stop.”57 This approach to FOIA, rooted in the “new textualism”58 now used broadly by the Supreme Court,59 contrasts with the approach of the D.C. Circuit here, where the court continued past text it claimed was clear to an examination of legislative history.
In this way, Reporters Committee contributes to the trend of dissonance between the Supreme Court’s preferred interpretive methodology and those of the appellate courts beneath it. While lower courts certainly do try to follow “the Supreme Court’s operative propositions of methodology” to some extent,60 and there has been a decline in the circuit courts’ reliance on legislative history, possibly in response to the Supreme Court,61 there is still a noticeable divergence. Compared to the Supreme Court’s preference for textualism, federal appellate judges have broadly preferred a median approach to interpretation coined “intentional eclecticism,”62 which can involve “grasp[ing] at whatever supports are available to reinforce a conclusion.”63 The D.C. Circuit here did just that, passing over the textualist approach prescribed by Justice Gorsuch,64 and instead opting to bolster its reading of what it determined to be unambiguous text with an analysis of the legislative history.
While lower courts are not bound by the Supreme Court’s methodological preference,65 there are benefits to interpretive uniformity that are forgone when the lower courts diverge. Uniformity renders federal law more predictable.66 A consistent “interpretive regime” alerts potential litigants and other onlookers as to “how strings of words in statutes will be read” and “what auxiliary materials might be consulted to resolve ambiguities.”67 Enhancing predictability lowers costs for courts and litigants,68 and allows Congress to legislate more cheaply and effectively against the background of a predictable interpretive regime.69 Such a regime even limits judicial discretion70 and enhances the legitimacy of a court system perceived to be further governed by the rule of law.71
Even accepting the court’s claim that the substantive outcome would have been the same in Reporters Committee under either interpretive approach, the court’s choice of methodology forgoes these benefits and contributes to the broader problems stemming from interpretive disjunction. While a savvy litigant might have expected post–Argus Leader FOIA litigation to focus heavily on the “ordinary meaning and structure” of the text, instead the D.C. Circuit gave only a cursory nod to the text in lieu of any meaningful textual analysis and focused on the legislative history. Unfortunately, this leaves litigants guessing as to what set of interpretive rules will be used in future cases and prevents them from making use of a consistent “hierarchy of . . . sources that courts at all levels will find persuasive.”72 Furthermore, since the substantive outcome from either approach could arguably have been the same, the defense of employing an alternative interpretive methodology to prevent “unconscionable decisions”73 finds no ground here. Ultimately, while the choice of interpretive rules may not have changed the substantive outcome here, the court’s embarking on a separate interpretive path without much explanation certainly raises questions of what weight courts will attribute to interpretive sources in future FOIA litigation.
In recent years, the Supreme Court has maintained its textualist predilections,74 and no less so for its interpretation of FOIA.75 In Reporters Committee, the D.C. Circuit noted that the meaning of the FOIA Improvement Act’s text alone was apparent but explained no further and instead proceeded to analyze the legislative history. The court’s failure to harmonize its approach with that of the Supreme Court further grows the methodological divide between the two courts and eschews any potential benefits of greater interpretive uniformity.