Foreseeable Harm Richard Huff

1. Foreseeable Harm • Richard Huff October 23, 2019 14th Annual FOIAXpress User Conference & Technology Summit

2. Foreseeable Harm History • Attorney General Ramsey Clark: “Disclosures are the general rule, not the exception,” 1967 • Attorney General Griffin Bell: “Demonstrable harm,” 1977 • Attorney General Janet Reno: “Reasonably foresees that disclosure would be harmful to an interest protected” by an exemption, 1993 • Attorney General Eric Holder: same, 2009

3. FOIA Improvement Act of 2016 • Agencies “shall withhold information” under the FOIA “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law” • Agencies shall “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible”

4. OIP Guidance on Foreseeable Harm • 2009 Guidance listed only Exemptions 1, 3, 4, 6, and 7(C) as not eligible for discretionary disclosure • DOJ Guide to the FOIA, Waiver and Discretionary Disclosure Section (Updated August 28, 2019) doesn’t mention FOIA Improvement Act of 2016 and notes only Exemptions 4, 6 and 7(C) as inappropriate for discretionary disclosure

5. Cases Interpreting FOIA Improvement Act of 2016 Preliminary Matters Cause of Action v. Department of the Army, No. 16-1020 (D.D.C. Sept. 29, 2019) -- ruling that even though parties had briefed “foreseeable harm,” because the request was made before the effective date of that provision, June 30, 2016, the court “has no occasion to address the effect of those amendments on the standards for withholding under FOIA.”

6. Cases Interpreting FOIA Improvement Act of 2016 Preliminary Matters Rosenberg v. DOD, 342 F. Supp. 3d 62 (D.D.C. 2018) – “the court does not read the statutory ‘foreseeable harm’ requirement to go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings. A categorical approach will do.”

7. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Judicial Watch, Inc. v. Department of Commerce, 375 F. Supp. 3d 93 (D.D.C. 2019) – rejecting “boilerplate statements” concerning “chilling effect” and that “these frank deliberations could cause confusion if incorrect or misrepresented climate information remained in the public sphere.”

8. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Natural Res. Def. Council v. EPA, No. 17-5929, 2019 WL 3338266 (S.D.N.Y. July 25, 2019) – rejecting “generic, across-the-board articulations of harm” that disclosure “would discourage open and frank discussion and have a chilling effect on the Agency’s decision-making processes.”

9. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Judicial Watch v. DOJ, No. 17-832 (D.D.C. Sept. 24, 2019) – rejecting “nearly identical boilerplate statements” for deliberative process and attorney- work product records “that disclosure “would undermine the ability of [DOJ] staff to freely engage in the candid ‘give and take’ and forthright collaboration which is critical to the eventual development of well- reasoned and accurate final documents.”

10. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Machado Amadis v. Department of Justice, No. 16-2230, 2019 WL 2211120 (D.D.C. May 22, 2019) (appeal pending) -- ruling that disclosure would cause “a chilling effect on [OIP’s] attorneys, who would no longer feel able to discuss their idea, strategies, and recommendations in [the deliberative process records] freely,” and tersely concluding that “[t]his is among the harms that Exemption 5 seeks to prevent.”

11. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Natural Res. Def. Council v. EPA, No. 17-5929, subsequent decision (S.D.N. Y. Aug. 30, 2019) -- “provided context” that process was still ongoing premature and disclosure would mislead the public, that certain identified drafts do not reflect the agency’s final decision, and that staff candor would be chilled because certain of the recommendations were not merely candid, but “blunt.”

12. Cases Interpreting FOIA Improvement Act of 2016 Finding Agency Response Insufficient Natural Res. Def. Council v. EPA, No. 18-11227 (S.D.N.Y. Aug. 22, 2019) -- protecting evolving computer program; finding foreseeable harm where agency’s extensive discussion illustrated how disclosure of the program would chill agency employees and prematurely disclose a continuing decision making process in areas where the agency’s final product did not incorporate all of it’s aspects.

13. Department of Labor Office of Inspector General FOIA Improvement Act of 2016 Suggested Application • Unified Investigative Solution: Consolidation of 4 legacy, stove-piped systems and numerous manual processes • New Investigative Management Information System (NIMIS) currently in UAT – less than 9 months • Hosted in AINS FedRAMP Cloud – eliminating IT infrastructure & maintenance burden • Integrated Evidence Tracking replaced Tracker Product Sensitivity Age of the documents Deliberative process (or litigation involved in attorney-work product) is still ongoing Drafts and recommendations would be misleading because they do not reflect the agency’s final determination Apparently level of personnel is irrelevant

14. Richard Huff FOIA Instructor