Freedom of Information Act Guide, May 2004
The Court of Appeals for the District of Columbia Circuit has defined a
"reverse" FOIA action as one in which the "submitter of information -- usually a
corporation or other business entity" that has supplied an agency with "data on its
policies, operations or products -- seeks to prevent the agency that collected the
information from revealing it to a third party in response to the latter's FOIA
request." (1) Such "reverse" FOIA challenges have not been strictly limited to those
situations involving pending FOIA requests, but on occasion have been brought by
parties challenging other types of prospective agency disclosures as well. (2)
An agency's decision to release the information in response to a FOIA request
ordinarily will "be grounded either in its view that none of the FOIA exemptions
applies, and thus that disclosure is mandatory, or in its belief that release is justified
in the exercise of its discretion, even though the information falls within one or more
of the statutory exemptions." (3) Typically, the submitter contends that the requested
information falls within Exemption 4 of the FOIA, (4) but submitters have also
challenged, with mixed results, the contemplated disclosure of information that they
contended was exempt under other FOIA exemptions as well. (5) (For a further
discussion of other such "reverse" FOIA cases, see Exemption 6, Privacy
Two years ago the District Court for the District of Columbia issued opinions
in two reverse FOIA cases involving claims that disclosure would be in violation of
the Privacy Act of 1974. (6) In one, the court held that the plaintiffs had "properly
asserted a cause of action" because the information at issue was protected by
Exemption 7(C) of the FOIA and therefore could not be disclosed under the Privacy
Act -- inasmuch as that statute generally prohibits public disclosure of Privacy Act-covered information that falls within a FOIA exemption. (7) In the second case -- which
was brought after the disclosure had been made -- the court held that the plaintiff
could not rely on an alleged violation of the Privacy Act to bring an independent
reverse FOIA claim against the agency. (8) (See the further discussion of this issue
under Exemption 6, Privacy Considerations, above.)
In a "reverse" FOIA suit "the party seeking to prevent a disclosure the
government itself is otherwise willing to make" assumes the "burden of justifying
nondisclosure." (9) Moreover, a challenge to an agency's disclosure decision is
reviewed in light of the "basic policy" of the FOIA to "'open agency action to the light
of public scrutiny'" and in accordance with the "narrow construction" afforded to the
FOIA's exemptions. (10) If the underlying FOIA request is subsequently withdrawn, the
basis for the court's jurisdiction will dissipate and the case will be dismissed as
The landmark case in the reverse FOIA area is Chrysler Corp. v. Brown, in
which the Supreme Court held that jurisdiction for a reverse FOIA action cannot be
based on the FOIA itself "because Congress did not design the FOIA exemptions to
be mandatory bars to disclosure" and, as a result, the FOIA "does not afford" a
submitter "any right to enjoin agency disclosure." (12) Moreover, the Supreme Court
held that jurisdiction cannot be based on the Trade Secrets Act (13) (a broadly worded
criminal statute prohibiting the unauthorized disclosure of "practically any
commercial or financial data collected by any federal employee from any source" (14)),
because it is a criminal statute that does not afford a "private right of action." (15)
Instead, the Court found that review of an agency's "decision to disclose" requested
records (16) can be brought under the Administrative Procedure Act (APA). (17)
Accordingly, reverse FOIA plaintiffs ordinarily argue that an agency's contemplated
release would violate the Trade Secrets Act and thus would "not be in accordance
with law" or would be "arbitrary and capricious" within the meaning of the APA. (18)
In Chrysler, the Supreme Court specifically did not address the "relative
ambits" of Exemption 4 and the Trade Secrets Act, nor did it determine whether the
Trade Secrets Act qualified as an Exemption 3 (19) statute. (20) Almost a decade later,
the D.C. Circuit, after repeatedly skirting these difficult issues, "definitively" resolved
them. (21) With regard to the Trade Secrets Act and Exemption 3, the D.C. Circuit held
that the Trade Secrets Act does not qualify as an Exemption 3 statute under either
of that exemption's subparts, particularly as it acts only as a prohibition against
"unauthorized" disclosures. (22) Indeed, because "agencies conceivably could control
the frequency and scope of its application through regulations adopted on the
strength of statutory withholding authorizations which do not themselves survive
the rigors of Exemption 3," the D.C. Circuit found it inappropriate to classify the
Trade Secrets Act as an Exemption 3 statute. (23) (For a further discussion of this
point, see Exemption 3, Additional Considerations, above.)
In addition, the D.C. Circuit ruled that the scope of the Trade Secrets Act is
not narrowly limited to that of its three predecessor statutes and that, instead, its
scope is "at least co-extensive with that of Exemption 4." (24) Thus, information falling
within the ambit of Exemption 4 would also fall within the scope of the Trade
Secrets Act. (25) Accordingly, in the absence of a statute or properly promulgated
regulation giving an agency authority to release the information -- which would
remove the Trade Secrets Act's disclosure prohibition (26) -- a determination that
requested material falls within Exemption 4 is tantamount to a determination that
the material cannot be released, because the Trade Secrets Act "prohibits"
disclosure. (27) To the ex-tent that information falls outside the scope of Exemption 4,
the D.C. Circuit found that there was no need to determine whether it nonetheless
still fits within the outer boundaries of the Trade Secrets Act. (28) Such a ruling was
unnecessary, the court found, because the FOIA itself would provide the necessary
authorization to release any information not falling within one of its exemptions. (29)
Standard of Review
In Chrysler Corp. v. Brown, the Supreme Court held that the Administrative
Procedure Act's predominant scope and standard of judicial review -- review on the
administrative record according to an arbitrary and capricious standard -- should
"ordinarily" apply to reverse FOIA actions. (30) Indeed, the Court of Appeals for the
District of Columbia Circuit has strongly emphasized that judicial review in reverse
FOIA cases should be based on the administrative record, with de novo review
reserved for only those cases in which an agency's administrative procedures were
"severely defective." (31)
The D.C. Circuit subsequently reaffirmed its position on the appropriate scope
of judicial review in reverse FOIA cases, holding that the district court "behaved
entirely correctly" when it rejected the argument advanced by the submitter -- that it
was entitled to de novo review because the agency's factfinding procedures were
inadequate -- and instead confined its review to an examination of the
administrative record. (32) The Court of Appeals for the Ninth Circuit, similarly
rejecting a submitter's challenge to an agency's factfinding procedures, also has held
that judicial review in a reverse FOIA suit is properly based on the administrative
Review on the administrative record is a "deferential standard of review [that]
only requires that a court examine whether the agency's decision was 'based on a
consideration of the relevant factors and whether there has been a clear error of
judgment.'" (34) Under this standard "a reviewing court does not substitute its
judgment for the judgment of the agency" and instead "simply determines whether
the agency action constitutes a clear error of judgment." (35) Significantly, "[a]n agency
is not required to prove that its predictions of the effect of disclosure are superior";
rather, it "is enough that the agency's position is as plausible as the contesting
party's position." (36) Indeed, as one court has recently held, "[t]he harm from
disclosure is a matter of speculation, and when a reviewing court finds that an
agency has supplied an equally reasonable and thorough prognosis, it is for the
agency to choose between the contesting party's prognosis and its own." (37)
Because judicial review is based on the agency's administrative record, it is
vitally important that agencies take care to develop a comprehensive one. (38) Indeed,
the Court of Appeals for the Seventh Circuit once chastised an agency for failing to
develop an adequate record in a reverse FOIA action. Although recognizing that
procedures designed to determine the confidentiality of requested records need not
be "as elaborate as a licensing," it found that the agency's one-line decision rejecting
the submitter's position "validates congressional criticisms of the excessive
casualness displayed by some agencies in resolving disputes over the application of
exemption 4." (39)
Similarly, the D.C. Circuit has remanded several reverse FOIA cases back to
the agency for development of a more complete administrative record. In one, the
D.C. Circuit ordered a remand so that it would have the benefit of "one considered
and complete statement" of the agency's position on disclosure. (40) In another, the
D.C. Circuit reversed the decision of the district court, which had permitted an
inadequate record to be supplemented in court by an agency affidavit, holding that
because the agency had failed at the administrative level to give a reason for its
refusal to withhold certain price information, it was precluded from offering a "post-hoc rationalization" for the first time in court. (41)
