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Reporters Committee asks U.S. Supreme Court to ensure government contractors can’t hide behind FOIA exemptions

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  1. Freedom of Information
The Reporters Committee for Freedom of the Press has filed a friend-of-the-court brief asking the U.S. Supreme Court to review…

The Reporters Committee for Freedom of the Press has filed a friend-of-the-court brief asking the U.S. Supreme Court to review an appeals court decision that could allow many records detailing the interactions between government and third-party contractors to be shielded from public disclosure under the federal Freedom of Information Act .

The Reporters Committee specifically asks the Court to reject a decision of the U.S. Court of Appeals in Richmond, Va., (4th Cir.) that interpreted FOIA Exemption 5 – which allows the government to withhold privileged internal agency records – to be broadly applied to a government contractor that can show it has a “common interest” with the government in a particular matter. The first step in any Exemption 5 analysis under FOIA requires that the records at issue be inter- or intra-agency records, a standard that generally cannot be met by a third party, the petition noted.

“Under the Fourth Circuit’s rationale, private third parties that seek a government benefit would be able to claim they are akin to an agency employee and thus shield their documents from disclosure under FOIA,” the brief argued.

“Congress was very clear in its intent to limit Exemption 5 to internal government records that could be considered privileged in litigation,” said Reporters Committee Executive Director Bruce D. Brown. “Allowing the government to broadly withhold records documenting its interactions with third parties creates a dangerous vehicle for government contractors to hide information from the public. In addition to being in conflict with both legislative and judicial precedent, it would become more difficult for the press and, by extension the public, to engage in effective oversight of contractors’ operations.”

The case, American Management Services LLC, d/b/a Pinnacle v. Department of the Army, involves a dispute between contractors who had been managing housing facilities at various U.S. Army bases. When Pinnacle filed a FOIA request for documents between the other firm and the Army, the Army invoked Exemption 5 for withholding the information. The Fourth Circuit held that the records could be withheld under Exemption 5 because the government and the firm shared a “common interest” in a litigation the firm was independently pursuing.

“The Fourth Circuit’s interpretation of Exemption 5 would therefore make it more difficult for FOIA requesters to access records concerning private third parties doing business with government,” the brief stated.

About the Reporters Committee

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Brief: American Management Services, Inc., d/b/a Pinnacle v. Dep’t of the Army

· Federal Open Government Guide: 5. Internal agency memos