Over the dissent of two Justices, the Supreme Court refused to clarify a privacy clause in the Freedom of Information Act that protects commercial information that private organizations are required to share with the federal government. That is Exemption 4, which the Court has never interpreted, according to the dissenting Justices.

The Court’s denial of review of New Hampshire Right to Life v. Department of Health & Human Services thwarted an attempt by an anti-abortion group to get access to internal papers of Planned Parenthood that had been sent to the government in 2011 to support a grant of federal money for family planning projects in New Hampshire. The Court did not explain its order.

The dispute arose over papers describing the medical standards and guidelines that Planned Parenthood’s facilities follow, along with its fee schedule for services.

Under Title X of the Public Health Service Act, the federal government makes grants to public or non-profit private entities to pay for voluntary family planning projects. Title X bars any grants to a program that offers abortion as a method of family planning.

Prior to 2011, in New Hampshire, the federal government granted funds to the state government, which passed along some of the money to Planned Parenthood facilities. That year, state officials decided to stop accepting such grants, saying they were concerned that taxpayer funds were being used to “subsidize abortions.” It could not find a sufficient number of providers, so it returned funds to Washington.

The Department of Health and Human Services decided in 2011 to make grants on a sole-source basis to Planned Parenthood for a period of sixteen months. It required the provider to submit internal files on its policies and procedures. Planned Parenthood did so.

Later that year, New Hampshire Right to Life asked HHS, under the Freedom of Information Act, to disclose the papers that had been filed, as well as internal HHS documents describing its plan to go ahead with the grants. When HHS refused, the group sued. HHS turned over about 2,500 pages but withheld some of the Planned Parenthood filings under Exemption 4.

A federal district court judge and the U.S. Court of Appeals for the First Circuit upheld HHS’s refusal.

Taking its plea on to the Supreme Court, New Hampshire Right to Life noted that the Court had never interpreted the scope of Exemption 4. It protested that the First Circuit had allowed the use of that exemption any time there is a claim of potential, not actual, future competition. In this instance, the competition would be for grant funds from HHS.

The Court on Monday denied the petition, prompting a dissent from Justice Clarence Thomas, joined by Justice Antonin Scalia. The dissenters protested that federal appeals courts have turned Exemption 4 into a broad exemption to FOIA, even when there is no proof that disclosure of documents would actually produce competitive harm to the owner of those files.

New Hampshire Right to Life had also asked the Court to further clarify Exemption 5 of FOIA, which exempts from disclosure intra-agency memos or letters which would not be available if sought in a civil case in federal court. The dissenters did not discuss that challenge.

Recommended Citation: Lyle Denniston, Court bypasses FOIA challenge, SCOTUSblog (Nov. 16, 2015, 10:19 AM), https://www.scotusblog.com/2015/11/court-bypasses-foia-challenge/