I. Public Domain Standard
A common test for waiver applied by agencies and courts is the “public domain” standard formulated by the U.S. Court of Appeals for the District of Columbia Circuit.3 Under this test, an agency may not withhold information that would otherwise be exempt under FOIA “if it was previously ‘disclosed and preserved in a permanent public record.’”4 The requester has “the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.”5
3 Chesapeake Bay Found., Inc. v. U.S. Army Corps of Engineers, 722 F.Supp.2d 66, 72 (D.D.C. 2010) (citing Cottone, 193 F.3d at 554).
4 Chesapeake Bay Found., Inc., 722 F.Supp.2d at 72 (quoting Cottone, 193 F.3d at 554).
5 Chesapeake Bay Found., Inc., 722 F.Supp.2d at 72 (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
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