United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2014 Decided July 17, 2015

No. 14-5030

CHIQUITA BRANDS INTERNATIONAL INC.,

APPELLANT

v.

SECURITIES AND EXCHANGE COMMISSION AND NATIONAL 

SECURITY ARCHIVE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00435)

Mark H. Lynch argued the cause for appellant. With him 

on the briefs were James M. Garland, Mark W. Mosier, 

Ashley M. Sprague, and Jaclyn E. Martínez Resly.

Sarah E. Hancur, Senior Counsel, Securities and 

Exchange Commission, argued the cause for appellee 

Securities and Exchange Commission. With her on the brief 

were Melinda Hardy and Thomas J. Karr, Assistants General 

Counsel.
2

Adina H. Rosenbaum argued the cause for appellee 

National Security Archive. With her on the brief was Michael 

T. Kirkpatrick. Jeffrey S. Gutman entered an appearance.

Before: GRIFFITH, KAVANAUGH, and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Pursuant to the Freedom of Information Act, the National 

Security Archive requested investigative materials that the

Securities and Exchange Commission had gathered involving 

payments made to paramilitary groups in Colombia by a 

subsidiary of Chiquita Brands International. Chiquita

requested that the Commission deny the Archive’s request, 

arguing that releasing the records at this point in time would 

deprive the company of a fair trial in pending multi-district 

litigation in Florida. Neither the Commission nor the district 

court hearing this reverse-FOIA action thought release would 

deprive Chiquita of a fair trial. We agree with them. 

I

A familiar brand in American households, Chiquita 

produces, markets, and distributes bananas and other produce

worldwide. During the time relevant to this appeal, Chiquita 

worked in Colombia through a subsidiary known as Banadex.

In 2001, Chiquita reached a cease-and-desist settlement 

with the Securities and Exchange Commission regarding 

charges that Banadex violated the Securities Exchange Act of 

1934 by failing to accurately record certain payments made to 
3

local officials in Colombia. In 2007, following further 

investigation of Banadex by the Justice Department (DOJ), 

Chiquita pled guilty in the United States District Court for the 

District of Columbia to a single felony count under 50 

U.S.C. § 1705(b) (2006) and 31 C.F.R. § 594.204 of engaging 

in unauthorized transactions with Autodefensas Unidas de 

Colombia (AUC), a group that the federal government had 

designated as a global terrorist organization. During the 

course of the DOJ’s investigation, Chiquita acknowledged 

that Banadex had made the payments demanded by AUC but 

insisted the company did so only to protect its Colombian 

employees from being kidnapped, injured, and murdered.

Chiquita produced thousands of documents related to those 

payments to investigators from the DOJ and the Commission, 

requesting that the Commission treat the records it received

confidentially and not release them under the Freedom of 

Information Act (FOIA). See 17 C.F.R. § 200.83 (detailing 

the SEC’s confidential treatment procedures). In 2011, the 

DOJ released over 5,500 pages of these documents to the 

National Security Archive (Archive) under FOIA. The 

collection, which is available to the public on the Archive’s 

website, includes notes, memoranda, and internal 

communications regarding Banadex’s payments to AUC and 

other armed groups in Colombia.

The Archive describes itself as a non-profit library 

located at George Washington University in Washington, 

D.C., that, among other things, collects and publishes 

declassified documents related to U.S. national security. In 

2000, the Archive initiated its Colombia Documentation 

Project—a campaign that has led to the filing of nearly 3,000 

FOIA requests with various federal agencies for documents 

related to issues involving the United States and Colombia, 

such as narcotics trafficking, drug cartels, and paramilitary 
4

groups. The Archive filed two FOIA requests with the SEC in 

November 2008 seeking documents related to the federal 

investigations of Banadex that led to the cease-and-desist 

settlement and the guilty plea, as well as any documents from 

1989 onward in the SEC’s possession relating to the 

company’s finances. The Commission identified 

approximately twenty-three boxes of responsive documents

that Chiquita had submitted, including forms describing the 

date and amount of payments made to paramilitary groups, as 

well as the identities of those who authorized the payments; 