Likewise, the court ordered a remand after holding that an "agency's
administrative decision must stand or fall upon the reasoning advanced by the
agency therein" and that an "agency cannot gain the benefit of hindsight in
defending its decision" by advancing a new argument once the matter gets to
litigation. (42) Thus, the D.C. Circuit has emphasized that judicial review in reverse
FOIA cases must be conducted on the basis of the "administrative record compiled
by the agency in advance of litigation." (43) Of course, agency affidavits that do "no
more than summarize the administrative record" have been found to be
In another case remanded to the agency for further proceedings due to an
inadequate record, the D.C. Circuit rejected the argument proffered by the agency
that a reverse FOIA plaintiff bears the burden of proving the "non-public availability"
of information, finding that it is "far more efficient, and obviously fairer" for that
burden to be placed on the party who claims that the information is public. (45) The
D.C. Circuit also upheld the district court's requirement that the agency prepare a
document-by-document explanation for its denial of confidential treatment. (46)
Specifically, the D.C. Circuit found that the agency's burden of justifying its decision
"cannot be shirked or shifted to others simply because the decision was taken in a
reverse-FOIA rather than a direct FOIA context." (47) Moreover, it observed, in cases in
which the public availability of information is the basis for an agency's decision to
disclose, the justification of that position is "inevitably document-specific." (48)
Similarly, the District Court for the District of Columbia ordered a remand in a case in
which the agency "never did acknowledge," let alone "respond to," the submitter's
competitive harm argument. (49)
Rather than order a remand, however, that same district court, in an earlier
case, simply ruled against the agency -- even going so far as to permanently enjoin it
from releasing the requested information -- on the basis of a record that it found
insufficient under the standards of the APA. (50) Specifically, the court noted that the
agency "did not rebut any of the evidence produced" by the submitter, "did not seek
or place in the record any contrary evidence, and simply ha[d] determined" that the
evidence offered by the submitter was "insufficient or not credible." (51) This, the court
found, "is classic arbitrary and capricious action by a government agency." (52) When
the agency subsequently sought an opportunity to "remedy" those "inadequacies in
the record" by seeking a remand, the court declined to order one, reasoning that the
agency was "not entitled to a second bite of the apple just because it made a poor
decision [for,] if that were the case, administrative law would be a never ending loop
from which aggrieved parties would never receive justice." (53)
This same court -- when later presented with an administrative record that
"differ[ed] substantially" from that earlier case and which "rebutted [the submitter's]
arguments with detailed analysis" and indicated that the agency had "consulted"
experienced individuals who were "intimately familiar with [the submitter's]
arguments and evidence" -- readily upheld the agency's disclosure decision. (54) When
the submitter later sought reconsideration of the court's ruling, contending that the
court improperly sustained the agency's decision on the basis of "'secret testimony
from anonymous witnesses,'" the court dismissed those contentions as "inapposite
and inaccurate," reasoning that "none of the issues before the court concerned the
relative prestige of the experts on each party's side." (55) Rather, the court held, the
"more appropriate concern [was] whether [the agency's] factual decisions [were]
supported by substantial evidence" in the administrative record. (56) This decision
was, nevertheless, abruptly overturned on appeal for what the court of appeals
tersely characterized as the agency's "illogical application of the competitive harm
test," with no mention made of the extensive evidence in the agency's administrative
Another agency's disclosure determination was readily upheld when it was
based on an administrative record that the court found plainly demonstrated that
the agency "specifically considered" and "understood" the arguments of the
submitter and "provided reasons for rejecting them." (58) In so ruling, the court took
note of the "lengthy and thorough" administrative process, during which the agency
"repeatedly solicited and welcomed" the submitter's views on whether a FOIA
exemption applied. (59) This record demonstrated that the agency's action was not
arbitrary or capricious. (60)
Similarly, when an agency provided a submitter with "numerous opportunities
to substantiate its confidentiality claim," afforded it "vastly more than the amount of
time authorized" by its regulations, and "explain[ed] its reasons for [initially] denying
the confidentiality request," the court found that the agency had "acted
appropriately by issuing its final decision denying much of the confidentiality request
on the basis that it had not received further substantiation." (61) In so holding, the
court specifically rejected the submitter's contention that "it should have received
even more assistance" from the agency and held that the agency was "under no
obligation to segregate the documents into categories or otherwise organize the
documents for review." (62) The court also specifically noted that the agency's
acceptance of some of the submitter's claims for confidentiality in this matter
"buttresses" the conclusion that its decision was "rational." (63)
Executive Order 12,600
Administrative practice in potential reverse FOIA situations is generally
governed by an executive order issued almost two decades ago. Executive Order
12,600 requires federal agencies to establish certain predisclosure notification
procedures which will assist agencies in developing adequate administrative
records. (64) The executive order recognizes that submitters of proprietary information
have certain procedural rights and it therefore requires, with certain exceptions, (65)
that notice be given to submitters of confidential commercial information when they
mark it as such, (66) or more significantly, whenever the agency "determines that it may
be required to disclose" the requested data. (67)
When submitters are given notice under this procedure, they must be given a
reasonable period of time within which to object to disclosure of any of the
requested material. (68) As one court has emphasized, however, this consultation is
"appropriate as one step in the evaluation process, [but] is not sufficient to satisfy
[an agency's] FOIA obligations." (69) Consequently, an agency is "required to determine
for itself whether the information in question should be disclosed." (70)
If the submitter's objection is not, in fact, sustained by the agency, the
submitter must be notified in writing and given a brief explanation of the agency's
decision. (71) Such a notification must be provided a reasonable number of days prior
to a specified disclosure date, which gives the submitter an opportunity to seek
judicial relief. (72) Executive Order 12,600 mirrors the policy guidance issued by the
Office of Information and Privacy in 1982, (73) and for most federal agencies it reflects
what already had been existing practice. (74)
This executive order predates the decision of the Court of Appeals for the
District of Columbia Circuit in Critical Mass Energy Project v. NRC, (75) and thus does
not contain any procedures for notifying submitters of voluntarily provided
information in order to determine if that information is "of a kind that would
customarily not be released to the public by the person from whom it was
obtained." (76) (For a further discussion of this "customary treatment" standard, see
Exemption 4, Applying Critical Mass, above.) As a matter of sound administrative
practice, however, agencies should employ procedures analogous to those set forth
in Executive Order 12,600 when making determinations under this "customary
treatment" standard. (77) Accordingly, if an agency is uncertain of the submitter's
customary treatment of information, the submitter should be notified and given an
opportunity to provide the agency with a description of its treatment -- including any
disclosures that are customarily made and the conditions under which such
disclosures occur. (78) The agency should then make an objective determination as to
whether or not the "customary treatment" standard is satisfied. (79) Of course, in the
event a submitter challenges an agency's threshold determination under Critical
Mass concerning whether the submission is "required" or "voluntary," the agency
should be careful to include in the administrative record a full justification for its
position on that issue as well. (80)
The procedures set forth in Executive Order 12,600 do not provide a submitter
with a formal evidentiary hearing. This is entirely consistent with what has now
become well-established law -- i.e., that an agency's procedures for resolving a
submitter's claim of confidentiality are not inadequate simply because they do not
afford the submitter a right to an evidentiary hearing. (81) Agencies should be aware,
though, that confusion and litigation can result from using undocumented
conversations as a short-cut method of avoiding scrupulous adherence to these
submitter-notice procedures. (82)
Similarly, procedures in the executive order do not provide for an
administrative appeal of an adverse decision on a submitter's claim for
confidentiality. The lack of such an appeal right has not been considered by the D.C.
