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FOIA Update: Supreme Court Lets Critical Mass Stand

FOIA Update
Vol. XIV, No. 2

Supreme Court Lets Critical Mass Stand

The United States Supreme Court has declined to review the D.C. Circuit Court of Appeals' en banc decision in the Critical Mass Energy Project case, which allows that decision to stand as the new leading decision under Exemption 4 of the Freedom of Information Act.

On March 22, the Supreme Court denied the requester's petition for certiorari in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1579 (1993), an Exemption 4 case in which the D.C. Circuit confined its previous leading decision under that exemption, National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

In Critical Mass, the D.C. Circuit limited National Parks' applicability to cases involving "required" submissions of information, while establishing a new standard of "categorical" protection for any information that is "voluntarily" submitted to an agency: Such information falls within Exemption 4 under the Critical Mass analysis if it is not "customarily" disclosed to the public by the submitter. See FOIA Update, Fall 1992, at 1-2.

With the Supreme Court's decision not to review the D.C. Circuit's new analytical approach to Exemption 4 in Critical Mass, it now stands as the Exemption 4 precedent most directly applicable to determinations made under that exemption. Though it remains to be seen whether other circuit courts will follow the D.C. Circuit's path in Critical Mass as they did previously with National Parks, the impact of Critical Mass is heightened by the fact that the D.C. Circuit is the circuit of "universal venue" under the FOIA -- which means that any FOIA lawsuit can be filed there and adjudicated under its case law. Most significantly, this is generally so as well for "reverse FOIA" lawsuits filed to enjoin agency disclosure of business information.

Pivotal Question

Under Critical Mass, a pivotal question governing the determination of Exemption 4 applicability is posed by the D.C. Circuit's new distinction between "voluntary" and "required" submissions of information. Only where information has been "voluntarily" submitted to an agency will the broad new "categorical" protection of Critical Mass apply. Where an information submission is found to have been "required," the stricter Exemption 4 standards set forth in National Parks will continue to apply.

This distinction is addressed in policy guidance set forth at pages 3-5 of this issue of FOIA Update, in which agencies are advised to focus on the nature of each information submission itself in determining "voluntariness" under Critical Mass. This guidance emphasizes that the mere voluntariness of a submitter's participation in an administrative process -- such as an agency's contracting process -- is insufficient to make an information submission "voluntary" under Critical Mass. Rather, it explains, the "voluntariness" of an information submission should be determined by whether the agency exercised its authority to require such a submission of the participants in its administrative process.

This guidance on Critical Mass's pivotal distinction has been prepared in coordination with the Office of Federal Procurement Policy (an arm of the Office of Management and Budget), which sets governmentwide policy for the federal procurement process under the Federal Acquisition Regulation. Under it, information obtained by an agency pursuant to the requirements of the federal procurement process will continue to be treated under Exemption 4 according to the traditional standards of the National Parks test, which focus primarily on case-by-case considerations of "competitive harm." As the guidance points out, most information considered by agencies under Exemption 4 will not qualify for broader, "categorical" protection under Critical Mass.

Additional guidance on the making of Exemption 4 determinations in light of Critical Mass is contained in the "FOIA Counselor" discussion at pages 6-7 of this FOIA Update issue, which traces the steps to Exemption 4 decisionmaking under the Critical Mass and National Parks tests.

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Updated August 13, 2014