accounting memoranda prepared by Banadex employees; 

receipts, ledgers, and spreadsheets documenting the 

payments; legal documents, internal reports, auditors’ notes, 

and other internal correspondence analyzing and discussing 

the payments; and transcripts of depositions taken of 

Chiquita’s employees. This appeal involves those documents 

the Commission identified that relate to Banadex’s payments

to AUC and other such groups, some of which appear to be 

similar to the records already released to the Archive by the 

DOJ in 2011.

When the Commission receives a FOIA request and 

determines that the documents requested should be released, 

its regulations require the Commission to send notice of this 

decision to the confidential treatment requestor that originally 

produced the documents to the Commission and asked that 

they not be released under FOIA (Chiquita, in this case). 17 

C.F.R. § 200.83(d)(1). The requestor must then submit a 

written statement to the Commission’s Office of Freedom of 

Information and Privacy Act Operations (or Office of FOIA 

Services) substantiating the original confidential treatment 

request and explaining “why the information should be 

withheld from access” under FOIA. Id. § 200.83(d)(2)(i). The 

Office then issues a preliminary decision to grant or reject the 
5

request. Id. § 200.83(e)(1). A requestor that disagrees with the 

preliminary decision of the Office may submit supplemental 

arguments and request a final decision. Id. An adverse final 

decision can be appealed to the Commission’s General 

Counsel, whose decision is reviewable in federal court. Id. 

§ 200.83(e)(3), (5).

Chiquita is now embroiled in multi-district litigation in the

United States District Court for the Southern District of 

Florida brought by Colombian citizens who allege that

Chiquita and some of its former officers should be held liable 

for making payments to paramilitary organizations such as 

AUC that tortured and murdered the plaintiffs and their

families. These plaintiffs originally raised federal claims 

under the Alien Tort Statute and the Torture Victim

Protection Act, as well as claims under state and Colombian 

law. Since 2008, discovery has been stayed while the parties 

litigated jurisdictional issues that the district court certified for 

interlocutory review. Although the federal claims against 

Chiquita have been dismissed as a result of that interlocutory 

appeal, Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 

(11th Cir. 2014), other claims remain pending. Chiquita and 

its fellow defendants have filed motions to dismiss and 

discovery remains stayed until those motions are resolved. 

See Order Granting Pls.’ Emergency Mot. for Leave to Take 

Depositions 5, No. 0:08-01916-KAM (S.D. Fla. April 7, 

2015) (Dkt. No. 759); see id. at 18-19 (partially lifting the 

discovery stay to permit the parties to engage in certain

limited discovery). 

II

When told of the Archive’s FOIA request, Chiquita 

invoked FOIA Exemption 7(B) in its plea to the 
6

Commission’s Office of FOIA Services that the documents be 

withheld from the Archive. See 5 U.S.C. § 552(b)(7)(B).

Their release, Chiquita asserted, would deprive the company 

of a fair trial in the Florida litigation. Because the Archive is 

directly affiliated with and actively supports the Florida

plaintiffs’ counsel, Chiquita argued, releasing these 

confidential documents to the Archive would be tantamount 

to giving them to the plaintiffs. Doing so would be an endrun around the protections afforded the defendants in the 

discovery process yet to be established in the Florida 

litigation. That court, Chiquita maintained, ought to be the 

arbiter of what information the plaintiffs may see and use. 

Otherwise, the plaintiffs might gain premature access to

documents relevant to their claims and enjoy an unfair 

advantage. The Office rejected Chiquita’s argument. Chiquita 

tried again, and once more, the Office said no.

Chiquita appealed its loss to the Commission’s General 

Counsel, arguing that release of the records would interfere 

with the fairness of the Florida litigation by providing the 

plaintiffs with early and unilateral access to relevant 

documents without a protective order in place, and by 

generating pretrial publicity that would taint future jurors.

