Thread by @AlexanderAbdo

Today, the Supreme Court decided FMI v. Argus Leader Media, a case that may have an outsize impact on public understanding of private services and technologies used by the government to perform official functions.

Here’s a quick explanation of why. /1

supremecourt.gov/opinions/18pdf…

The case was about the Freedom of Information Act (FOIA), which entitles members of the public to ask federal agencies for their records. The agencies have to turn requested records over unless they fall within an “exemption” to FOIA. /2

One of the exemptions — Exemption 4 — allows agencies to refuse to turn over “confidential” commercial information. The FMI case was about when a record turned over to the government by a private company is “confidential” for purposes of Exemption 4. /3

The company whose information was at stake argued that records are “confidential” if the company that turned them over to the government otherwise kept them private. The government said that the government's promise to keep the records confidential also qualified. /4

We joined an amicus brief drafted by @jmmanes and his clinic (also joined by @AINowInstitute @EFF @RaceNYU), which argued that the Court should interpret “confidential” (and, by extension, Exemption 4) narrowly. /5

knightcolumbia.org/sites/default/…

Unfortunately, the Court effectively rejected our argument and said that a record is “confidential” at the very least where the company kept it private and the government assured confidentiality. /6

The ruling may seem arcane, but it could have enormous implications, because the government relies on private services and technologies all the time to carry out important public functions. /7

If a company’s say-so (and/or the government’s agreement) is enough to keep records secret under Exemption 4, then FOIA will be of little use in making sure the public understands the government’s reliance on private services and technologies. /8

Just consider the privately designed algorithms the government now relies on to make decisions about bail, sentencing, and parole, or to conduct facial recognition or other forms of surveillance. /9

If Exemption 4 shuts off public access to information about these systems, it will be much harder to study them to determine, for instance, whether algorithms that assist in parole determinations actually reinforce societal biases against communities of color. /10

Here’s how @jmmanes explained it in our amicus brief: /11

Fortunately, this isn’t the end of the story. In 2016, after the FOIA request in the FMI case was sent, Congress amended FOIA to permit an agency to withhold records only when it “reasonably foresees that disclosure would harm an interest protected by an exemption.” /12

An amicus brief filed by @rcfp in the FMI case argued that this new provision requires that the government show more than just a request or promise of confidentiality before withholding records under Exemption 4. /13

rcfp.org/briefs-comment…

The new provision didn’t apply to the FMI case, though, because it post-dated the request, so it will be up to courts in future cases to interpret Exemption 4 in light of the new standard requiring foreseeable harm as a prerequisite to withholding. /END