By Leon Stern

The Freedom of Information Act (“FOIA”) allows members of the public to obtain information from the government that cannot be obtained by normal means.[1]  While this is a general rule, there are some exceptions. One exception is that disclosure is not required for “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”[2]  The Supreme Court recently provided a different interpretation of when information is to be treated as “confidential” under FOIA in Food Marketing Institute v. Argus Leader Media.[3]  This case came before the court when a newspaper requested Supplemental Nutritional Assistance Program, commonly known as SNAP, redemption data from the United States Department of Agriculture.[4]  The Supreme Court ruled that information is to be treated as confidential under Exemption 4 to FOIA so long as there is an express or implied assurance of privacy from the government.[5]

As a result of this decision, the Supreme Court abrogated the D.C. Court of Appeals opinion which included an additional test that government contractors or other businesses who provide information to the government must meet in order to get Exemption 4 protection.[6]  This recent decision has provided a substantial benefit to businesses, but not everyone has agreed with the court abandoning the substantial harm test when applying FOIA.[7]  Prior to the Court adopting this new standard in Argus, the D.C. Court of Appeals applied the substantial harm test which required that the person claiming FOIA Exemption 4 protection show that public disclosure of such information is likely to cause substantial harm to his competitive position.[8]  If a party could meet the standard under this test, then the information is treated as confidential.[9]  Many businesses and contractors were excited to hear that the Supreme Court abandoned this old test and were expanding protections for contractors under FOIA.[10]

Where the elimination of the substantial harm test provides an additional layer of protection for contractors, it cuts against the original purpose of FOIA which was to “permit access to official information long shielded unnecessarily from public view” and to “create a judicially enforceable right to secure such information from possibly unwilling official hands.”[11]  As stated in Breyer’s dissenting opinion in Argus, the complete abandonment of a harm analysis effectively cuts off the public’s right to information and treats it as exempt under FOIA so long as the government and private party agree.[12] Even though this can prevent competing contractors from obtaining sensitive information on their competitors through FOIA requests, it limits the access from the media and the public.[13] Moving forward, legislatures should adopt a similar standard as proposed by Breyer and require that some showing of harm be required in order to effectively strike a balance between the public’s right to information and a private businesses interest in protecting its trade secrets or otherwise confidential information.

[1] See 5 U.S.C. § 552 (a)(3)(A) (2016) (“each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”).

[2] See 5 U.S.C. § 552 (b)(4) (2016).

[3] 139 S. Ct. 2356 (2019).

[4] Id. at 2360.

[5] Id. at 2366.

[6] See Nat. Parks and Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. 1974) (illustrating the test for substantial harm that businesses needed to show in order to qualify for Exemption 4).

[7] See Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (Breyer, J., Concurring in part, Dissenting in part).

[8] See Nat. Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. 1974).

[9] Id. at 771.

[10] See Holland & Knight, The Supreme Court Expands Contractor FOIA Protection — with a Caveat, Jdsupra (July 17, 2019), (explaining how contractors struggled to meet the substantial harm test and how its elimination by the Supreme Court provided additional protections for contractors).

[11] See Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2368 (2019) (Breyer, J., Concurring in part, Dissenting in part) (explaining the underlying purpose of FOIA and the protections it provides to the public).

[12] Id. (stating how parties can effectively keep information private if the entity and the government wish it).

[13] See Thomas P. Hubert, Supreme Court Expands Confidentiality Protections for Private Companies, The National Law Review (July 1, 2019), (explaining that this expansion of FOIA can prevent competing contractors from accessing competitors information through FOIA requests); Mark Fenster, Opinion Analysis:  Court Gives Broad Meaning to “Confidential” in FOIA Exemption for Commercial and Financial Information, Scotusblog (June 24, 2019), (explaining how there is potential for this expansion to deny access to the media).

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