EPIC & EFF to D.C. Circuit: Agencies Cannot Withhold Contractor Names as “Commercial” Info Under the FOIA

March 30, 2022

EPIC and the Electronic Frontier Foundation (“EFF”) have filed an amicus brief in a D.C. Circuit case explaining the importance of contractor identities to surveillance oversight and other transparency work related to government use of technology. The case, Citizens for Responsibility and Ethics in Washington v. Department of Justice, concerns the Federal Bureau of Prison’s refusal to disclose the names and identifying information of companies that supply pentobarbital for lethal injections. The district court upheld the withholding, agreeing with the Bureau that the names of the contractors are “commercial” information because disclosure might result in bad publicity and loss of business for the companies. EPIC and EFF explain that federal agencies increasingly rely on private companies to develop decision-making, surveillance, and identity verification tools that impact individuals’ fundamental rights. EPIC and EFF argue that a contractor’s relationship to these government activities is information about the government, not “commercial” information. The amicus describe how EPIC and EFF use contractor names to link information about vendors across jurisdictions and other sources, track the proliferation of a certain company’s technology, and find agencies using technologies developed by companies with bad privacy reputations. EPIC uses the FOIA to track government uses of AI and surveillance technologies, sues federal agencies when they withhold information of public interest, and files amicus briefs in important cases interpreting the FOIA.

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