Chiquita, however, did not assert that the Florida plaintiffs 

would be unable to get these documents through discovery 

and conceded that it will produce the documents to its 

opponents when and if they become available through 

discovery.

1 The General Counsel concluded that no undue 

advantage would come from the plaintiffs gaining access to 

 1 Chiquita informed the Commission that some of the 

documents the Archive requested contain privileged legal work 

product that would be protected from discovery in the Florida 

litigation. The company no longer advances that argument.
7

these documents through FOIA before they could obtain them

through discovery and that their release without a protective 

order would not result in adverse pretrial publicity that would 

bias jurors.

In April 2013, Chiquita filed this action in the United 

States District Court for the District of Columbia, arguing that 

the Commission’s failure to apply Exemption 7(B), and its 

refusal to apply certain redactions Chiquita requested, were

arbitrary and capricious under the Administrative Procedure 

Act, 5 U.S.C. § 706. Chiquita Brands Int’l v. SEC, 10 F. 

Supp. 3d 1 (D.D.C. 2013). The Archive intervened on the 

Commission’s behalf. The district court granted summary 

judgment to the Commission, finding, as relevant here, that 

there was “no doubt that the SEC rationally determined from 

the record that disclosure . . . would not seriously interfere 

with the fairness of the Florida litigation.” Id. at 5. 

Chiquita appealed only the district court’s holding related 

to Exemption 7(B). Having abandoned its claim that release 

of the documents would deprive the company and its officers 

of an unbiased jury, Chiquita argues only that Exemption 7(B) 

should bar the release of all documents relevant to the Florida 

litigation until discovery in that case begins and Chiquita can

apply for a protective order. We granted an injunction barring 

their release pending resolution of this case, and we have 

jurisdiction under 28 U.S.C. § 1291. “In a case like [this], in 

which the District Court reviewed an agency action under the 

APA, we review the administrative action directly, according 

no particular deference to the judgment of the District Court.” 

Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 

2002). We review de novo the Commission’s interpretation of 

FOIA. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001). 

We will uphold the Commission’s application of Exemption
8

7(B) to the facts here unless its decision was arbitrary, 

capricious, or unlawful. 5 U.S.C. § 706(2)(A). 

III

FOIA “requires government agencies to make public 

virtually all information that is not specifically exempted from 

disclosure under the Act.” North v. Walsh, 881 F.2d 1088, 

1093-94 (D.C. Cir. 1989). Government agencies must 

generally release requested records without regard to the 

identity or motive of the requestor. See, e.g., NLRB v. Robbins 

Tire & Rubber Co., 437 U.S. 214, 242 n.23 (1978) (holding 

that a FOIA requestor’s rights are neither “diminished” nor 

“enhanced” in light of a “particular, litigation-generated need 

for these materials”). In consequence, FOIA sometimes 

enables litigants to obtain documents that would otherwise be 

unavailable, or less readily available, through the discovery 

process. North, 881 F.2d at 1099 (“[A]n individual may . . . 

obtain under FOIA information that may be useful in nonFOIA litigation, even when the documents sought could not 

be obtained through discovery.”). “Because FOIA establishes 

a strong presumption in favor of disclosure . . . requested 

material must be disclosed unless it falls squarely within one 

of the nine exemptions carved out in the Act.” Burka v. U.S. 

Dep’t of Health and Human Servs., 87 F.3d 508, 515 (D.C. 

Cir. 1996). We construe these exemptions narrowly and place 

the burden of proof on the party opposing disclosure. See, 

e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 

777 F.3d 518, 522 (D.C. Cir. 2015) (“FOIA’s exemptions are 

explicitly made exclusive and must be narrowly construed.”

(internal quotation marks omitted)); Jurewicz v. U.S. Dep’t of 

Agric., 741 F.3d 1326, 1334 (D.C. Cir. 2014) (noting that a 

party who opposes an agency’s decision to disclose records 
9

under FOIA “must demonstrate that [the agency’s] conclusion 

is arbitrary and capricious or contrary to law”). 

