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# Supremes Make FOIA Denials Easier for Agencies
- URL: https://www.fdaweb.com/supremes-make-foia-denials-easier-for-agencies/
- Published: 2019-06-26T12:00:00.000Z
- Updated: 2026-09-15T01:35:11.000Z
- Author: David McFarland
- Tags: FDA Policy/General, #legacy-id-D5144430

The U.S. Supreme Court 6/24 delivered a 6-3 [decision](https://www.supremecourt.gov/opinions/18pdf/18-481%5F5426.pdf?ref=fdaweb.com) that will make it easier for FDA and other government agencies to shield companies’ supposed commercial/confidential information from disclosure under the Freedom of Information Act (FOIA). Writing in a 6/26 *FDA Law Blog* [post](http://www.fdalawblog.net/2019/06/scotus-makes-it-easier-for-government-to-withhold-commercial-or-financial-information/?ref=fdaweb.com), Hyman, Phelps & McNamara attorney **Anne Walsh** says the opinion narrows the proof companies must demonstrate to block commercial or financial information disclosures pursuant to FOIA requests. Companies now only need to “show its efforts to keep the information private, and the assurances from FDA that it would treat the information as such,” Walsh notes, adding that there now “no requirement for showing any harm from the disclosure of that information, whether substantial or negligible.”

In an accompanying opinion, justice Breyer maintained that the high court’s interpretation of the FOIA exemption is at odds with the “whole point” of FOIA: providing public access to information that cannot be obtained elsewhere, notes Walsh. “Otherwise FOIA would be unnecessary, because Google searches could suffice to obtain information that is already publicly available,” she wrote. “\[Bryer\] warned that the court’s reading will ‘deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.’”

In an [article ](https://www.cjr.org/the%5Fmedia%5Ftoday/supreme-court-foia-ruling.php?ref=fdaweb.com)penned by the *Columbia Journalism Review* entitled “The Supreme Court stamps on freedom of information,” experts fear that the Supreme Court’s ruling will have a negative impact on journalists. “Businesses in regulated industries will be the main beneficiaries of this decision, while the press and public will have a harder time using the FOIA to investigate such businesses and their interactions with government agencies,” University of Georgia media law professor Jonathan Peters is quoted as saying.

“This decision is of a piece with government efforts nationwide to shield information and events from public view,” Peters continues. “It’s offensive to the basic idea that our democratic system is based on the will of the people…”

New York University journalism professor **Charles Seife** tells ***FDA Webview*** that he is very disappointed in the decision and it will make it harder to do reporting on executive branch agencies generally and FDA in particular. Seife, who has two FOIA lawsuits pending, says that when “agencies are given more latitude to deem information confidential and hide it from the public, it becomes harder to understand the reasoning for fundamental agency decisions such as drug approval.”  

As for what happens next, Seife does not believe there will be much movement from Congress in the near future. “I think that we're going to see some litigation regarding the ‘foreseeable harm’ standard — which SCOTUS, for some reason, didn't give any guidance on. And given that this decision blew up several decades’ worth of precedent, I think it's going to be quite a while before we get any degree of clarity.”