Aug. 7, 2019 – The NewsGuild-CWA joined the Reporters Committee for Freedom of the Press and two dozen other organizations filing a “friend of the court” brief in the case of Amadis v. Department of State, a federal Freedom of Information Act case on appeal to the DC Circuit. The case presents the first opportunity for the DC Circuit to address FOIA’s new “foreseeable harm” standard, which was added as part of the FOIA Improvement Act of 2016.
According to the Reporters Committee, under the foreseeable harm standard, an agency can only withhold records if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” To date, only a handful of district court decisions have addressed the new provision, in part because it only applies to requests submitted after June 30, 2016.
“As most FOIA litigation occurs within the DC Circuit, we think it is especially important to provide the Court with information about the legislative history and purpose of the foreseeable harm standard so that its interpretation of that new standard promotes transparency,” the groups wrote.
“To that end, our brief goes though the legislative history of the foreseeable harm standard, noting that Congress was particularly concerned with overuse of Exemption 5. It then describes what we think are some important features of the standard, including that (1) it is an objective test subject to de novo review, (2) that (contrary to what DOJ has previously argued) the new standard does real, meaningful work, and requires an additional showing by agencies, and (3) that agencies must provide individualized justifications that are specific to each record, not merely recite speculative or generic claims of potential harm.”