Chiquita relies on FOIA Exemption 7(B), which protects 

against the release of “records or information compiled for 

law enforcement purposes [the disclosure of which] . . . 

would deprive a person of a right to a fair trial or an impartial 

adjudication.” 5 U.S.C. § 552(b)(7)(B). In Washington Post 

Co. v. U.S. Dep’t of Justice, we held that Exemption 7(B) 

requires a showing “(1) that a trial or adjudication is pending 

or truly imminent; and (2) that it is more probable than not 

that disclosure of the material sought would seriously 

interfere with the fairness of those proceedings.” 863 F.2d 96, 

102 (D.C. Cir. 1988). The parties agree that the Florida

litigation satisfies the “pending or truly imminent” judicial 

proceeding prong of this test. They dispute only whether 

release of the records “would seriously interfere with the 

fairness of those proceedings.”

To that end, the Commission and the Archive argue that

the exemption should apply only if releasing the records 

would interfere with the fairness of the trial and thereby affect 

the overall fairness of the proceeding. The General Counsel 

applied that standard to reject Chiquita’s request for 

confidential treatment, reasoning that Chiquita failed to show 

how releasing the records could confer an unfair advantage on 

the Florida plaintiffs that more likely than not would affect 

the fairness of an eventual trial. Chiquita disagrees, arguing 

that the way we construed Exemption 7(B) in Washington 

Post prevents an agency from granting a FOIA request for law 

enforcement records whenever litigation is pending and the 

documents requested are not yet available in discovery. To 

Chiquita, granting access to law enforcement records through 

FOIA when the same records are not yet available in 
10

discovery necessarily confers a litigating advantage on a party 

during the discovery phase of an adversarial proceeding. 

Exemption 7(B) thus bars release of records under such 

circumstances, according to Chiquita, without regard to 

whether any advantage conferred during the pretrial process 

could impact the fairness of the trial. 

We agree with the Commission. 

A

1

“Our consideration of Exemption [7(B)]’s scope starts 

with its text.” Milner v. Dep’t of the Navy, 562 U.S. 562, 569

(2011). By its own terms, Exemption 7(B) applies only when 

the disclosure of law enforcement records would deprive a 

person of the right to “a fair trial or an impartial 

adjudication.” 5 U.S.C. § 552(b)(7)(B). It has long been 

settled that the word “trial” means the ultimate determination 

of factual and legal claims by judge or jury in a judicial 

proceeding. See, e.g., Carpenter v. Winn, 221 U.S. 533, 539 

(1911) (defining the term “trial” in a federal statute, in 

accordance with its common law definition, as “that step in an 

action by which issues or questions of fact are decided” and 

as “that final step” in a legal proceeding involving “judicial 

examination of both matters of fact and law” (internal 

quotation marks omitted)); United States v. Ray, 578 F.3d 

184, 196 (2d Cir. 2009) (“A trial resolves disputed questions 

of law and fact; it is ‘a judicial examination and determination 

of issues between parties to an action[.]’”) (quoting BLACK’S 

LAW DICTIONARY 1504 (6th ed. 1990) (internal brackets 

omitted)); 64 CORPUS JURIS Trial § 2 (1933) (“The term ‘trial’ 

contemplates a final disposition of the controversy, either on 
11

the facts or on a question of law[.]”). Assuming that Congress 

used the word “trial” in light of its long-settled meaning, we 

agree with the Commission and the Archive that Exemption 

7(B) comes into play only when it is probable that the release 

of law enforcement records will seriously interfere with the 

fairness of “that final step which is called ‘the trial.’”

Carpenter, 221 U.S. at 539. 

