{"database": "openregs", "table": "crs_reports", "rows": [["LSB11481", "Standing to Sue for Informational Injuries", "2026-09-14T04:00:00Z", "2026-09-15T11:23:05Z", "Active", "Posts", "Peter J. Benson", null, "Some statutes authorize private parties to file a lawsuit seeking information. The Freedom of Information Act (FOIA) is a prominent example. FOIA provides that federal agencies \u201cshall make available to the public [certain] information,\u201d and it grants federal courts \u201cjurisdiction to . . . order the production of any agency records improperly withheld.\u201d According to the Department of Justice (DOJ), members of the public file hundreds of FOIA lawsuits each year. \nCourts have described lawsuits brought under FOIA and similar laws as suits that \u201cseek[] to vindicate a statutory right to information.\u201d Even when Congress creates a right to information, though, a private party who files a lawsuit in federal court must meet the standing requirements imposed by Article III of the U.S. Constitution. One of those constitutional requirements is that the party suing has to have suffered a concrete injury. Suits to enforce informational rights therefore require courts to decide when the \u201cdenial of information\u201d amounts to a sufficiently concrete injury to support constitutional standing. \nThat question has divided the federal courts of appeal (i.e., created a \u201ccircuit split\u201d). Some courts have held that a plaintiff alleging an informational injury must \u201cassert downstream consequences\u2019\u201d that result from the denial of information, causing harm to the plaintiff. Other courts have held that a plaintiff need only allege that they did not receive \u201cinformation which must be publicly disclosed pursuant to a statute.\u201d For the latter group of courts, no additional injury is required.\nThis Legal Sidebar analyzes the circuit split. It begins with a discussion of cases in which the Supreme Court has found standing to sue for informational injuries. It then analyzes more recent Supreme Court case law that addresses Article III\u2019s concrete injury requirement, and it describes how courts have applied the recent case law in informational injury cases. The Sidebar concludes by examining some considerations for Congress.\nBackground on Standing for Informational Injuries\nUnder Article III, federal courts can resolve only \u201ccases\u201d and \u201ccontroversies.\u201d To establish that a case or controversy exists in any private lawsuit, the plaintiff bringing the suit must establish (1) that they suffered an actual or imminent, concrete, and particularized injury (2) that was likely caused by the defendant and (3) that would likely be redressed by judicial relief.\nCurrent law makes clear that plaintiffs asserting informational injuries can satisfy these standing requirements in some cases. In 1989, the Supreme Court decided that the plaintiffs in Public Citizen v. Department of Justice had standing to bring a lawsuit against DOJ and the American Bar Association (ABA) under the Federal Advisory Committee Act (FACA). FACA imposes certain requirements on \u201cadvisory committees\u201d that offer advice or recommendations to the federal government. Among other things, covered advisory committees must make available to the public records, reports, meeting minutes, and other documents. In Public Citizen, the plaintiffs alleged that DOJ solicits advice from the ABA when making judicial nominations. They asked the court to declare that DOJ\u2019s use of the ABA\u2019s advice is covered by FACA and to order DOJ and the ABA to comply with FACA\u2019s disclosure requirements. \nThe ABA argued that the plaintiffs lacked standing to bring their suit, but the Supreme Court rejected the argument. \u201cRefusal to permit appellants to scrutinize the ABA Committee\u2019s activities to the extent FACA allows,\u201d the Court explained, \u201cconstitutes a sufficiently distinct injury to provide standing to sue.\u201d The Court compared the injury underlying plaintiffs\u2019 FACA claim to the type of injury that permits courts to decide a FOIA case: \u201cOur decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records. . . . There is no reason for a different rule here.\u201d\nIn a later case, Federal Election Commission v. Akins, the Supreme Court held that certain voters had standing to challenge the Federal Election Commission\u2019s decision that an organization was not subject to disclosure requirements applicable to \u201cpolitical committees.