Circuit, but it has been addressed by the District Court for the District of Columbia,
which has flatly rejected a submitter's contention that an agency's decision to
disclose information "must" be subject to an administrative appeal. (83)
The Court of Appeals for the Fourth Circuit had an opportunity to confront this
issue in Acumenics Research & Technology v. Department of Justice. (84) There, in
analyzing Department of Justice regulations which do not provide for an
administrative appeal, the Fourth Circuit found that the procedures provided for in
the regulations -- namely, notice of the request, an opportunity to submit objections
to disclosure, careful consideration of those objections by the agency, and issuance
of a written statement describing the reasons why any objections were not
sustained -- in combination with a "face-to-face meeting that, in essence, amounted
to an opportunity to appeal [the agency's] tentative decision in favor of disclosure,"
were adequate. (85) The Fourth Circuit, however, expressly declined to render an
opinion as to whether the procedures implemented by the regulations alone would
have been adequate. (86)
Likewise, the Court of Appeals for the Ninth Circuit has upheld the adequacy
of an agency's factfinding procedures that did not provide for an administrative
appeal per se. (87) In that case, the agency's procedures provided for notice and an
opportunity to object to disclosure, for consideration of the objection by the agency,
for a written explanation as to why the objection was not sustained, and then for
another opportunity for the submitter to provide information in support of its
objection. (88) After independently reviewing the record, the Ninth Circuit found that
such procedures were adequate and accordingly held that the agency's decision to
disclose the information did not require review in a trial de novo. (89)
1. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1133 n.1 (D.C. Cir. 1987); accord
Mallinckrodt Inc. v. West, 140 F. Supp. 2d 1, 4 (D.D.C. 2000) (declaring that "[i]n a
'reverse FOIA' case, the court has jurisdiction when a party disputes an agency's
decision to release information under FOIA"), appeal dismissed voluntarily, No. 00-5330 (D.C. Cir. Dec. 12, 2000); Cortez III Serv. Corp. v. NASA, 921 F. Supp. 8, 11 (D.D.C.
1996) (holding that in reverse FOIA actions "courts have jurisdiction to hear
complaints brought by parties claiming that an agency decision to release
information adversely affects them"), appeal dismissed voluntarily, No. 96-5163 (D.C.
Cir. July 3, 1996).
2. See, e.g., AFL-CIO v. FEC, 333 F.3d 168, 172 (D.C. Cir. 2003) (submitter
organization challenged, albeit with questionable standing, agency decision to place
investigatory file, which included information on individuals, in agency's public
reading room); Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279 (D.C. Cir. 1997)
(submitter challenged agency order requiring it to publicly disclose information,
which was issued in context of federal licensing requirements); McDonnell Douglas
Corp. v. Widnall, No. 94-0091, slip op. at 13 (D.D.C. Apr. 11, 1994) (submitter
challenged agency release decision that was based upon disclosure obligation
imposed by Federal Acquisition Regulation (FAR), and McDonnell Douglas Corp. v.
Widnall, No. 92-2211, slip op. at 8 (D.D.C. Apr. 11, 1994) (same), cases consolidated on
appeal & remanded for further development of the record, 57 F.3d 1162, 1167 (D.C.
Cir. 1995); cf. Tripp v. DOD, 193 F. Supp. 2d 229, 233 (D.D.C. 2002) (plaintiff challenged
disclosure of federal job-related information concerning herself, but did so after
disclosure already had been made to the media).
3. CNA, 830 F.2d at 1134 n.1; see Alexander & Alexander Servs. v. SEC, No. 92-1112,
1993 WL 439799, at **9, 11-12 (D.D.C. Oct. 19, 1993) (agency determined that
Exemptions 4, 7(B), and 7(C) did not apply to certain requested information and
"chose not to invoke" Exemption 5 for certain other requested information), appeal
dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996).
4. 5 U.S.C. Â§ 552(b)(4) (2000).
5. See, e.g., Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1182 (8th Cir.
2000) (agreeing with submitter that Exemption 6 should have been invoked, and
ordering permanent injunction requiring agency to withhold requested information);
Bartholdi, 114 F.3d at 282 (denying the submitter's request for an injunction based on
a claim that agency's balancing of interests under Exemption 6 was "arbitrary or
capricious," and holding that "even were [the submitter] correct that its submissions
fall within Exemption 6, the [agency] is not required to withhold the information from
public disclosure," because the "FOIA's exemptions simply permit, but do not
require, an agency to withhold exempted information"); Doe v. Veneman, 230 F.
Supp. 2d 739, 747-51 (W.D. Tex. 2002) (agreeing with submitter that Exemption 6
should have been invoked, that the requested information was statutorily protected
both under Exemption 3 and the Privacy Act of 1974, 5 U.S.C. Â§ 552a (2000), and
enjoining disclosure) (appeal pending); Tripp, 193 F. Supp. 2d at 238-39 (dismissing
plaintiff's claim that the agency's prior disclosure of information about her somehow
"violated" Exemptions 5, 6, 7(A), and 7(C); concluding that with the exception of
information covered by Exemption 7(C) -- which was found inapplicable to the
information at issue -- a plaintiff could "not rely on a claim that a FOIA exemption
requires the withholding" of information, inasmuch as the FOIA merely permits
withholding but does not "require" it); AFL-CIO v. FEC, 177 F. Supp. 2d. 48, 61-63
(D.D.C. 2001) (agreeing with plaintiffs that the identities of third parties mentioned in
an agency's investigative files should have been afforded protection under
Exemption 7(C); rejecting the agency's argument that "the public interest in
disclosure outweighs the privacy interest" of the named individuals," because the
D.C. Circuit "has established a categorical rule" for the protection of such
information; and finding the agency's "refusal to apply Exemption 7(C) to bar release"
to be "arbitrary, capricious and contrary to law" (citing SafeCard Servs. v. SEC, 926
F.2d 1197 (D.C. Cir. 1991))), aff'd on other grounds, 333 F.3d 168 (D.C. Cir. 2003); Na Iwi
O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1411-13 (D. Haw. 1995) (denying plaintiff's
request to enjoin release of information that plaintiff contended was exempt
pursuant to Exemptions 3 and 6); Church Universal & Triumphant, Inc. v. United
States, No. 95-0163, slip op. at 2, 3 & n.3 (D.D.C. Feb. 8, 1995) (rejecting the submitter's
argument "that the documents in question are 'return information' that is protected
from disclosure under" Exemption 3, but sua sponte asking the agency "to consider
whether any of the materials proposed for disclosure are protected by" Exemption
6); Alexander, 1993 WL 439799, at **10-12 (agreeing with the submitter that
Exemption 7(C) should have been invoked, and ordering the agency to withhold
additional information; finding that the submitter failed to "timely provide additional
substantiation" to justify its claim that Exemption 7(B) applied; and finding that the
deliberative process privilege of Exemption 5 "belongs to the governmental agency
to invoke or not," and noting the "absence of any record support" suggesting that the
agency, "as a general matter, arbitrarily declined to invoke that privilege").