Chiquita asks us to disregard the phrase “fair trial” and 

focus instead on Exemption 7(B)’s protection of an “impartial 

adjudication,” 5 U.S.C. § 552(b)(7)(B), reasoning that the 

term “adjudication” applies to a decision made at any point 

during a judicial proceeding (such as discovery). But in other 

contexts, the Supreme Court and we have interpreted 

“adjudication” as it appears in FOIA by referring to the 

definition contained in the Administrative Procedure Act (to 

which FOIA belongs), where “adjudication” is defined as the 

“agency process for the formulation of an order,” 5

U.S.C. § 551(7). See NLRB v. Sears, Roebuck & Co., 421 

U.S. 132, 158 (1975); Rockwell Int’l Corp. v. U.S. Dep’t of 

Justice, 235 F.3d 598, 602 (D.C. Cir. 2001). Further, the 

Attorney General’s memorandum on the 1974 FOIA 

amendments takes the position that “adjudication” as used in 

Exemption 7(B) refers to quasi-judicial decisionmaking by

federal and state administrative agencies. DEP’T OF JUSTICE,

ATTORNEY GENERAL’S MEMORANDUM ON THE 1974

AMENDMENTS TO THE FREEDOM OF INFORMATION ACT 8-9 

(1975), reprinted in House Committee on Government 

Operations and Senate Committee on the Judiciary, Freedom 

of Information Act and Amendments of 1974 (P.L. 93-502), 

94th Cong., 1st Sess., 507, 518-19 (Jt. Comm. Print 1975); cf.

FCC v. AT&T Inc., 562 U.S. 397, 409 (2011) (describing the 

Attorney General’s memorandum as “a reliable guide in 
12

interpreting FOIA”).2 We thus think that the phrase “impartial 

adjudication” as it appears in the statute refers to 

determinations made by administrative agencies, not to 

pretrial decisions issued by a judge. Instead, Congress chose 

the language it did in Exemption 7(B) to guarantee parallel 

protections of fundamental fairness to parties involved in both 

judicial proceedings (“trial”) and administrative proceedings

(“adjudication”).

Chiquita makes the additional point that a party’s right to 

a fundamentally fair decisionmaking process can be denied 

through any number of events that happen before the trial.

Undoubtedly so. But Chiquita is wrong to urge that a slight 

advantage conferred on a party in a single phase of a case

necessarily threatens the fairness of the trial. That position 

defies the text of Exemption 7(B), which tells us to assess the

significance of any alleged unfairness in light of its effect on 

the trial and thus on the proceedings as a whole.

2

Though Chiquita insists otherwise, in Washington Post we 

applied this same standard, focusing on whether the release of 

law enforcement records would seriously interfere with the 

fairness of the proceedings as a whole. Chiquita points to a 

single sentence in our opinion where we noted the possibility 

that “disclosure through FOIA would furnish access to a 

document not available under the discovery rules and thus 

would confer an unfair advantage on one of the parties.” 863 

F.2d at 102. To Chiquita, this sentence stands for two 

propositions. First, Exemption 7(B) bars a release of law 

 2 We do not address in this case the scope of administrative 

proceedings to which Exemption 7(B) applies. 
13

enforcement records that would give one party a leg up on its 

adversary during pretrial discovery, no matter whether that 

advantage has an impact on the outcome of the trial. Second, 

an unfair advantage automatically results where the records 

requested through FOIA are, as here, not yet available 

through discovery, even though they will be discoverable 

when the time comes. But Washington Post does not support 

such a broad reading of the exemption. 

In that case, a newspaper reporter submitted a FOIA 

request to the DOJ, which was investigating allegations that 

pharmaceutical manufacturer Eli Lilly marketed an arthritis 

drug, Oraflex, to Americans while neglecting to tell regulators

or consumers that the drug had caused severe adverse 

reactions among patients overseas. In the face of pending 

product-liability and shareholder litigation, Eli Lilly 

commissioned a special committee of outside directors to 

conduct an internal investigation into the development and 

marketing of the drug and assess the company’s exposure to 

liability and its available legal options. That committee 

produced a comprehensive report that “evaluate[d] [Eli 

Lilly’s] past conduct, defenses, liabilities and potential civil 

claims against others” arising out of the Oraflex incident.