\u201d Again, the Court\u2019s injury inquiry turned on access to information. According to the Court, the voters\u2019 \u201cinjury in fact\u2019 . . . consists of their inability to obtain information\u201d\u2014such as donor lists and campaign-related expenditures\u2014that, they allege, federal law \u201crequires [to be] public.\u201d\nIn both Public Citizen and Akins, therefore, the Supreme Court held that denial of information can give rise to standing.\nSpokeo, Inc. v. Robins & TransUnion LLC v. Ramirez\nIn 2016 and 2021, the Supreme Court decided two cases that clarified which types of injuries are sufficiently \u201cconcrete\u201d to satisfy Article III\u2019s injury requirement. In the 2016 case\u2014Spokeo, Inc. v. Robins\u2014the Court explained that, for intangible harms, Congress creating a statutory cause of action does not necessarily mean persons aggrieved by violations of the statute suffer a concrete injury that satisfies Article III. The Court said Congress\u2019s \u201cjudgment is . . . instructive and important.\u201d Courts should, however, also \u201cconsider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit\u201d when evaluating whether a plaintiff has suffered a concrete harm. As a result, \u201ca bare procedural violation\u201d of a statute \u201cdivorced from any concrete harm\u201d does not satisfy Article III, but a statutory violation coupled with \u201cthe risk of real harm\u201d can give rise to standing. \nIn TransUnion LLC v. Ramirez, decided in 2021, the Supreme Court applied these principles to a class of plaintiffs who alleged that a credit reporting agency \u201cfailed to use reasonable procedures to ensure the accuracy of their credit files.\u201d The plaintiffs claimed this procedural failure violated the Fair Credit Reporting Act (FCRA), and a jury returned a verdict in their favor. The Supreme Court, however, determined that only some members of the plaintiff-class had standing to bring their claims. Reiterating that \u201cArticle III standing requires a concrete injury even in the context of a statutory violation,\u201d the Court analyzed the extent to which the credit reporting agencies\u2019 failure to use accuracy-ensuring procedures harmed the members of the plaintiff class. The Court then asked whether the harms had \u201ca close relationship\u2019 to a harm traditionally recognized as providing a basis for a lawsuit in American courts.\u201d\nFor some TransUnion class members, inaccurate credit reports had been disseminated by the reporting agency to third parties. As a result of these disclosures, the third parties received credit reports erroneously \u201ccontaining OFAC alerts that labeled the class members as potential terrorists, drug traffickers, or serious criminals.\u201d The Court held that these plaintiffs \u201csuffered a harm with a close relationship\u2019 to the harm associated with the tort of defamation\u201d and that defamation is traditionally recognized as a basis for a lawsuit. These class members, the Court concluded, suffered concrete injuries and had standing to bring their claims.\nFor the remaining class members, the defendant credit reporting agency maintained, but did not disseminate, credit reports with false information. Defamation generally requires publication of the defamatory information. Maintaining credit reports internally did not, therefore, bear the same close relationship to defamation as disseminating false reports, the Court said. Instead, \u201cthe mere existence of inaccurate information in a database\u201d had \u201cno historical or common-law analog.\u201d Even if maintaining false reports violated the FCRA, the Court concluded, the class members whose reports were never disseminated had not suffered a concrete injury that could \u201cconfer Article III standing.\u201d\nInformational Injuries After TransUnion\nIn TransUnion, the Supreme Court did not overrule Public Citizen or Akins. It distinguished both informational injury cases for three reasons. First, the Court explained, the plaintiffs in TransUnion \u201cdid not allege that they failed to receive any required information,\u201d so they were not asserting the kind of injury that was at issue in Public Citizen or Akins. Second, Public Citizen and Akins \u201cinvolved denial of information subject to public-disclosure or sunshine laws that entitle all members of the public to certain information.\u201d The FCRA, at issue in TransUnion, is not in the Court\u2019s view a \u201cpublic-disclosure law.\u201d Third, the Court wrote, the TransUnion plaintiffs \u201cidentified no downstream consequences\u2019 from failing to receive the required information. . . . They did not demonstrate, for example, that the alleged information deficit hindered their ability to correct erroneous information before it was later sent to third parties.