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.
Continue Reading DOJ Step-by-Step Guidance to Determine if Trade Secrets are Confidential Under the Freedom of Information Act (FOIA)

Pennsylvania’s medical marijuana bill went into effect in 2016. In order to obtain a permit under that bill, potential medical marijuana grower/processors or dispensaries are required to provide detailed business information with their applications. However, under the state’s Right-to-Know Law (“RTKL”), applicants who can show that information about their security, storage and transportation are trade

In Food Marketing Institute v. Argus Leader Media, the Supreme Court strengthened the federal government’s ability to protect trade secrets and confidential business information from disclosure in response to a Freedom of Information Act (“FOIA”) request. Food Mktg. Inst. v. Argus Leader Media, __ U.S. __, 139 S. Ct. 2356, 2366 (June 24, 2019). Under the facts of that case, the Court held that where the government received a third-party’s commercial and financial information and this information was treated confidentially, the information was exempt from disclosure and the government could not disclose it in response to a FOIA request. Many predict that this decision, which we previewed earlier this year, will help protect companies that provide sensitive information to government agencies and make it more difficult for the general public (including journalists and competitors) to access this information.
Continue Reading Supreme Court Weighs In On Protecting Trade Secrets and Confidential Information From FOIA Requests