The D.C. Circuit Court has reached a decision on a major case regarding “foreseeable harm” in FOIA law, says FOIA expert Richard Huff. The case, Machado Amadis v. United States Department of State, No. 19-5088 (D.C. Cir. Aug. 24, 2020), stems from U.S. agency responses to several FOIA requests filed by Machado, and the propriety of the Office of Information and Privacy (OIP)’s withholding of that office’s appeal adjudications. The D.C. Circuit decision helps to clarify what constitutes exemption under the “foreseeable harm” standard.
The requests sought records describing Machado’s criminal history from the State Department, DEA, and FBI; records “memorializing or describing the processing of his previous FOIA Request” from the State Department, DEA, and FBI; and records and emails “about Machado” from the DEA and FBI. Machado, a citizen and resident of the Dominican Republic, filed the FOIA requests after being denied United States entry visa on the grounds that he was a “suspected drug trafficker.”
According to Huff, “in an appeal raising several issues, the court not surprisingly ruled that the ‘line attorneys’ evaluations, recommendations, discussions, and analysis which are prepared for senior-level review and decision-making on the requester’s OIP appeals are protected by the deliberative process privilege.” The deliberative process privilege is a privilege recognized under Exemption 5 of FOIA law in order to “prevent injury to the quality of agency decisions.”
Subsequent to the passage of the 2016 FOIA Improvement Act, all agency FOIA officers are required to consider if an exemption applies or if disclosure could result in “foreseeable harm” before withholding any information. While the language of the amendment applies to all exemptions, it is most frequently applicable under Exemption 5. As Huff notes, Machado Amadis is significant in that it applies the “foreseeable harm” standard “for the first time at the appellate level.” The D.C. Circuit found that OIP “reasonably foresaw harm because ‘experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decision-making process’ (NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975)).”
Further, Huff explains that the court in fact “agreed” with the requester that an agency cannot “justify withholding records under FOIA’s foreseeable harm provision by relying on ‘generalized’ assertions that disclosure ‘could chill deliberations.’” However, the D.C. Circuit found that “here, OIP specifically focused on ‘the information at issue’ in the [appeal determinations] under review, and it concluded that disclosure of that information would chill future internal discussions.’”
In future FOIA cases, requesters may argue the D.C. Circuit decision in Machado Amadis to assert that records are not exempt under Exemption 5 if an agency only “generally” asserts foreseeable harm. Ultimately, this decision helps to specify which records qualify as exempt under the “foreseeable harm” standard.
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