I. Review of Agency Decision to Release

As in Exemption 4 cases, cases may be litigated under Exemption 9 in the form of “reverse-FOIA suits,” in which a third party opposing release of the information at issue — usually the original submitter of the information — sues the agency to prevent its release. In such suits, the submitter challenges an agency’s decision to release records because the submitter believes that an agency seeks to improperly exercise its discretion to release records that fall within one or more exemptions.⁸

Because a requester can intervene in a reverse-FOIA suit as a defendant, you should understand the standard by which the court will evaluate the agency’s decision to release.⁹ (Legal representation should strongly be considered before intervening in any pending lawsuit). A court reviewing the agency’s decision will determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”¹⁰

In one instructive reverse-FOIA suit, the U.S. Court of Appeals for the Fifth Circuit examined whether the Federal Power Commission abused its discretion in deciding to disclose gas reserves data that fell within the scope of Exemptions 9 and 4.¹¹ The court explained that in making this determination, it would examine “whether the Commission abused its discretion in balancing the public and private interests” in disclosure.¹²

Because the Commission had previously granted confidentiality with respect to similar information, issued a regulation stating that trade secret information would not be made public, and stated — on the form requesting the information — that it would generally be kept confidential, the court “engage[d] in a searching inquiry” of the agency’s decision.¹³ Therefore, if you ever find yourself a party to such litigation, it may be helpful to point to evidence in similar sources demonstrating that the agency has previously released such information.

The Fifth Circuit first found the Commission gave an overly brief explanation of why the public interest in release outweighed any financial harm to the parties.¹⁴ The Commission found a particularly high public interest in release because it requested the data as part of an investigation into the disparities in reserve figures reported by two sources.¹⁵ In rejecting the producers’ objections to release, the Commission stated that “[t]he regulatory process is a bond of consumer protection and the regulations and rates cannot proceed satisfactorily without full disclosure of the facts upon which the rates are to be determined.”¹⁶

However, the court held that this statement was too brief to justify a finding that disclosure would “serve[] a legitimate regulatory function.”¹⁷ The court then applied three considerations in determining whether the agency abused its discretion in conducting the balancing test, and found all three factors to weigh in favor of a finding of an abuse.¹⁸

The first consideration is “whether disclosure of this type of detailed information will significantly aid the Commission in fulfilling its functions.”¹⁹ In that case, the court noted that it was questionable whether natural gas consumers — unlike other energy producers — would be able to “reasonably avail themselves” of the data for use in Commission proceedings.²⁰ The Commission inadequately demonstrated the existence of outside consultants who would be available to assist consumers in using the data.²¹ As a result, you could try to show that members of the public would be able to use the information at issue — either alone or with available expert assistance — in their dealings with the agency.

Second, the agency must “consider not only the harm done to the producers by releasing this information but the harm to the public generally.”²² The companies opposing release successfully argued that release of the information would curtail gas exploration, as the opportunity to gain exclusive knowledge of potential gas reserves was a major incentive for such exploration, and the agency failed to address this potential harm .²³ Therefore, you could also challenge any alleged harms to the public that would result from release of the information, and explain how its release would instead benefit the public.

The third consideration — the “most important[],” according to the court in this reverse-FOIA case — is “whether there are alternatives to full disclosure that will provide consumers with adequate knowledge to fully participate in the Commission’s proceedings but at the same time protect the interests of the producers.”²⁴ As the Commission had not discussed whether any such alternatives existed, the court found this consideration weighed against the agency’s determination as well.²⁵ In applying this consideration, you should argue that no alternatives to the information at issue exist that would allow the public to participate as fully in relevant agency proceedings.