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123 Mich. L. Rev. Online 1 (2024-2025)

handle is hein.journals/mlro123 and id is 1 raw text is: NARROWING FOIA'S EXEMPTION FOR BUSINESS SECRETS Deepa Varadarajan* This essay examines the judicial aftermath of Food Marketing Institute v. Argus Leader Media, a controversial 2019 Supreme Court decision that broadened the Freedom of Information Act (FOIA) exemption for trade se- crets and confidential commercial information (Exemption 4). This de- cision has made it easier for firms to hide damaging information from public view,frustrating the efforts ofjournalists and government watch- dog groups that make FOIA requests to expose environmental harms, health risks, andfailures of agency oversight. But two recent circuit court decisions highlight a promising pathforward; they interpret Exemption 4 in ways that can mitigate Food Marketing's negative impact and align more closely with FOIA's disclosure-promoting goals. INTRODUCTION Government transparency is central to a healthy democracy. In 1966, the Freedom of Information Act (FOIA)l was enacted to pierce the veil of administrative secrecy and [] open agency action to the light of public scrutiny.2 By providing the public with a judicially enforceable right of access to federal agency records, FOIA would help hold the governors accountable to the governed3-in theory, at least. In practice, FOIA often falls short of its lofty ambitions. Scholars offer many reasons for the dis- juncture between FOIA's laudable goal of transparency and the actual, maddening experiences of journalists, researchers, and watchdog groups who request information in the public's interest.4 Associate Professor, Georgia State University College of Law. For helpful comments, I thank Charles Tait Graves, Cynthia Ho, Camilla Hrdy, David Levine, Margaret Kwoka, Tim Murphy, Sharon Sandeen, John Villasenor, and participants at the 2024 Trade Secret Schol- ars Workshop. All errors are my own. 1. Freedom of Information Act (FOIA), 5 U.S.C. § 552. 2. Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep't of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). 3. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). When requests for information are denied, FOIA provides requesters an administrative appeals process and a remedy in federal courts. Judges review agency withholding decisions de novo, and agen- cies bear the burden of proof in defending nondisclosure. See 5 U.S.C. § 552(a)(4)-(a)(6) (2018). 4. See e.g., Margaret B. Kwoka, FOIA, Inc., 65 DUKE L.J. 1361, 1361, 1371 (2016) (ex- plaining that FOIA was designed largely by [and] for journalists so they could use access to government information to provide knowledge to the public, but describing how jour- nalists' efforts have been crowded out by profit-seeking FOIA requesters); David E. 1