On October 7, 2019, the U.S. Department of Justice (“DOJ”) issued a Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA. The Step-by-Step Guide is used by agencies, in conjunction with guidance from the Office of Information Policy (“OIP”) to determine whether commercial or financial information provided by a person is “confidential” under FOIA Exemption 4. FOIA Exemption 4 protects trade secrets and commercial information that is privileged or confidential. The DOJ Guidance is another tool that can be used by practitioners to determine when information must be disclosed under a FOIA Request.
The DOJ Guidance followed on the heels of the Supreme Court’s decision in in Food Marketing Institute v. Argus Leader Media (described in a previous blog post) where the Supreme Court addressed the question of “when does information provided to a federal agency qualify as confidential.” The Supreme Court held that information is confidential and protected if: (1) the information is “customarily kept private, or at least closely held” and (2) where the receiving party provides “some assurance” that the information will be kept secret.
The DOJ Guidance outlines three questions to help determine if information is confidential under FOIA Exemption 4.
- Does the submitter customarily keep the information private or closely-held? (This inquiry may in appropriate contexts be determined from industry practices concerning the information.
- If no, the information is not confidential under Exemption 4.
- If yes, answer question 2.
- Did the government provide an express or implied assurance of confidentiality when the information was shared with the government?
- If no, answer question 3.
- If yes, the information is confidential under Exemption 4 (this is the situation that was present in Argus Leader).
- Were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
- If no, the information is “confidential” under Exemption 4 (the government has effectively been silent – it hasn’t indicated the information would be protected or disclosed – so a submitter’s practice of keeping the information private will be sufficient to warrant confidential status).
- If yes and no other sufficient countervailing factors exist, the submitter could not reasonably expect confidentiality upon submission and so the information is not confidential under Exemption 4.
FOIA Request responses remain tricky to navigate especially when trade secret information is involved. Although short, the DOJ Guidance provides yet another tool to assist practitioners in navigating the pitfalls of FOIA Requests.