The federal government’s broad use of an open records law exemption to withhold the identities of companies that supply lethal injection drugs could have serious consequences for government transparency, according to a legal brief filed by American Oversight on Tuesday. 

The watchdog group submitted an amicus curiae brief supporting the position of Citizens for Responsibility and Ethics in Washington (CREW) in its appeal before the D.C. Circuit in a Freedom of Information Act (FOIA) suit that seeks information about entities that provide the federal government with drugs for executions by lethal injection. In its amicus brief, American Oversight argues that the district court’s overly broad reading of FOIA Exemption 4, which is meant to protect confidential commercial information, could have severe implications for government oversight generally. 

Exemption 4 safeguards from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” American Oversight argued that the Department of Justice’s use of the exemption to redact key information from public records it produced to CREW was overly broad. 

“Endorsing the district court’s flawed reasoning in this case would sweep broadly and risk stifling the public’s ability to assess private interests’ access and influence on executive policymaking,” American Oversight wrote in the brief.

CREW submitted FOIA requests to the Justice Department in August 2019 seeking records related to the procurement of the drug pentobarbital. The drug had been added to the Bureau of Prisons’ (BOP) execution protocol in July 2019 following former U.S. Attorney General William Barr’s announcement that the federal government would resume executions after more than 15 years. 

In December 2019, CREW sued the Justice Department for its refusal to produce the requested records, which included solicitations and contract awards, claiming they were exempt from disclosure. In response to the suit, BOP did produce some documents; however, it withheld two key categories of information under Exemption 4. The agency redacted information identifying the contractors in the government’s pentobarbital supply chain, as well as key terms of the government’s contracts for the drug’s purchase and testing that the agency claimed could reveal the contractors’ identities. The district court upheld these claims, concluding that this information was properly withheld as “commercial” and “confidential” information.

In its amicus brief, American Oversight countered that the mere identities of private contractors do not constitute commercial information, and that the district court’s opinion conflated two independent requirements in Exemption 4 that information must be both “commercial” and “confidential” to be withheld. Arguing that the court’s reasoning was flawed, American Oversight wrote in its brief that the court effectively concluded “a company’s identity [is] commercial information because the government and the company wished to keep the information confidential.”

An overly broad interpretation of Exemption 4 could jeopardize future public access to a wide range of interactions between the government and private sector, including information about how tax dollars are spent on lucrative or controversial government contracts, as well as which lobbyists or private interests seek to influence policymaking.

American Oversight is committed to government transparency and accountability. To learn more, view our investigations.

Read the brief filed by American Oversight below:

21-5276 – CREW v. DOJ – Am. Oversight Amicus40