6. 5 U.S.C. Â§ 552a (2000).
7. Recticel Foam Corp. v. United States Dep't of Justice, No. 98-2523, slip op. at 9-10
(D.D.C. Jan. 31, 2002) (enjoining disclosure of FBI's criminal investigative files
pertaining to plaintiffs), appeal dismissed, No. 02-5118 (D.C. Cir. Apr. 25, 2002); see
also Doe, 230 F. Supp. 2d at 751 (recognizing claim that disclosure of the identities of
ranchers utilizing livestock-protection collars would be a "violation of" the Privacy
Act, after concluding that the "FOIA does not require release of the information").
8. Tripp, 193 F. Supp. 2d at 238-40 (rejecting plaintiff's argument that her "reverse"
FOIA claim was properly predicated on her "'reverse FOIA' request" that she
previously sent to the President and the Attorney General requesting "DOD's
compliance with its obligations" under the FOIA and the Privacy Act).
9. Martin Marietta Corp. v. Dalton, 974 F. Supp. 37, 40 n.4 (D.D.C. 1997); accord
Frazee v. United States Forest Serv., 97 F.3d 367, 371 (9th Cir. 1996) (declaring that
the "party seeking to withhold information under Exemption 4 has the burden of
proving that the information is protected from disclosure"); Occidental Petroleum
Corp. v. SEC, 873 F.2d 325, 342 (D.C. Cir. 1989) (explaining that the "statutory policy
favoring disclosure requires that the opponent of disclosure" bear the burden of
persuasion); TRIFID Corp. v. Nat'l Imagery & Mapping Agency, 10 F. Supp. 2d 1087,
1097 (E.D. Mo. 1998) (same); cf. Kan. Gas & Elec. Co. v. NRC, No. 87-2748, slip op. at 4
(D.D.C. July 2, 1993) (holding that submitter's "unsuccessful earlier attempt" to
suppress disclosure in state court "effectively restrains it" from raising same
arguments again in reverse FOIA action).
10. Martin Marietta, 974 F. Supp. at 40 (quoting United States Dep't of the Air Force
v. Rose, 425 U.S. 352, 372 (1976)); see, e.g., TRIFID, 10 F. Supp. 2d at 1097 (reviewing
the submitter's claims in light of the FOIA principle that "[i]nformation in the
government's possession is presumptively disclosable unless it is clearly exempt");
Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, No. 96-5152, 1997 WL 578960, at *1
(W.D. Ark. Feb. 5, 1997) (examining the submitter's claims in light of "the policy of the
United States government to release records to the public except in the narrowest
of exceptions," and observing that "[o]penness is a cherished aspect of our system of
government"), aff'd, 133 F.3d 1081 (8th Cir. 1998).
11. See McDonnell Douglas Corp. v. NASA, No. 95-5288, slip op. at 1 (D.C. Cir. Apr. 1,
1996) (ordering a reverse FOIA case "dismissed as moot in light of the withdrawal of
the [FOIA] request at issue"); Gen. Dynamics Corp. v. Dep't of the Air Force, No. 92-5186, slip op. at 1 (D.C. Cir. Sept. 23, 1993) (same); Gulf Oil Corp. v. Brock, 778 F.2d 834,
838 (D.C. Cir. 1985) (same); McDonnell Douglas Corp. v. NASA, 102 F. Supp. 2d 21, 24
(D.D.C.) (dismissing case after underlying FOIA request was withdrawn, which in
turn occurred after case already had been decided by D.C. Circuit and was before
district court on motion for entry of judgment), reconsideration denied, 109 F. Supp.
2d 27 (D.D.C. 2000); cf. Sterling v. United States, 798 F. Supp. 47, 48 (D.D.C. 1992)
(declaring that once a record has been released, "there are no plausible factual
grounds for a 'reverse FOIA' claim"), aff'd, No. 93-5264 (D.C. Cir. Mar. 11, 1994).
12. 441 U.S. 281, 293-94 (1979); accord Campaign for Family Farms, 200 F.3d at 1185
(concluding that an "agency has discretion to disclose information within a FOIA
exemption, unless something independent of FOIA prohibits disclosure"); Bartholdi,
114 F.3d at 281 (declaring that the "mere fact that information falls within a FOIA
exemption does not of itself bar an agency from disclosing the information"); RSR
Corp. v. Browner, 924 F. Supp. 504, 509 (S.D.N.Y. 1996) (holding that the "FOIA itself
does not provide a cause of action to a party seeking to enjoin an agency's disclosure
of information, even if the information requested falls within one of FOIA's
exemptions"), aff'd, No. 96-6186, 1997 WL 134413 (2d Cir. Mar. 26, 1997), affirmance
vacated without explanation, No. 96-6186 (2d Cir. Apr. 17, 1997); Kan. Gas, No. 87-2748, slip op. at 3 (D.D.C. July 2, 1993) (finding that any "party seeking to prevent
disclosure . . . must rely on other sources of law, independent of FOIA, to justify
enjoining disclosure"). But see AFL-CIO, 177 F. Supp. 2d at 61-63 (concluding,
without evident legal basis because of questionable standing, that due to
"categorical" nature of Exemption 7(C), a reverse FOIA plaintiff can state claim that
agency's decision not to invoke that exemption is unlawful or arbitrary and
capricious); accord Tripp, 193 F. Supp. 2d at 239 (observing with mistaken
imprecision that the district court's decision in AFL-CIO "goes only so far as to say
that FOIA prohibits the release of the limited category of [Exemption] 7(C)
13. 18 U.S.C. Â§ 1905 (2000).
14. CNA, 830 F.2d at 1140.
15. Chrysler, 441 U.S. at 316-17; accord McDonnell Douglas Corp. v. United States
Dep't of the Air Force, 215 F. Supp. 2d 200, 203-04 & n.2 (D.D.C. 2002) (citing Chrysler
and dismissing a count of the Complaint alleging a violation of the Trade Secrets
Act, "[b]ecause the [Trade Secrets Act] does not create a private right of action")
(reverse FOIA suit) (appeal pending on other grounds).
