On February 25, President Biden nominated Justice Ketanji Brown Jackson of the District of Columbia Court of Appeals to fill the Supreme Court vacancy created by the retirement of Justice Stephen Breyer. Judge Jackson’s resume includes nearly 10 years of service on the bench – she was first appointed by President Obama to the District Court for the District of Columbia in 2012 and served as a federal trial judge until upon his appointment to the Circuit Court in 2021. judge in the nation’s capital, his role included a slew of cases involving the federal Freedom of Information Act (FOIA), as individuals and businesses challenged the withholding by federal agencies of records requested under federal law. Judge Jackson’s rulings in many of these cases provide insight into his position on important FOIA issues. If upheld by the highest court, Judge Jackson’s position and opinions on these matters could affect the privacy interests, intellectual property rights and commercial interests of all individuals and businesses who contract and correspond with government agencies.
I. Freedom of Information Act
The federal Freedom of Information Act (FOIA) is a law that generally grants any person or entity the right, enforceable in court, to obtain access to federal agency records. The FOIA creates a statutory right of public access to federal executive information. All 50 states have enacted their own analogs to the law, providing similar rights to citizens and businesses seeking to file documents with state agencies.
State laws and federal FOIA law include exemptions that protect certain types of information from disclosure. For example, under federal FOIA law, an agency can redact or withhold certain documents if the agency believes that the information in those documents falls within one of nine statutory exemptions.  The different types of exemptions include classified information to protect national security; information relating solely to the internal rules and practices of an agency’s staff; trade secrets or confidential or privileged commercial or financial information; and information which, if disclosed, would infringe another individual’s privacy.  Agencies may claim these exemptions on their own behalf, or other parties affected by the disclosure may choose to challenge an agency’s release of certain documents through a “reverse FOIA” lawsuit. 
II. Judge Jackson’s agency deference brief
A review of Judge Jackson’s FOIA rulings reveals that she has shown deference to agency exemption requests. In fact, Judge Jackson was only overturned by the DC Circuit 10 times while he was in district court, and two of those 10 rulings involved FOIA matters. One such reversal provides a particularly useful example of Judge Jackson’s willingness to defer to agency decisions.
In Pavement Coatings Technology Council c. United States Geological SurveyJudge Jackson found that certain documents withheld by the US Geological Survey (USGS) fell within the “deliberative process” exemption of federal FOIA law.  The deliberative procedure exemption covers “inter-agency or intra-agency memoranda or letters that would not be available under the law to a party other than an agency in dispute with the agency”,  and has been interpreted to apply to “advisory opinions, recommendations and deliberations of an agency forming part of a process by which government decisions and policies are formulated”.  Courts apply a two-part test to determine whether a document qualifies for the exemption, asking whether the information is both “pre-disposition” and “deliberative”.  The impetus for the privilege comes from a desire to avoid exposing “an agency’s decision-making process in such a way as to discourage frank discussions within the agency and thereby undermine the agency’s ability to fulfill its functions”. 
In Pavement coatingsthe USGS withheld and redacted several categories of documents, including scientists’ notes regarding tar and asphalt mastic studies, an “exploratory analysis” of data used by scientists to evaluate various mastic techniques, and drafts of many “working papers” and “journal articles”. ” used by the agency in the writing of some publications on tar sealants.  Judge Jackson found the documents to be “pre-disposition” because they implicated the underlying USGS methods used to study the tar sealer and the prepublication findings regarding those sealants.  Essentially, the documents captured “the agency’s thought process leading to its sealant-related publications.”  She further argued that they were “deliberative” because “the documents clearly reflect[ed] the deliberations the agency has undertaken as part of its decision-making process, which is all the FOIA requires.” 
The DC Circuit backtracked, disagreeing with Judge Jackson on both prongs of the two-factor test and finding the documents were neither pre-sentence nor deliberative.  The appeals court focused on the fact that the USGS used the documents to determine whether to publish a particular article, not to arrive at a scientific result.  Further, the court noted that publishing the scientists’ work might allow criticism of the USGS, but that was not enough to justify the withholding: “[C]criticism is not a recognized evil against which the privilege of the deliberative process is supposed to protect. »  Judge Jackson was far more willing than the DC Circuit to defer to USGS judgment and protect the agency’s internal procedures, even when the final decision was the mere publication of a research paper.
III. Take away food
Judge Jackson’s FOIA filing is particularly interesting compared to Judge Breyer’s. In recent years, Judge Breyer has written notable dissents in which he was far less willing to defer to agencies when arguing exemption claims. In 2019, Judge Breyer strongly criticized the six-member majority’s decision to exempt information about grocery store food stamp totals from disclosure, warning that the decision would “deprive the public of information for reasons which are no better than convenience, nervousness or bureaucratic inertia”. .”  And just a year ago, Judge Breyer dissented in United States Fish & Wildlife Service v. Sierra Cluba 7-2 majority case that many are touting as marking a significant expansion of the deliberative process exemption to better protect agency information from disclosure.  The issue before the Court in that case was whether deliberative privilege shields from disclosure certain documents prepared during a legally required inter-agency consultation process between two agencies, particularly where those documents do not reflect not the agency’s final opinion on the matter.  In the end, the majority took a ‘dies on the vine’ approach and felt the documents could be withheld given that they spoke only of ‘dead ends’ and could ‘hardly be described as reflecting the chosen path. by the agency”.  Justice Breyer dissented, pointing out that courts should take a more intensive, project-by-project approach — one that would make it more difficult and costly for agencies or third parties to oppose FOIA requests. 
To be sure, Judge Jackson ordered the production of documents in some circumstances and in others declined to at least rule in favor of the agency’s decisions at the summary judgment stage.  His deference surely has its limits. But if past rulings are any indication, adding Judge Jackson to the highest court will likely add another judge to a growing majority who is inclined to protect information from disclosure.
 5 USC § 552.  Identifier.  Department of Justice, Reverse FOIA: Department of Justice Guide to the Freedom of Information Act (2009), https://www.justice.gov/archive/oip/foia_guide09/reverse-foia.pdf.  436 F. Sup. 3d 115 (SDC 2019).  5 USC § 552(b)(5).  Home Department v Klamath Water Users Protective Association531 US 1, 8 (2001).  436 F. Sup. 3rd at 125.  Identifier. (quoting Dudman Communications Corp. vs. Air Force Department815 F.2d 1565, 1568 (DC Cir. 1987)).  Identifier. at 122.  Identifier. at 127.  Identifier.  Identifier. at 129 (citing Hooker v. US Department of Health and Human Services, 887 F. Supp. 2d 40, 58 (SDC 2012)  Pavement Coatings Technology Council c. United States Geological Survey995 F.3d 1014, 1021-22 (DCC 2021).  Identifier.  Identifier. at 1022.  Food Marketing Institute vs. Argus Leader Media, 139 S.Ct. 2356, 2368 (2019) (Breyer, J., partly agreeing and partly dissenting).  141 S.Ct. 777 (2021).  Identifier.  Identifier. at 786.  Identifier. at 789-92 (Breyer, J., dissenting).  Chests c. Department of Homeland SecurityNo. 15-CV-1091, 2017 WL 7053929 (DDC March 31, 2017) (denying the Federal Bureau of Investigation’s motion for summary judgment when the agencies’ statements failed to provide specific justifications for the withholdings); AquaAlliance v. United States Bureau of Reclamation, 139 F. Supp. 3d 203 (DDC 2015) (stating that the Bureau of Reclamation had offered “nothing more than conclusive allegations as to the existence of a substantial privacy interest” that would support the agency’s decision retain relevant documents).