Citizens for Responsibility and Ethics in Washington (CREW) v. Department of Justice

Question Presented

Whether the name of a contractor is “commercial” information exempt from disclosure under the Freedom of Information Act.

Background

The Freedom of Information Act (also known as “the FOIA”) generally requires federal agencies disclose documents to requestors except when the information falls within a narrow set of exceptions. Exemption 4 allows agencies to withhold “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

Agencies routinely contract with private companies for automated decision-making software, surveillance equipment, and other technology. Government’s use of this technology often implicates fundamental rights. Yet, agencies often cite Exemption 4 as a reason to withhold information about this technology, claiming that the information is “commercial” and “confidential.”

The D.C. Circuit used to require agencies demonstrate that disclosure of information withheld as “confidential” under Exemption 4 result in substantial competitive harm. A few years ago, in a case called Food Marketing Institute v. Argus Leader Media, the Supreme Court overturned the D.C. Circuit rule, instead allowing agencies to withhold information as “confidential” if the company generally keeps the information secret and the agency agreed to keep the information confidential. The case did not decide the meaning of the term “commercial.”

The Case

Citizens for Responsibility and Ethics in Washington (also known as “CREW”) used the FOIA to request several types of documents from the Federal Bureau of Prisons related to its procurement of pentobarbital, a drug used in lethal injections. The agency withheld key information from the disclosed contracts, including the names of contractors and other information that would help identity the contractors. A district court upheld these withholdings, finding that the information was “commercial” because disclosure might result in loss of business for the company. CREW appealed to the D.C. Circuit.

EPIC’s Interest

EPIC uses the FOIA and state open records acts to obtain information about government programs that use technology in ways that implicate fundamental rights. The names of contractors are often key to this work. Knowing the name of the contractor allows EPIC to link information from the FOIA request to outside information about the company and their products. EPIC also tracks use of certain companies’ technologies across government agencies and checks whether agencies are using technology from companies with bad reputations.

Legal Documents