Washington Post, 863 F.2d at 100. After Eli Lilly produced 

the report to the DOJ, the Post made a request for the 

document under FOIA. The DOJ denied that request based, in

part, on Exemption 7(B). When the Post challenged this 

decision, the district court agreed with the government.

Neither the DOJ nor Eli Lilly advanced Chiquita’s theory 

that Exemption 7(B) bars disclosure when discovery has yet 

to begin. Instead, they argued that disclosing the directors’ 

report would taint potential jurors who would eventually 

decide the question of Eli Lilly’s liability for marketing 
14

Oraflex. See Eli Lilly Br. at 37 (arguing that “the Report, if 

disclosed, would receive widespread attention” and the “selfcritical statements” it contained would prove “extremely 

prejudicial” in future tort actions against Eli Lilly); Dep’t of 

Justice Br. at 44 (arguing that releasing the report would 

allow “the jury-selection process” to be “hamstrung” by 

exposing jurors to the “extensively publicized” contents). 

Although both the DOJ and Eli Lilly asserted that the 

directors’ report would be protected by the self-evaluative 

privilege and therefore unavailable to the company’s 

opponents in discovery, they did not argue that this fact alone 

would deprive the company of a fair trial. Nor did they claim 

that disclosing the report would give Eli Lilly’s adversaries an 

unfair head start at case development. Instead, they

emphasized that the concerns about prejudicing future jurors

were heightened in light of the possibility that the report 

would otherwise be permanently unavailable to the 

company’s opponents in discovery. See Eli Lilly Br. at 37

(arguing that “particularly in light of [Eli] Lilly’s privilege 

against producing the Report in civil litigation,” the company 

should not be “subjected to the possibility” of having its 

liability adjudicated “before jurors who have learned the 

contents of the Report outside the courtroom”); Dep’t of 

Justice Br. at 44 (arguing that there was “a concrete prospect 

that courts . . . may hold the report at issue privileged”). 

These arguments provide necessary context for our 

observation in Washington Post that disclosure of the report

of the outside directors, a document unavailable in discovery,

would grant the company’s adversaries an “unfair advantage” 

and thus deprive Eli Lilly of a fair trial. 863 F.2d at 102.

Contrary to Chiquita’s reading of Washington Post, we 

examined whether releasing the directors’ report would likely

cause unfairness that could affect an eventual trial, and not 
15

simply disadvantage Eli Lilly in discovery. We made clear 

that a party invoking Exemption 7(B) must show that 

disclosure would impair his right to a fair trial, not merely that 

disclosure would temporarily disadvantage him during a 

single stage of a judicial proceeding. Writing on what we 

called a “virtually clean slate,” we “fram[ed] a test” by 

focusing on “[w]hat is required to establish that production of 

a document [through FOIA] would deprive a person of a right 

to a fair trial.” Id. at 101 (emphasis added). We answered that 

question by concluding that Exemption 7(B) applies only 

where a “trial” (or “adjudication”) is pending and it is more 

probable than not that disclosure would “seriously interfere 

with the fairness of those proceedings.” Id. at 102. Applying 

that test, we emphasized that the DOJ and Eli Lilly had to 

show on remand that disclosure of the report would deprive

the company “of a fair trial.” Id.

Nor did we say in Washington Post that Exemption 7(B) 

always forbids releasing records if litigants in a pending case 

would be unable to access them (yet or ever) through 

discovery. No party in Washington Post urged us to adopt 

such a broad holding, and the arguments that were before us 

dispel any notion that we did so. Instead, we reiterated that 

FOIA exemptions are to be “construed narrowly” in favor of 

disclosure. 863 F.2d at 101. And in a case decided just months 

later, we observed that by virtue of the language Congress 

chose, FOIA allows litigants to access documents that are not 

available in discovery. North, 881 F.2d at 1099. Chiquita’s 

reading of our opinion in Washington Post instead stretches 

Exemption 7(B) far beyond its text to bar wholesale the 

release of law enforcement records whenever they are not

discoverable and regardless of whether disclosure threatens 

the fairness of the trial itself. Even further, Washington Post

involved a document that the parties argued was privileged 
16

and completely protected from discovery, not—as here—

documents that Chiquita concedes the plaintiffs might get one 

day, just not yet. 