16. Id. at 318.
17. 5 U.S.C. Â§Â§ 701-06 (2000); see, e.g., CC Distribs. v. Kinzinger, No. 94-1330, 1995 WL
405445, at *2 (D.D.C. June 28, 1995) (holding that "neither FOIA nor the Trade Secrets
Act provides a cause of action to a party who challenges an agency decision to
release information . . . [but] a party may challenge the agency's decision" under
APA); Comdisco, Inc. v. GSA, 864 F. Supp. 510, 513 (E.D. Va. 1994) (finding that the
"sole recourse" of a "party seeking to prevent an agency's disclosure of records under
FOIA" is review under the APA); Atlantis Submarines Haw., Inc. v. United States
Coast Guard, No. 93-00986, slip op. at 5 (D. Haw. Jan. 28, 1994) (concluding that in a
reverse FOIA suit, "an agency's decision to disclose documents over the objection of
the submitter is reviewable only under" the APA) (denying motion for preliminary
injunction), dismissed per stipulation (D. Haw. Apr. 11, 1994); Envtl. Tech., Inc. v. EPA,
822 F. Supp. 1226, 1228 (E.D. Va. 1993) (same).
18. See, e.g., McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1164 (D.C. Cir. 1995)
(holding that the Trade Secrets Act "can be relied upon in challenging agency action
that violates its terms as 'contrary to law' within the meaning of" the APA);
Acumenics Research & Tech. v. Dep't of Justice, 843 F.2d 800, 804 (4th Cir. 1988)
(same); Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1398 (7th Cir. 1984) (same); Mallinckrodt,
140 F. Supp. 2d at 4 (declaring that "[a]lthough FOIA exemptions are normally
permissive rather than mandatory," the Trade Secrets Act "independently prohibits
the disclosure of confidential information"); Cortez, 921 F. Supp. at 11; Gen. Dynamics
Corp. v. United States Dep't of the Air Force, 822 F. Supp. 804, 806 (D.D.C. 1992),
vacated as moot, No. 92-5186 (D.C. Cir. Sept. 23, 1993); Raytheon Co. v. Dep't of the
Navy, No. 89-2481, 1989 WL 550581, at *1 (D.D.C. Dec. 22, 1989).
19. 5 U.S.C. Â§ 552(b)(3).
20. 441 U.S. at 319 n.49.
21. CNA, 830 F.2d at 1134.
22. Id. at 1141.
23. Id. at 1139-40.
24. Id. at 1151; accord Bartholdi, 114 F.3d at 281 (citing CNA and declaring: "[W]e
have held that information falling within Exemption 4 of FOIA also comes within the
Trade Secrets Act."); Alexander, 1993 WL 439799, at *9; Gen. Dynamics, 822 F. Supp.
at 806. But see McDonnell Douglas, 57 F.3d at 1165 n.2 (noting in dicta that "we
suppose it is possible that this statement [from CNA] is no longer accurate in light of
[the court's] recently more expansive interpretation of the scope of Exemption 4" in
Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc)).
25. See, e.g., Bartholdi, 114 F.3d at 281 (concluding that when information is shown
to be protected by Exemption 4, the government is generally "precluded from
releasing" it by the Trade Secrets Act); Mallinckrodt, 140 F. Supp. 2d at 4 (declaring
that "the Trade Secrets Act affirmatively prohibits the disclosure of information
covered by Exemption 4"); McDonnell Douglas Corp. v. NASA, 895 F. Supp. 319, 322
n.4 (D.D.C. 1995) (finding that because the two provisions are "co-extensive," it is
"unnecessary to perform a redundant analysis"), vacated as moot, No. 95-5288 (D.C.
Cir. Apr. 1, 1996); Chem. Waste Mgmt., Inc. v. O'Leary, No. 94-2230, 1995 WL 115894, at
*6 n.1 (noting that the "analysis under either regime is identical"); Raytheon, 1989 WL
550581, at *1.
26. See, e.g., St. Mary's Hosp., Inc. v. Harris, 604 F.2d 407, 410 (5th Cir. 1979) (finding
that a disclosure made pursuant to a Social Security Administration regulation "was
authorized by law within the meaning of the Trade Secrets Act"); RSR, 924 F. Supp.
at 512 (finding that Clean Water Act and "regulations promulgated under it permit
disclosure" of submitter's "effluent data" and so agency's contemplated disclosure of
such data is authorized by law); Jackson v. First Fed. Sav., 709 F. Supp. 887, 890-94
(E.D. Ark. 1989) (concluding that a Federal Home Loan Bank Board regulation was
"sufficient [under the Trade Secrets Act] to authorize" the release of certain bank-examination documents); see also Qwest Communications Int'l v. FCC, 229 F.3d 1172,
1173 (D.C. Cir. 2000) (finding that a provision of the Communications Act of 1934, 47
U.S.C. Â§ 220(f) (2002), "provides sufficient authorization for disclosure of trade
secrets," but nevertheless remanding for further proceedings because the agency
"failed to explain how its [disclosure order was] consistent with its policy regarding
the treatment of confidential [audit] information"); cf. McDonnell Douglas Corp. v.
NASA, 180 F.3d 303, 306 (D.C. Cir. 1999) (repeatedly noting absence of agency
reliance on "any independent legal authority to release" requested information as
basis for concluding that it was subject to Trade Secrets Act's disclosure
prohibition). See generally Bartholdi, 114 F.3d at 281-82 (rejecting challenge to
validity of disclosure regulation for failure to first exhaust issue before agency); S.
Hills Health Sys. v. Bowen, 864 F.2d 1084, 1093 (3d Cir. 1988) (rejecting challenge to
validity of disclosure regulation as unripe).
27. CNA, 830 F.2d at 1151-52; see, e.g., Pac. Architects & Eng'rs v. United States
Dep't of State, 906 F.2d 1345, 1347 (9th Cir. 1990) (holding that when release of
requested information is barred by Trade Secrets Act, agency "does not have
discretion to release it"); Envtl. Tech., 822 F. Supp. at 1228 (concluding that Trade
Secrets Act "bars disclosure of information that falls within Exemption 4"); Gen.
Dynamics, 822 F. Supp. at 806 (declaring that the Trade Secrets Act "is an
independent prohibition on the disclosure of information within its scope"); see also
FOIA Update, Vol. VI, No. 3, at 3 (discussing Trade Secrets Act bar to discretionary
disclosure under Exemption 4).
28. CNA, 830 F.2d at 1152 n.139.
29. Id.; see Frazee, 97 F.3d at 373 (emphasizing that the submitters gave "no reason
as to why the Trade Secrets Act should, in their case, provide protection from
disclosure broader than the protection provided by Exemption 4 of FOIA" and
finding that because the requested document was "not protected from disclosure
under Exemption 4," it also was "not exempt from disclosure under the Trade Secrets
Act"); Alexander, 1993 WL 439799, at *9 (declaring that "if the documents are not
deemed confidential pursuant to Exemption 4, they will not be protected under the
Trade Secrets Act").
30. 441 U.S. 281, 318 (1979); accord Campaign for Family Farms v. Glickman, 200 F.3d
1180, 1184 (8th Cir. 2000); Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, 924
F.2d 274, 277 (D.C. Cir. 1991); Gen. Dynamics Corp. v. United States Dep't of the Air
Force, 822 F. Supp. 804, 806 (D.D.C. 1992), vacated as moot, No. 92-5186 (D.C. Cir. Sept.
