As we’ve discussed here before, there is significant tension between government’s duty to give the public access to its records, and the desire of those who deal with the government to keep some of their information confidential. Yesterday, confidentiality won. In a 6-3 decision, the Supreme Court overturned the Eighth Circuit’s decision in Food Marketing Institute v. Argus Leader Media and held that the government (or those that deal with it) only need to show that records are actually “confidential” to exempt them from the Freedom of Information Act (FOIA). In doing so, the Supreme Court overruled the Eighth Circuit’s (and D.C. Circuit’s) more restrictive previous test, which required an additional showing of a likelihood of substantial harm from the information’s disclosure. As now clarified by the Supreme Court, “where commercial or financial information is both customarily and actually treated a private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of [FOIA] Exemption 4.”
This expansion of FOIA’s confidential information exemption will make it easier for those who deal with the government to protect their competitive information. But there are still traps for the unwary when providing such information, and laying the foundation for such protection still takes forethought and action (and state and local governments are subject to different rules). So if you are bidding on or working on a government contract, or otherwise providing information to the government, make sure you take the steps ahead of time to protect your confidential information. And if you don’t know how to do that, we’re here to help.