True, we did observe that, if the special report was 

unavailable through discovery, its release “would confer an 

unfair advantage on one of the parties.” Washington Post, 863 

F.2d at 102. But that observation must be read in the context 

of the strategic magnitude of that particular report and the 

obvious unfair advantage such an important document would 

likely confer throughout an entire case if released to the Post 

and published widely to potential jurors when a jury might 

never have seen the report at all due to its privileged status. In 

short, we construed Exemption 7(B) narrowly and according 

to its text, the same way the Commission did here: to apply 

when the release of documents would likely deprive a party of 

a fair trial, not merely complicate the discovery schedule.

3

Chiquita responds that even if Exemption 7(B) protects 

only the overall fairness of a judicial proceeding, the 

Commission did not apply such a standard. We disagree. The 

Commission properly disposed of Chiquita’s arguments on 

the ground that the company could not show how disclosure 

would matter in the big picture and impact the fairness of a 

future trial.3 This is the proper legal standard under both the 

 3 In evaluating Chiquita’s claim that releasing the records 

would taint potential jurors, the General Counsel consulted the 

Supreme Court’s jurisprudence about when pretrial publicity 

adverse to a criminal defendant justifies a change in venue.

Chiquita is wrong that the General Counsel thereby held Chiquita 

had to prove that disclosure would deprive the company of its

constitutional right to a fair trial. The General Counsel merely 
17

text of Exemption 7(B) and Washington Post, and although 

the Commission’s counsel described this standard on appeal 

using a new phrase (“overall fairness”), we have never held 

that an agency on appeal is limited to reciting only the very 

words in the challenged order. The Commission observed 

correctly that Exemption 7(B) protects the right to a fair trial, 

and maintains the consistent position before us that 

Exemption 7(B) protects the overall fairness of a judicial 

proceeding of which decisionmaking at trial is the touchstone. 

B

Finally, we think the Commission reasonably applied 

Exemption 7(B) and concluded that disclosure of the records 

to the Archive will not “seriously interfere with the fairness” 

of the Florida proceedings. Washington Post, 863 F.2d at 102.

The Commission reasonably determined that Chiquita had 

not met its burden of showing how releasing the law 

enforcement records to the Archive would deprive the 

company or its officers of a fair trial. Chiquita did not explain

how any temporary head start conferred on the Florida

plaintiffs could render any trial in that litigation unfair by 

depriving Chiquita of the full and fair opportunity to present 

its case. Nor did Chiquita distinguish any momentary upper 

hand at fact-gathering gained here from any other situation in 

which one party obtains valuable information from witnesses 

and other third parties outside the formal discovery process 

while under no obligation to produce similar information to

 

found it helpful to consider the Supreme Court’s guidance in an

analogous setting. As Chiquita no longer challenges the General 

Counsel’s decision regarding pretrial publicity, we need not 

consider whether he reached the correct conclusion. 
18

its adversaries. Cf. Am. Bank v. City of Menasha, 627 F.3d 

261, 265 (7th Cir. 2010) (“The word ‘discovery’ is not a 

synonym for investigation. Much of the information gathering 

that litigants do is not ‘discovery’ as the term is understood in 

the law.”). The company did not even address whether the 

district court could easily rectify any fleeting advantage in 

information-gathering when the parties eventually meet to 

develop a formal discovery schedule. By presenting no 

argument at all to the Commission on these obvious points, 

Chiquita failed to meet its burden of showing how any 

asymmetry in information exchange could affect an eventual 

trial in the Florida litigation. Instead, the company 

erroneously rested on the legal theory that it simply had to 

show the documents sought are presently unavailable to the 

Florida plaintiffs, without showing how releasing those 

records now would impair the fairness of a future trial.

