Update: On Aug. 21, 2020, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Machado Amadis v. Department of Justice, affirming the district court’s decision in favor of the federal agencies. The Court’s decision only briefly touched on the Freedom of Information Act’s foreseeable harm standard, holding that, in this specific case, the Department of Justice was justified in withholding records under the provision.
The Reporters Committee and 36 media organizations filed a friend-of-the-court brief in the U.S. Court of Appeals for the D.C. Circuit in Machado Amadis v. Department of Justice, in support of plaintiff Machado Amadis. The case involves a denied FOIA request and may be the first federal court of appeals to opine on the foreseeable harm standard, introduced into FOIA in 2016. The brief outlines Congress’s concern with increasing government secrecy, particularly with overuse of the deliberative process privilege. The brief argues that the legislative history, in light of this concern, makes clear that the foreseeable harm standard is a new requirement that agencies must meet when making any discretionary FOIA withholdings. Furthermore, any withholdings must show that disclosure will harm the interested protected by the cited exemption on a document-by-document basis. Finally, the brief argues that in the context of the deliberative harm privilege, the foreseeable harm standard requires more than just reciting the exemption—the agency has to explain how the withheld records would cause agency officials to be chilled from speaking in the future.