Cite as: 577 U. S. ____ (2015)
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` THOMAS, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
`NEW HAMPSHIRE RIGHT TO LIFE v. DEPARTMENT
`OF HEALTH AND HUMAN SERVICES
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
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`STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
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`No. 14–1273. Decided November 16, 2015
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`The petition for a writ of certiorari is denied.
`JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
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`dissenting from the denial of certiorari.
`The Freedom of Information Act (FOIA), 5 U. S. C. §552,
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`requires federal agencies to “make [agency] records
`promptly available to any person” who requests them,
`unless the information that they contain falls under a
`specifically enumerated exemption. §§552(a)(3)(A), (b).
`One of those exemptions, Exemption 4, authorizes agen-
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`cies to withhold documents that contain “trade secrets and
`commercial or financial information obtained from a per-
`son and privileged or confidential.” §552(b)(4).
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`We have long maintained that “FOIA reflects a general
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`philosophy of full agency disclosure unless information is
`exempted under clearly delineated statutory language.”
`Department of Defense v. FLRA, 510 U. S. 487, 494 (1994)
`(internal quotation marks omitted). And we have rejected
`interpretations of other FOIA exemptions that diverge
`from the text. E.g., Milner v. Department of Navy, 562
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`U. S. 562, 573 (2011) (rejecting interpretation due to its
`“patent flaw: It is disconnected from Exemption 2’s text”).
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`Though we often have considered other FOIA exemp-
`tions, we have never interpreted Exemption 4’s exception
`for “trade secrets and commercial or financial information
`obtained from a person and privileged or confidential.”
`§552(b)(4).
`In the meantime, Courts of Appeals have
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`declined to interpret the word “confidential” in Exemption
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` NEW HAMPSHIRE RIGHT TO LIFE v. DEPARTMENT
`
` OF HEALTH AND HUMAN SERVICES
`
` THOMAS, J., dissenting
`
`
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`4 according to its ordinary meaning. Here, for instance,
`the Court of Appeals for the First Circuit upheld the De-
`partment of Health and Human Services’ refusal to dis-
`close Planned Parenthood’s Manual of Medical Standards
`and Guidelines, a document that the Government had
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`required Planned Parenthood to submit in connection with
`a non-competitive grant application. See New Hampshire
`Right to Life v. Department of Health and Human Ser-
`vices, 778 F. 3d 43, 49–52 (2015). The First Circuit based
`this conclusion not on the ordinary meaning of the term
`“confidential,” but on conjectures as to whether disclosure
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`could harm Planned Parenthood’s competitive position.
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`The court deemed the manual confidential because “[a]
`potential future competitor could take advantage of the
`institutional knowledge contained in the Manual” to com-
`pete with Planned Parenthood at some later date. Id.,
`at 51.
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`The decision below reflects a wider development. Courts
`of Appeals have embraced varying versions of a convoluted
`test that rests on judicial speculation about whether dis-
`closure will cause competitive harm to the entity from
`which the information was obtained. In 1974, the Court of
`Appeals for the D. C. Circuit decided National Parks and
`Conservation Assn. v. Morton, 498 F. 2d 765, which con-
`strued the word “confidential” in Exemption 4 by looking
`to legislative history and the “legislative purpose which
`underlies the exemption.” Id., at 767; see id., at 766–770.
`That court determined that commercial information is
`“confidential” if, inter alia, disclosure would “cause sub-
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`stantial harm to the competitive position of the person
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`from whom the information was obtained.” Id., at 770.
`The D. C. Circuit later elaborated that there was no need
`to “show actual competitive harm,” and that “[a]ctual
`competition and the likelihood of substantial competitive
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`injury” sufficed. Public Citizen Health Research Group v.
`FDA, 704 F. 2d 1280, 1291 (1983) (internal quotation
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` Cite as: 577 U. S. ____ (2015)
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` THOMAS, J., dissenting
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`marks omitted). Seven other Circuits adopted the Na-
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` tional Parks test. See Critical Mass Energy Project v. NRC,
`975 F. 2d 871, 876 (CADC 1992) (en banc) (collecting
`cases).
`In 1992, the D. C. Circuit granted rehearing en banc to
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`reconsider National Parks, after two judges of that court
`described its test as “fabricated, out of whole cloth.” Criti-
`cal Mass, 975 F. 2d, at 875 (internal quotation marks
`omitted). The full court declined to overrule it entirely.
