PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor,
Petition for writ of certiorari to the United States Court of
Appeals for the First Circuit denied.
L.Ed.2d 413] JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting from denial of the petition for writ of
Freedom of Information Act (FOIA), 5 U.S.C. § 552,
requires federal agencies to " make [agency] records
promptly available to any person" who requests them,
unless the information that they contain falls under a
specifically enumerated exemption. § §
552(a)(3)(A), (b). One of those exemptions, Exemption 4,
authorizes agencies to withhold documents that contain "
trade secrets and commercial or financial information
obtained from a person and privileged or confidential."
long maintained that " FOIA reflects a general
philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language."
United States DOD v. FLRA, 510 U.S. 487,
494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (internal
quotation marks omitted). And we have rejected
interpretations of other FOIA exemptions that diverge from
the text. E.g., Milner v. Dep't of
the Navy, 562 U.S. 562, 573, 131 S.Ct. 1259, 179 L.Ed.2d
268 (2011) (rejecting interpretation due to its " patent
flaw: It is disconnected from Exemption 2's text" ).
we often have considered other FOIA exemptions, we have never
interpreted Exemption 4's exception for " trade
secrets and commercial or financial information obtained from
a person and privileged or confidential." §
552(b)(4). In the meantime, Courts of Appeals have declined
to interpret the word " confidential" in Exemption
4 according to its ordinary meaning. Here, for instance, the
Court of Appeals for the First Circuit upheld the Department
of Health and Human Services' refusal to disclose Planned
Parenthood's Manual of Medical Standards and Guidelines,
a document that the Government had required Planned
Parenthood to submit in connection with a non-competitive
grant application. See N.H. Right to Life v.
United States HHS, 778 F.3d 43, 49-52 (2015). The
First Circuit based this conclusion not on the ordinary
meaning of the term " confidential," but on
conjectures as to whether disclosure could harm Planned
Parenthood's competitive position. The court deemed the
manual confidential because " [a] potential future
competitor could take advantage of the institutional
knowledge contained in the Manual" to [136 S.Ct. 384]
compete with Planned Parenthood at some later date.
Id., at 51.
decision below reflects a wider development. Courts of
Appeals have embraced varying versions of a convoluted test
that rests on judicial speculation about whether disclosure
will cause competitive harm to the entity from which the
information was obtained. In 1974, the Court of Appeals for
the D. C. Circuit decided National Parks &
Conservation Asso. v. Morton, 498 F.2d 765,
which construed the word " confidential" in
Exemption 4 by looking to legislative history and the "
legislative purpose which underlies the exemption."
Id., at 767; see id., at 766-770. That
court determined that commercial information is "
confidential" if, inter alia, disclosure would
" cause substantial harm to the competitive position of
the person from whom the information was obtained."
Id., at 770. The D. C. Circuit later elaborated that
there was no need to " show actual competitive
harm," and that " [a]ctual competition and the
likelihood of substantial competitive injury" sufficed.
Public Citizen Health Research Group v.
FDA, 704 F.2d 1280, 1291, 227 U.S. App.D.C. 151
(1983) (internal quotation marks omitted). Seven other
Circuits adopted the National Parks test. See
Critical Mass. Energy Project v. NRC, 975
F.2d 871, 876, 298 U.S. App.D.C. 8 (CADC 1992) (en banc)
1992, the D. C. Circuit granted rehearing en banc to
reconsider National Parks, after two judges of that
court described [193 L.Ed.2d 414] its test as "
fabricated, out of whole cloth." Critical Mass,
975 F.2d at 875 (internal quotation marks omitted). The full
court declined to overrule it entirely. Id., at
876-877, 880. Instead, the court " confine[d]" the
National Parks test " to information that
persons are required to provide the Government," and
adopted a different test for voluntarily provided
information. 975 F.2d at 872, 880.
then, every Court of Appeals to consider Exemption 4 has
interpreted it by parsing National Parks '
nebulous language about " actual competition" and a
" substantial likelihood of competitive harm." The
courts' reliance on National Parks to determine
whether information is " confidential" commercial
information has produced confusion. Courts cannot seem to
agree on what kind of " actual competition" must be
shown. Some require factual justifications and market
definitions to show that there is " actual competition
in the relevant market" in which the entity opposing the
disclosure of its information operates. Watkins v.
Bureau of Customs and Border Protection, 643 F.3d
1189, 1196 (CA9 2011). Others, including the First Circuit
below, take an expansive view of what the relevant market is,
and do not require any connection between that market and the
context in which an entity supplied the requested
information. 778 F.3d, at 51.
of Appeals also disagree over what a " substantial
likelihood of competitive harm" means. In some courts,
there must be evidence that the entity whose information is
being disclosed would likely suffer some defined competitive
harm (like lost market share) if competitors used the
information. E.g., McDonnell Douglas Corp.
v. Department of Air Force, 375 F.3d 1182, 1187, 363
U.S. App.D.C. 42 (CADC 2004); GC Micro Corp. v.
Defense Logistics Agency, 33 F.3d 1109, 1115 (CA9
1994). But the First Circuit here accepted that
competitors' possible use of the information alone
constitutes harm--even if this would not likely result in any
negative consequences for the entity whose information was
disclosed. See 778 F.3d, at 51. Similarly, some courts hold
that competitive harm exists if a competitor could use the
disclosed information to publicly embarrass the originator of
the information. E.g., Nadler v. [136 S.Ct.
385] FDIC, 92 F.3d 93, 96-97 (CA2 1996). Others hold
that this can never be competitive harm. E.g.,
United Techs. Corp., Pratt & Whitney Div. v.
United States DOD, 601 F.3d 557, 563-564 (CADC
2010). We should not leave the meaning of Exemption 4 up to
an atextual test that has different limits in different
failing to address the Courts of Appeals' abrogation of
Exemption 4's text, we have also created a disconcerting
anomaly. We have interpreted FOIA Exemption 5 -- applicable
to agency memoranda that " would not be available by law
to a party . . . in litigation with the agency," §
552(b)(5) -- to encompass a " privilege for confidential
commercial information" created by the Government.
Federal Open Market Comm. v. Merrill, 443
U.S. 340, 360, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979). Yet, in
that context, we defined confidential commercial information
to mean information " generated in the process of
awarding a contract," which " would in fact be
privileged in civil discovery." Id., at 361, 99
S.Ct. 2800, 61 L.Ed.2d 587. It is odd for one definition of
confidential commercial information to apply to
Government-generated records and for a different test to
apply if nongovernmental actors created them. It is
especially strange given our recognition that the only
difference between confidential commercial information
covered by Exemption 4 and Exemption 5 is that the latter
" is necessarily confined to information [193 L.Ed.2d
415] generated by the Federal Government itself."
Id., at 360, 99 S.Ct. 2800, 61 L.Ed.2d 587.
First Circuit's decision warrants review. It perpetuates
an unsupported interpretation of an important federal statute
and further muddies an already amorphous test. For these