\u201d As a result, Public Citizen and Akins remain good law that binds lower courts, but neither case governed the standing analysis in TransUnion.\nWhen deciding informational injury cases after TransUnion, however, courts of appeals have disagreed about how to apply the Supreme Court\u2019s reasons for distinguishing Public Citizen and Akins. As the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) explained, \u201cThe downstream consequences\u2019 sentence\u201d in TransUnion, \u201cseems ambiguous.\u201d On the one hand, \u201cit might be read to reference only a defect in the TransUnion plaintiffs\u2019 claims of injury but not to include the sunshine laws\u2019 covered by Akins and Public Citizen.\u201d On the other hand, \u201cit could be deemed a defect in that theory even if applied to Akins and Public Citizen.\u201d In other words, did the TransUnion Court mean plaintiffs must assert either a violation of a sunshine law or downstream consequences to establish standing? Or did the Court mean that all plaintiffs alleging informational injuries must have suffered downstream consequences to have standing?\nOne circuit split on this issue involves the public disclosure provision of the National Voter Registration Act of 1993 (NVRA). The NVRA requires, among other things, that states must disclose certain information related to their maintenance of voter lists, when requested to do so. The statute also includes a private right of action that applies to persons who are \u201caggrieved by a violation\u201d of the NVRA.\nAfter TransUnion, the Fifth Circuit held that a plaintiff has standing to sue for disclosure of information under the NVRA only if that plaintiff \u201ccan assert downstream consequences\u2019\u201d from the failure to disclose required information. The Fifth Circuit interpreted TransUnion as \u201cgenerally reject[ing] . . . an unlimited informational injury\u2019 approach to standing.\u201d Instead, in the Fifth Circuit\u2019s view, plaintiffs must assert downstream consequences to show a sufficient injury \u201ceven in public disclosure-based cases\u201d like Public Citizen and Akins. The U.S. Court of Appeals for the Third Circuit adopted a similar interpretation of TransUnion in an NVRA case, holding that \u201ca plaintiff asserting an informational injury\u201d must, after TransUnion, \u201cestablish a nexus among a downstream consequence, his alleged harm, and the interest Congress sought to protect.\u201d The U.S. Courts of Appeals for the Sixth Circuit (Sixth Circuit) and Eighth Circuit followed suit.\nThe U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) has applied the alternative interpretation of TransUnion\u2019s reasoning to the NVRA. Rejecting the Fifth Circuit\u2019s view \u201cthat TransUnion established an adverse effects\u2019 or downstream consequences\u2019 requirement for all informational injuries,\u201d the Ninth Circuit held that the \u201ctotal denial of information under a sunshine statute, as in Akins and Public Citizen, is itself already a concrete injury in fact.\u201d In TransUnion, the Ninth Circuit explained, the Supreme Court was addressing multiple standing theories. The Supreme Court addressed downstream consequences \u201conly after [it] had concluded that Akins and Public Citizen did not control\u201d because, in the Ninth Circuit\u2019s view, asserting a violation of a public disclosure law and asserting adverse effects are two distinct ways a plaintiff can establish standing. The disclosure provision in the NVRA is \u201ca sunshine provision,\u201d the Ninth Circuit concluded, so plaintiffs asserting a violation of it \u201cneed not allege any additional harm\u201d beyond the denial of information \u201cto establish Article III standing.\u201d\nThis disagreement about how TransUnion\u2019s reasoning applies to informational injuries has also played out across other causes of action. The Sixth Circuit, for example, has held that a party lacked standing to intervene in a securities fraud suit to seek the disclosure of documents because \u201cthe mere denial of information is insufficient to support standing.\u201d The U.S. Court of Appeals for the Fourth Circuit, on the other hand, decided that a plaintiff had standing to sue under Title III of the Americans with Disabilities Act and explained that \u201cthe need for downstream consequences\u2019 and adverse effects\u2019 . . . does not extend to the type of informational injury presented in Public Citizen and Akins.\u201d \nAs a result of this circuit split, whether or not a plaintiff must establish standing by alleging downstream consequences caused by the denial of information covered by a public disclosure law currently varies depending on the circuit in which the plaintiff filed the lawsuit.