III. Selective Disclosure Prohibited

If an agency has previously disclosed information to a member of the public, but is now attempting to withhold it from you, you should argue that its prior disclosure waives the agency’s right to withhold it from another member of the public. As one court held, “FOIA does not permit selective disclosure of information only to certain parties, and [ ] once the information is disclosed to [a requester], it must also be made available to all members of the public who request it.”³⁴

This is a particularly strong argument where it appears that the agency is acting unfairly by giving a particular requester preferential treatment. “Preferential treatment occurs when an agency releases a document to one private party and then refuses to release the document to another private party.”³⁵

In one case, where an agency claimed that a lobbying firm may have received a document through a “leak,” a court held that it could not continue to withhold the document from an environmental group under Exemption 5 because the agency’s actions indicated that it had given “preferential treatment” to the firm.³⁶ The court found evidence of such “preferential treatment” in the fact that the agency did not take any steps to limit the receiving company’s further dissemination of the documents.³⁷