23, 1993); Davis Corp. v. United States, No. 87-3365, 1988 U.S. Dist. LEXIS 17611, at **5-6 (D.D.C. Jan. 19, 1988); see also McDonnell Douglas Corp. v. NASA, No. 91-3134,
transcript at 6 (D.D.C. Jan. 24, 1992) (bench order) (recognizing that court has "very
limited scope of review"), remanded, No. 92-5342 (D.C. Cir. Feb. 14, 1994).
31. Nat'l Org. for Women v. Social Sec. Admin., 736 F.2d 727, 745 (D.C. Cir. 1984) (per
curiam) (McGowan & Mikva, JJ., concurring in result); accord Campaign for Family
Farms v. Glickman, 200 F.3d at 1186 n.6; Acumenics Research & Tech. v. United
States Dep't of Justice, 843 F.2d 800, 804-05 (4th Cir. 1988); RSR Corp. v. Browner, 924
F. Supp. 504, 509 (S.D.N.Y. 1996), aff'd, No. 96-6186, 1997 WL 134413 (2d Cir. Mar. 26,
1997), affirmance vacated without explanation, No. 96-6186 (2d Cir. Apr. 17, 1997);
Comdisco, Inc. v. GSA, 864 F. Supp. 510, 513 (E.D. Va. 1994); Burnside-Ott Aviation
Training Ctr. v. United States, 617 F. Supp. 279, 282-84 (S.D. Fla. 1985); cf. Alcolac, Inc.
v. Wagoner, 610 F. Supp. 745, 749 (W.D. Mo. 1985) (upholding agency's decision to
deny claim of confidentiality as "rational"). But see Carolina Biological Supply Co. v.
USDA, No. 93CV00113, slip op. at 4 & n.2 (M.D.N.C. Aug. 2, 1993) (applying de novo
review after observing that standard of review issue presented close "judgment
call"); Artesian Indus. v. HHS, 646 F. Supp. 1004, 1005-06 (D.D.C. 1986) (flatly rejecting
position advanced by both parties that it should base its decision on agency record
according to arbitrary and capricious standard).
32. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987); see, e.g., TRIFID
Corp. v. Nat'l Imagery & Mapping Agency, 10 F. Supp. 2d 1087, 1092-96 (E.D. Mo. 1998)
(finding the agency's factfinding procedures to be adequate when the submitter
"received notice of the FOIA request and was given the opportunity to object," and
holding that challenges to the brevity of the agency's disclosure decision, the lack of
an administrative appeal right, as well as "procedural irregularities" concerning the
time period allotted for providing objections, as well as a dispute over the
appropriate decisionmaker, did not justify de novo review); RSR, 924 F. Supp. at 509
(finding the agency's factfinding procedures to be adequate when the submitter
was "promptly notified" of the FOIA request and "given an opportunity to object to
disclosure" and "to substantiate [those] objections" before the agency decision was
made); Comdisco, 864 F. Supp. at 514 (finding the agency's factfinding procedures to
be adequate when the submitter was "accorded a full and fair opportunity to state
and support its position on disclosure"); see also CC Distribs. v. Kinzinger, No. 94-1330, 1995 WL 405445, at *3 (D.D.C. June 28, 1995) (confining its review to the record
when the submitter did "not actually challenge the agency's factfinding procedures,"
but instead challenged how the agency "applied" those procedures); Chem. Waste
Mgmt., Inc. v. O'Leary, No. 94-2230, 1995 WL 115894, at *6 n.4 (D.D.C. Feb. 28, 1995)
(confining its review to the record even when the agency's factfinding itself was
found to be inadequate, because the agency's "factfinding procedures" were not
33. See Pac. Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1348
(9th Cir. 1990).
34. McDonnell Douglas Corp. v. NASA, 981 F. Supp. 12, 14 (D.D.C. 1997) (quoting
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)), rev'd on other
grounds, 180 F.3d 303 (D.C. Cir. 1999); accord Campaign for Family Farms, 200 F.3d at
1187 (likewise quoting Citizens to Preserve Overton Park); McDonnell Douglas Corp.
v. United States Dep't of the Air Force, 215 F. Supp. 2d 200, 204 (D.D.C. 2002) (same)
(reverse FOIA suit) (appeal pending on other grounds); Mallinckrodt Inc. v. West, 140
F. Supp. 2d 1, 4 (D.D.C. 2000) (same), appeal dismissed voluntarily, No. 00-5330 (D.C.
Cir. Dec. 12, 2000).
35. McDonnell Douglas, 215 F. Supp. 2d at 204; accord Bartholdi Cable Co. v. FCC,
114 F.3d 274, 279 (D.C. Cir. 1997).
36. McDonnell Douglas, 215 F. Supp. 2d at 205; accord CNA, 830 F.2d at 1155
(deferring to agency when presented with "no more than two contradictory views of
what likely would ensue upon release of [the] information").
37. McDonnell Douglas, 215 F. Supp. 2d at 205; accord CNA, 830 F.2d at 1155)
(upholding agency's release decision, and finding that agency's "explanations of
anticipated effects were certainly no less plausible than those advanced by"
38. See Reliance, 924 F.2d at 277 (insisting that the court "cannot properly perform"
its review "unless the agency has explained the reasons for its decision"); MCI
Worldcom, Inc. v. GSA, 163 F. Supp. 2d 28, 30, 36 & n.10 (D.D.C. 2001) (ruling against
the agency when it "never made any findings" regarding the confidentiality of the
requested pricing information and could "not point to anything in the administrative
record that establishes that the information is not confidential"); see also McDonnell
Douglas, 981 F. Supp. at 14 (ordering record supplemented to include "additional
comments" provided by submitter as well as agency's "lengthy response" because
submitter's comments, though untimely, were considered by agency); McDonnell
Douglas Corp. v. NASA, 895 F. Supp. 319, 323-24 (D.D.C. 1995) (ordering the record
supplemented after finding that certain documents "specifically referenced" in the
submitter's letter to the agency "were improperly omitted from the administrative
record" and holding that even though those referenced documents had not been
examined by the agency, the letter itself was, and agency "cannot pick and choose
what information in the document will be considered"), vacated as moot, No. 95-5288
(D.C. Cir. Apr. 1, 1996); FOIA Post, "Treatment of Unit Prices Under Exemption 4"
(posted 5/29/02) (emphasizing importance of conducting submitter notice each time
unit prices are requested and carefully documenting agency rationale); FOIA
Update, Vol. VIII, No. 2, at 1; FOIA Update, Vol. IV, No. 4, at 10; FOIA Update, Vol. III,
No. 3, at 3. Compare McDonnell Douglas, No. 91-3134, transcript at 6 (D.D.C. Jan. 24,
1992) (finding agency's action to be arbitrary and capricious based on insufficient
agency record), with Gen. Dynamics, 822 F. Supp. at 806 (deeming agency's action
not arbitrary and capricious based upon "lengthy and thorough" administrative
39. Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1403 (7th Cir. 1984) (remanding case for
elaboration of basis for agency's decision).
40. McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1167 (D.C. Cir. 1995)
(inexplicably deeming case to have come to court in "unusual posture" with
"confusing administrative record" stemming from "intersection" of FOIA actions and
contract award announcements).
