D.C. Circuit Review - Reviewed: Who Needs Deference?
Yale J. on Reg., Notice & Comment, Feb. 6, 2023
[. . .] Last, but certainly not least for those who support access to government information: The court rejected (for now) the government’s attempt to withhold certain records related to its procurement of pentobarbital for lethal injections. In brief, the main issue before the court in Citizens for Responsibility and Ethics in Washington v. DOJ, No. 21-5276 (D.C. Cir. Jan. 31, 2023), was whether the suppliers’ names and certain contract terms (like the drugs’ prices and quantities, unconnected to supplier names) qualified under Exemption 4, which covers trade secrets and confidential commercial information. With Judge Pillard writing (joined by Judge Childs), the court held that the government had not shown (at the summary judgment stage) that the names themselves were “commercial” (though the parties agreed the names were confidential) or that the contract terms were confidential because their disclosure would necessarily reveal the suppliers’ names. The government gets an opportunity to try again on remand. Judge Sentelle concurred in the judgment, agreeing that the government had not yet met its burden, but expressing some skepticism of the panel’s interpretation of the word “commercial.”
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