On November 24, 2020, the U.S. District Court for the District of Columbia denied the Small Business Administration’s (SBA) motion to suspend publication of the names, addresses, and exact loan amounts for borrowers who received loans approved under the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loans (EIDL) program, and the court ordered SBA to publish this information by December 1, 2020. This gives SBA only one week to appeal and apply for administrative residency in the United States of Appeals Court for the District of Columbia Circuit. Unless the SBA obtains a suspension from the DC Circuit, the District Court ruling could result in the loan information requested by various media organizations under the Freedom of Information Act (FOIA) being published as early as December 1, 2020.
In WP Co. LLC v US minibus. Administrator., No. CV 20-1240, has submitted FOIA inquiries for a wide range of initial PPP loan dates from a number of news organizations. Like Crowell did previously reported, the SBA has provided some of the requested data but withheld the exact amounts of all loans of $ 150,000 or more and the identity of the beneficiaries for loans below that number under FOIA exemptions 4 and 6. FOIA Exemptions 4 and 6 protect (1) privileged or confidential business or financial information obtained from an individual and (2) information the disclosure of which would constitute a clearly unjustified invasion of privacy. On November 5, the court granted news agency requests for a summary judgment, ruling that the SBA must supplement its prior disclosure with the names, addresses and exact loan amounts of all PPP borrowers. See 2020 WL 6504534 (DDC 05.11.2020). SBA decided to uphold this ruling.
In examining the four factors related to a stay of pending appeals, the Court found that the case was a new application of FOIA exceptions 4 and 6 and raised “serious legal issues” and that “once the information was released The court also recognized that “stays are frequently granted in FOIA cases,” again due to the fact that once the information is disclosed, there is an option to oppose publication to appeal the information.
Nonetheless, the court decided to distinguish the “public” interest in disclosure from the “state” interest in securing sensitive information in this case for disclosure and found that there was a “strong public interest in disclosure” of the full list of borrowers and accurate loan amounts to facilitate a “meaningful assessment” of government activities in the management of the PPP program. The court ruled that the immediate publication of the information was warranted, rather than awaiting the completion of the SBA’s appeal, and despite recognizing that the publication could have the effect of the SBA’s appeal to facilitate and “a critical, ongoing federal debate.” Failure in the loan disbursement process is progressing. “
SBA will likely seek a stay at the DC Circuit before the information is released on December 1st.