41. AT&T Info. Sys. v. GSA, 810 F.2d 1233, 1236 (D.C. Cir. 1987).
42. Data-Prompt, Inc. v. Cisneros, No. 94-5133, slip op. at 3 (D.C. Cir. Apr. 5, 1995).
43. AT&T, 810 F.2d at 1236; see also TRIFID, 10 F. Supp. 2d at 1097 (refusing to
consider affidavits proffered by the submitter as they "were not submitted to [the
agency] during the administrative process"); CC Distribs., 1995 WL 405445, at *3
(same); Chem. Waste, 1995 WL 115894, at *6 n.4 (same); Alexander & Alexander
Servs. v. SEC, No. 92-1112, 1993 WL 439799, at *13 n.9 (D.D.C. Oct. 19, 1993) (same),
appeal dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996); Gen. Dynamics, 822 F. Supp. at
805 n.1 (same).
44. Hercules, Inc. v. Marsh, 839 F.2d 1027, 1030 (4th Cir. 1988); accord McDonnell
Douglas Corp. v. EEOC, 922 F. Supp. 235, 238 n.2 (E.D. Mo. 1996) (permitting the
submission of an agency affidavit that "helps explain the administrative record"),
appeal dismissed, No. 96-2662 (8th Cir. Aug. 29, 1996); Lykes Bros. S.S. Co. v. Peña,
No. 92-2780, slip op. at 16 (D.D.C. Sept. 2, 1993) (permitting the submission of an
agency affidavit that "merely elaborates" on the basis for the agency decision and
"provides a background for understanding the redactions"); see also, e.g., Int'l
Computaprint v. United States Dep't of Commerce, No. 87-1848, slip op. at 12 n.36
(D.D.C. Aug. 16, 1988) ("The record in this case has been supplemented with
explanatory affidavits that do not alter the focus on the administrative record.").
45. Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 342 (D.C. Cir. 1989).
46. Id. at 343-44.
47. Id. at 344.
49. Chem. Waste, 1995 WL 115894, at *5.
50. McDonnell Douglas, No. 91-3134, transcript at 5-6, 10 (D.D.C. Jan. 24, 1992).
51. Id. at 6.
52. Id.; see, e.g., McDonnell Douglas, 922 F. Supp. at 241-42 (declaring an agency to
be "arbitrary and capricious" because its "finding that the documents [at issue] were
required [to be submitted was] not supported by substantial evidence in the agency
record," and elaborating that it was "not at all clear" that the agency "even made a
factual finding on [that] issue" and "to the extent" that it "did consider the facts of
[the] case, it viewed only the facts favorable to its predetermined position"); Cortez
III Serv. Corp. v. NASA, 921 F. Supp. 8, 13 (D.D.C. 1996) (declaring an agency decision
to be "not in accordance with law" when "[n]either the administrative decision nor
the sworn affidavits submitted by the [agency] support the conclusion that [the
submitter] was required to provide" the requested information), appeal dismissed
voluntarily, No. 96-5163 (D.C. Cir. July 3, 1996). See generally Envtl. Tech., Inc. v. EPA,
822 F. Supp. 1226, 1230 (E.D. Va. 1993) (granting submitter's motion for permanent
injunction perfunctorily, without even addressing adequacy of agency record).
53. McDonnell Douglas Corp. v. NASA, 895 F. Supp. 316, 319 (D.D.C. 1995)
(permanent injunction ordered to "remain in place"), aff'd for agency failure to timely
raise argument, No. 95-5290 (D.C. Cir. Sept. 17, 1996).
54. McDonnell Douglas, 981 F. Supp. at 16.
55. McDonnell Douglas Corp. v. NASA, No. 96-2611, slip op. at 3 (D.D.C. May 1, 1998)
(quoting submitter's brief), rev'd on other grounds, 180 F.3d 303 (D.C. Cir. 1999).
56. Id. at 4.
57. McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 307 (D.C. Cir. 1999) (dismissing
agency's disclosure determination brusquely).
58. Gen. Dynamics, 822 F. Supp. at 807.
59. Id. at 806.
60. Id. at 807; see, e.g., McDonnell Douglas, 215 F. Supp. 2d at 202-03 (noting that
agency "requested comments from" submitter three times, that submitter actually
"provided comments eleven times," and that after considering those comments
agency "presented reasoned accounts" of its position and so, its "decision to disclose
was not arbitrary or capricious"); Atlantis Submarines Haw., Inc. v. United States
Coast Guard, No. 93-00986, slip op. at 10 (D. Haw. Jan. 28, 1994) (finding that the
agency "appears to have fully examined the evidence and carefully followed its own
procedures," that its decision to disclose "was conscientiously undertaken," and that
it thus was not "arbitrary and capricious") (denying motion for preliminary injunction),
dismissed per stipulation (D. Haw. Apr. 11, 1994); Source One Mgmt., Inc. v. United
States Dep't of the Interior, No. 92-Z-2101, transcript at 4 (D. Colo. Nov. 10, 1993)
(bench order) (declaring that the "Government has certainly been open in listening
to" the submitter's arguments "and has made a decision which . . . is rational and is
not an abuse of discretion and is not arbitrary and capricious"); Lykes Bros., No. 92-2780, slip op. at 15 (D.D.C. Sept. 2, 1993) (noting that the agency "provided
considerable opportunity" for the submitters to "contest the proposed disclosures,
and provided sufficient reasons on the record for rejecting" the submitters'
61. Alexander, 1993 WL 439799, at **5-6; see CC Distribs., 1995 WL 405445, at *6 n.2
(ruling that the agency's procedures were adequate when the agency gave the
submitter "adequate notice" of the existence of the FOIA request, afforded it
"numerous opportunities to explain its position," repeatedly advised it to state its
objections "with particularity," and "at least, provided [the submitter] with occasion
to make the best case it could").
62. Alexander, 1993 WL 439799, at **5 & 13 n.5.
63. Id. at *13 n.6; accord Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, No. 96-5152, 1997 WL 578960, at *3 (W.D. Ark. Feb. 5, 1997) (finding it significant that the
record revealed that the agency had been "careful in its selection of records for
release, and in fact [had] denied the release of some records"), aff'd, 133 F.3d 1081
(8th Cir. 1998); Source One, No. 92-Z-2101, transcript at 4 (D. Colo. Nov. 10, 1993)
(noting with approval that "there were certain things that [the agency had] excised").
64. 3 C.F.R. 235 (1988) (applicable to all executive branch departments and
agencies), reprinted in 5 U.S.C. Â§ 552 note (2000), and in FOIA Update, Vol. VIII, No. 2,
at 2-3; see, e.g., Department of Justice FOIA Regulations, 28 C.F.R. Â§ 16.8(a)(2) (2004)
(defining "submitter" as "any person or entity from whom the Department obtains
business information, directly or indirectly").
65. Exec. Order No. 12,600, Â§ 8 (listing six circumstances in which notice is not
necessary -- for example, when an agency determines that the requested
information should be withheld, or conversely, when it already is public or its release
is required by law); cf. FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in
Favish" (posted 4/9/04) (observing that in contrast to the notice that is routinely
afforded to submitters of business information, "as a matter of longstanding practice
born of practicality, individuals whose personal privacy interests are being
protected under the FOIA rarely are aware of that process, let alone involved in it").
