Ryan Mulvey on Sunshine Week, Loper Bright, and FOIA

AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.”

“Chevron is overruled.”  With these historic words, Loper Bright eliminated Chevron deference.  The resolution of all legal questions—including the meaning of withholding statutes used with the FOIA—should now be resolved de novo.  Whether the use of extrinsic withholding statutes in the FOIA context is best understood as a matter of “reconciliation,” which might technically trigger review under Section 706, or “incorporation,” under Section 552, the same method for judicial decision-making applies across the board.

When a requester disputes that a record is protected by Exemption 3, a court is obliged to provide its independent, best judgment about the scope and application of the underlying withholding provision.  Of course, there may be instances where “respect” for the agency’s position is appropriate.  And Congress could, in theory, design a withholding statute to grant an agency express discretion to set the bounds of its reach.  But even then, the general rule is de novo review, and the legal limits of the scope of the statute under review remain with the court to determine.