\nConsiderations for Congress\nArticle III\u2019s standing requirements apply whenever a plaintiff brings a lawsuit under a statutorily authorized private right of action, and Congress does not have the power to change the constitutional requirements through legislation. Congress does, however, have several options for addressing the constitutional injury requirement in statutes about informational rights. \nFirst, Congress could incorporate an injury requirement into the elements of any new private right of action. The Privacy Act, for example, provides a right of action for certain statutory violations when the violations \u201chave an adverse effect on [the] individual\u201d suing. The Supreme Court has explained that the \u201cthe reference in [the Privacy Act] to adverse effect\u2019 acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing.\u201d \nSecond, Congress could authorize lawsuits in state courts. State courts are not bound by Article III\u2019s standing limitations and may hear many suits brought under federal causes of action. Plaintiffs who have not suffered a concrete injury under TransUnion may still be able to file suits in certain state courts.\nThird, instead of providing a private right of action to enforce an informational right, Congress could authorize a federal agency to bring enforcement actions. Courts have held that the government does not \u201cneed[] a concrete interest to establish its standing to sue on behalf of the public.\u201d \nFederal agency enforcement and state court suits may, however, be less effective when the informational right at issue is a right to compel federal officers or agencies to disclose information, such as the informational rights provided in FOIA. Federal agencies rarely sue other federal agencies (although courts do consider such suits justiciable in certain circumstances). In addition, state courts\u2019 authority to enjoin federal officers is \u201cunsettled.\u201d Commentators have suggested that that the question raises a \u201cwhole panoply of difficulties\u201d and characterize the issue \u201ccomplicated\u201d and \u201cthorny.\u201d \nFourth, Congress could wait for additional litigation. Future cases could provide more insight about how difficult it will be for plaintiffs to establish \u201cdownstream consequences\u201d from informational injuries. In the Fifth Circuit\u2019s decision holding that plaintiffs asserting informational injuries must assert downstream consequences, one judge wrote separately to suggest that \u201cTransUnion may not ultimately prove all that difficult for plaintiffs who wish to assert their statutory rights to public information.\u201d That judge found it \u201chard to imagine a plaintiff who is willing to go through the trouble to file a lawsuit to obtain public information\u2014yet is unable to attach a simple affidavit noting why the plaintiff needs that information.\u201d The Sixth Circuit\u2019s explanation of why, in its view, the plaintiffs in Public Citizen and Akins \u201chad suffered adverse effects\u201d may suggest that circuit\u2019s required showing is also not a high bar. According to the Sixth Circuit, the plaintiffs in those cases \u201cwere denied information that would have helped them evaluate candidates for public office\u2019\u201d or \u201cparticipate more effectively in the judicial selection process.\u201d Plaintiffs asserting informational injuries may be able to articulate similar consequences in many cases. \nThat does not mean that all plaintiffs will necessarily clear the bar. In an NVRA case, a different Sixth Circuit panel held that the plaintiff organization\u2019s allegations about downstream consequences\u2014that the defendant\u2019s failure to produce requested records prevented the organization from \u201cengaging in its research, educational, and remedial activities\u201d and \u201cimpaired the accumulation of institutional knowledge\u201d\u2014were insufficient. These downstream consequences, the court said, were not specific enough to establish standing. More information about which injuries will and will not satisfy the standing requirement in circuits that require downstream consequences to assert violations of sunshine laws may be fleshed out in additional litigation.", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11481/LSB11481.1.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11481.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11481"], "units": {}, "query_ms": 0.2835630439221859, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}