66. Exec. Order No. 12,600, Â§ 3 (establishing procedures for submitter marking of
information); cf. Homeland Security Act of 2002, 6 U.S.C.A. Â§ 133 (West Supp. 2004)
(establishing protection under Exemption 3, 5 U.S.C. Â§ 552(b)(3) (2000), for "critical
infrastructure information" that is properly marked as such and is voluntarily
provided to the Department of Homeland Security); FOIA Post, "Critical
Infrastructure Information Regulations Issued by DHS" (posted 2/27/04) (advising of
potential governmentwide implementation); FOIA Post, "Homeland Security Law
Contains New Exemption 3 Statute" (posted 1/27/03) (comparing requirements of
statute to those of Executive Order 12,600).
67. Exec. Order No. 12,600, Â§ 1; see MCI Worldcom, Inc. v. GSA, 163 F. Supp. 2d 28, 37
(D.D.C. 2001) (finding that an agency acted arbitrarily and capriciously when it "failed
to follow" its submitter-notice regulations and did not afford the submitter "the
opportunity to submit any comments as to how disclosure of the [requested
information] would cause [it] substantial competitive harm"); see also FOIA Post,
"New McDonnell Douglas Opinion Aids Unit Price Decisionmaking" (posted 10/4/02);
FOIA Post, "Treatment of Unit Prices Under Exemption 4" (posted 5/29/02) (setting
forth new guidance on handling requests for unit prices, directing agencies once
again to conduct full submitter notice each time unit prices are requested, and
advising agencies to carefully evaluate any claims of competitive harm on a case-by-case basis) (superseding FOIA Update, Vol. XVIII, No. 4, at 1, and FOIA Update, Vol.
V, No. 4, at 4); FOIA Update, Vol. VIII, No. 2, at 1; FOIA Update, Vol. IV, No. 4, at 10;
FOIA Update, Vol. III, No. 3, at 3; cf. Forest Guardians v. United States Forest Serv.,
No. 99-615, slip op. at 57 (D.N.M. Jan. 29, 2001) (finding that although the agency
"failed to undertake procedures required by its own regulations, to engage in
sufficient fact finding[,] or to utilize a rational and consistent decision-making
process," the court could not "agree" that these facts rendered the agency's conduct
"contrary to law" or arbitrary and capricious, because there were "insufficient
concrete and uncontested facts" to make a determination on the applicability of any
FOIA exemption) (case ultimately settled by the parties and agency agreed to
provide notice to affected submitters). But cf. McDonnell Douglas Corp. v. NASA, 895
F. Supp. 319, 323 (D.D.C. 1995) (finding that an agency "simply does not have the
authority to require [the submitter] to justify again and again why information, the
disclosure of which has been enjoined by a federal court, should continue to be
enjoined," and holding that the agency must instead take steps to "have the existing
injunction modified or dissolved"), vacated as moot, No. 95-5288 (D.C. Cir. Apr. 1,
1996). See generally OSHA Data/C.I.H., Inc. v. United States Dep't of Labor, 220 F.3d
153, 168 (3d Cir. 2000) (concluding that estimated $1.7 million cost of notifying more
than 80,000 submitters was properly charged to requester seeking documents for
68. Exec. Order No. 12,600, Â§ 4; see McDonnell Douglas, 895 F. Supp. at 328 (holding
that submitter is "not denied due process of law just because [agency] regulations
do not allow cumulative opportunities to submit justifications and to refute agency
69. Lee v. FDIC, 923 F. Supp. 451, 455 (S.D.N.Y. 1996).
70. Id.; accord Exec. Order No. 12,600, Â§ 5 (specifically contemplating that after
affording notice to submitter agency makes ultimate determination concerning
release); see also Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767 (D.C.
Cir. 1974) (concluding that in justifying nondisclosure, the submitter's treatment of
the information is not "the only relevant inquiry," and finding that agency must be
satisfied that harms underlying exemption are likely to occur).
71. Exec. Order No. 12,600, Â§ 5; see TRIFID Corp. v. Nat'l Imagery & Mapping
Agency, 10 F. Supp. 2d 1087, 1093 (E.D. Mo. 1998) (An "agency's explanation of its
decision may be 'curt,'" provided that it "indicate[s] the determinative reason for the
72. Exec. Order No. 12,600, Â§ 5.
73. See FOIA Update, Vol. III, No. 3, at 3 ("OIP Guidance: Submitters' Rights").
74. See FOIA Update, Vol. IV, No. 4, at 1 (describing agency submitter notice
practice); see also FOIA Update, Vol. VIII, No. 2, at 1 (same).
75. 975 F.2d 871 (D.C. Cir. 1992) (en banc).
76. Id. at 879.
77. See FOIA Update, Vol. Vol. XIV, No. 2, at 6-7 ("Exemption 4 Under Critical Mass:
Step-By-Step Decisionmaking"); see also id. at 3-5 ("OIP Guidance: The Critical Mass
Distinction Under Exemption 4").
78. See id. at 7; accord Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin.,
244 F.3d 144, 153 (D.C. Cir. 2001) (directing the district court, on remand, to review the
submitters' declarations "and any other relevant responses" that they might provide
to establish their customary treatment of the requested information).
79. See FOIA Update, Vol. XIV, No. 2, at 7.
80. See McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 241-42 (E.D. Mo. 1996)
(concluding that the agency's finding that the submission was required was "not
supported by substantial evidence," and consequently finding the agency decision to
be "contrary to the law"), appeal dismissed, No. 96-2662 (8th Cir. Aug. 29, 1996);
Cortez III Serv. Corp. v. NASA, 921 F. Supp. 8, 13 (D.D.C. 1996) (explaining that
agency's failure to provide "support" for its conclusion that submission was required
rendered its decision "not in accordance with law"), appeal dismissed voluntarily,
No. 96-5163 (D.C. Cir. July 3, 1996).
81. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1159 (D.C. Cir. 1987); Nat'l Org. for
Women v. Social Sec. Admin., 736 F.2d 727, 746 (D.C. Cir. 1984) (per curiam)
(McGowan & Mikva, JJ., concurring in result); McDonnell Douglas Corp. v. NASA, No.
96-2611, slip op. at 4 (D.D.C. May 1, 1998), rev'd on other grounds, 180 F.3d 303 (D.C.
82. See Fed. Elec. Corp. v. Carlucci, 687 F. Supp. 1, 5 (D.D.C. 1988) (involving
disappointed bidder who brought action seeking to have solicitation declared void
after agency had released its cost data, in absence of submitter objections to
release, which submitter claimed was due to "apparent misunderstanding as to
what was actually going to be released"), grant of summary judgment to agency
aff'd, 866 F.2d 1530 (D.C. Cir. 1989).
83. Lykes Bros. S.S. Co. v. Peña, No. 92-2780, slip op. at 6 (D.D.C. Sept. 2, 1993); see
also TRIFID, 10 F. Supp. 2d at 1093-94 (noting the lack of an appeal provision in the
executive order, and concluding that the "absence of an appeal mechanism and a
formal mechanism to provide additional information [did] not render [the agency's]
84. 843 F.2d 800, 805 (4th Cir. 1988).
86. Id. at 805 n.4.
87. See Pac. Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1348
(9th Cir. 1990).
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