Chiquita argues that the Commission’s decision was 

nonetheless defective in light of SEC v. Chenery Corp., 318 

U.S. 80 (1943), because the agency failed to explain the 

rationale underlying its decision, and the reasons it offers now 

do not appear in the administrative record, see id. at 87 (“The 

grounds upon which an administrative order must be judged

are those upon which the record discloses that its action was 

based.”). The Commission’s rejection of Chiquita’s 

discovery-related argument was articulated only briefly and in 

a somewhat conclusory fashion, and the Commission has 

highlighted certain ways that Chiquita did not meet its burden 

that were not specifically discussed in the order under review. 

Even so, we find no violation of the Chenery principle. 

“Although it is axiomatic that we may uphold agency orders 

based only on reasoning that is fairly stated by the agency in 

the order under review . . . the contested decision need not be 

a model of clarity.” Casino Airlines, Inc. v. NTSB, 439 F.3d 
19

715, 717 (D.C. Cir. 2006) (internal brackets and quotation 

marks omitted). The Commission’s decision clears that low 

bar. The Commission’s General Counsel found that Chiquita 

had not shown how the early release of the documents would 

render discovery so one-sided as to jeopardize fairness at trial, 

and counsel for the Commission takes the same position on 

appeal. Chenery does not bar an agency’s counsel from 

merely elaborating on the consistent stance the agency 

articulated below.

Finally, Chiquita argues that the Commission failed to 

consider adequately the company’s argument that releasing 

the documents through FOIA would preclude Chiquita from 

seeking an appropriate protective order. If the documents 

were obtained through discovery instead, Chiquita notes that 

it could obtain a protective order prior to releasing the records 

to the Florida plaintiffs. That protective order would prohibit

the plaintiffs and their associates from misusing the 

documents by publicizing them, speculating as to the 

identities of their authors, or mischaracterizing their contents. 

We reject this argument. Exemption 7(B) is not a tool to 

protect reputation and privacy interests unless the damage 

disclosure might pose to such interests is likely to impact the 

ultimate fairness of a trial. Chiquita no longer claims, as it did 

below, that release of the documents through FOIA, without 

the opportunity for a prior protective order, will impair 

judicial fairness or bias potential jurors. And Chiquita has not

explained to us or the Commission how a trial in the Florida

litigation would be rendered unfair because the Archive and 
20

the public have access to these documents. Absent such a 

showing, Exemption 7(B) does not apply.

4

Chiquita points to the Supreme Court’s declaration in 

Seattle Times Co. v. Rhinehart that discovery is conducted in 

private and that members of the public have no unfettered 

right to access documents obtained through discovery. 467 

U.S. 20, 33 (1984). But Seattle Times was about discovery, 

not FOIA, and “the FOIA disclosure regime . . . is distinct 

from civil discovery.” Stonehill v. IRS, 558 F.3d 534, 538 

(D.C. Cir. 2009). “[W]hile information disclosed during 

discovery is limited to the parties and can be subject to 

protective orders against further disclosure, when a document 

must be disclosed under FOIA, it must be disclosed to the 

general public and the identity of the requester is irrelevant to 

whether disclosure is required.” Id. at 538-39. Because 

Chiquita’s objection on this score derives from the distinct 

characteristics of discovery, which are not relevant to the 

purpose or text of FOIA, it cannot succeed. 

IV

For the foregoing reasons, we affirm the judgment of the 

district court and vacate the injunction pending appeal.

 4 The General Counsel ordered the Office of FOIA Services to 

determine whether certain files should be withheld from production 

on privacy grounds and noted that the Office will redact personal 

information from all remaining records. Chiquita thus has the 

benefit of some protections for the privacy interests of its 

employees. Chiquita does not appeal those aspects of the General 

Counsel’s decision.