Why It Matters

Federal courts are divided over whether being denied legally required information is enough to sue in federal court or whether plaintiffs must show that the denial caused additional harm. A Congressional Research Service (CRS) report published September 14 examines when a denial of information can qualify as an informational injury under Article III standing rules. The issue reaches beyond procedure: the Freedom of Information Act (FOIA) requires federal agencies to make specified information public and lets private parties seek that information through litigation. The central tension examined in the report is whether the denial of legally required information is itself enough for a federal lawsuit or whether the plaintiff must show an additional consequence from not receiving it.

The question matters to Congress because Article III requirements apply even when lawmakers create a private right of action, and ordinary legislation cannot alter constitutional injury requirements.

The Big Picture

Article III requires a plaintiff to show an actual or imminent, concrete, and particularized injury that was likely caused by the defendant and likely redressable through judicial relief. The Supreme Court has held in Public Citizen v. Department of Justice that plaintiffs had standing under the Federal Advisory Committee Act (FACA) to obtain advisory-committee information. FACA requires covered advisory committees to make records, reports, meeting minutes, and other documents available to the public, and the Supreme Court characterized refusal to permit scrutiny to the extent FACA allows as a sufficiently distinct injury for standing.

There have been multiple court cases which have established precedent regarding the matter of what constitutes and informational injury. Spokeo, Inc. v. Robins held that a statutory cause of action does not automatically make every statutory violation a concrete injury, and TransUnion LLC v. Ramirez held that class members whose inaccurate credit reports were disseminated had standing, while those whose reports were kept internally and never disseminated did not suffer a concrete injury sufficient for Article III standing. TransUnion did not overrule Public Citizen or Akins but distinguished them because the plaintiffs in TransUnion did not allege that they failed to receive required information and identified no downstream consequences from failing to receive the required information, and Public Citizen and Akins involved public-disclosure laws.

The Bottom Line

The Sixth Circuit and Eighth Circuit have adopted the approach requiring downstream consequences, and a Sixth Circuit panel found that allegations about research, educational, and remedial activities and the accumulation of institutional knowledge were insufficient to establish standing.The Ninth Circuit took a different view, however, holding that a total denial under a sunshine statute is a concrete injury and that an National Voter Registration Act plaintiff need not allege harm beyond the denial of information. Congress could incorporate an injury requirement into a new private right of action, authorize suits in state courts, authorize a federal agency to enforce an informational right instead of creating a private right of action, or wait for additional litigation.

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