`Id., at 876–877, 880. Instead, the court “confine[d]” the
`National Parks test “to information that persons are re-
`quired to provide the Government,” and adopted a differ-
`ent test for voluntarily provided information. 975 F. 2d, at
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`872, 880.
`Since then, every Court of Appeals to consider Exemp-
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`tion 4 has interpreted it by parsing National Parks’ nebu-
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`lous language about “actual competition” and a “substan-
`tial likelihood of competitive harm.” The courts’ reliance
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` on National Parks to determine whether information is
`“confidential” commercial information has produced confu-
`sion. Courts cannot seem to agree on what kind of “actual
`competition” must be shown. Some require factual justifi-
`cations and market definitions to show that there is “ac-
`tual competition in the relevant market” in which the entity
`opposing the disclosure of its information operates. Wat-
`kins v. Bureau of Customs and Border Protection, 643
`F. 3d 1189, 1196 (CA9 2011). Others, including the First
`Circuit below, take an expansive view of what the relevant
`market is, and do not require any connection between that
`market and the context in which an entity supplied the
`requested information. 778 F. 3d, at 51.
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`Courts of Appeals also disagree over what a “substantial
`likelihood of competitive harm” means. In some courts,
`there must be evidence that the entity whose information
`is being disclosed would likely suffer some defined compet-
` itive harm (like lost market share) if competitors used the
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`NEW HAMPSHIRE RIGHT TO LIFE v. DEPARTMENT
`
`OF HEALTH AND HUMAN SERVICES
`
` THOMAS, J., dissenting
`
`
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` information. E.g., McDonnell Douglas Corp. v. Depart-
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`ment of Air Force, 375 F. 3d 1182, 1187 (CADC 2004); GC
`Micro Corp. v. Defense Logistics Agency, 33 F. 3d 1109,
`1115 (CA9 1994). But the First Circuit here accepted that
`competitors’ possible use of the information alone consti-
`tutes harm—even if this would not likely result in any
`negative consequences for the entity whose information
`was disclosed. See 778 F. 3d, at 51. Similarly, some
`courts hold that competitive harm exists if a competitor
`could use the disclosed information to publicly embarrass
`the originator of the information. E.g., Nadler v. FDIC, 92
`F. 3d 93, 96–97 (CA2 1996). Others hold that this can
`never be competitive harm. E.g., United Technologies
`Corp. v. Department of Defense, 601 F. 3d 557, 563–564
`(CADC 2010). We should not leave the meaning of Ex-
`emption 4 up to an atextual test that has different limits
`in different Circuits.*
`By failing to address the Courts of Appeals’ abrogation
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`of Exemption 4’s text, we have also created a disconcerting
`anomaly. We have interpreted FOIA Exemption 5—
`applicable to agency memoranda that “would not be avail-
`able by law to a party . . . in litigation with the agency,”
`§552(b)(5)—to encompass a “privilege for confidential
`commercial information” created by the Government.
`Federal Open Market Comm. v. Merrill, 443 U. S. 340, 360
`(1979). Yet, in that context, we defined confidential com-
`mercial information to mean information “generated in the
`process of awarding a contract,” which “would in fact be
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`privileged in civil discovery.” Id., at 361. It is odd for one
`definition of confidential commercial information to apply
`to Government-generated records and for a different test
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`——————
`*The Government apparently agrees. Rather than defending the
`Courts of Appeals’ tests, the Government’s brief opposing certiorari
`states that every court that has adopted the National Parks definition
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`of “confidential” information has turned its back on the statutory text.
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`4
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` Cite as: 577 U. S. ____ (2015)
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` THOMAS, J., dissenting
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`to apply if nongovernmental actors created them. It is
`especially strange given our recognition that the only
`difference between confidential commercial information
`covered by Exemption 4 and Exemption 5 is that the latter
`“is necessarily confined to information generated by the
`Federal Government itself.” Id., at 360.
`*
`*
`*
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`The First Circuit’s decision warrants review. It perpet-
`uates an unsupported interpretation of an important
`federal statute and further muddies an already amor-
`phous test. For these reasons, I respectfully dissent from
`the denial of certiorari.
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`5