As you may have heard, on June 24, 2019, the U.S. Supreme Court issued an opinion on a case involving the “privileged or confidential” requirement of FOIA Exemption 4, Food Mktg Inst. v. Argus Leader Media, 139 S. Ct. 915 (June 24, 2019). Exemption 4 protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” and is intended to protect the interests of both the government and submitters of information. The exemption covers two distinct categories of information in federal agency records: (1) trade secrets; and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential.The Argus Leader decision overturned the definition of “confidential” in Exemption 4 established by the U.S. Court of Appeals for the D.C. Circuit over forty years ago in Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Agency FOIA programs, as well as requesters seeking information that may be affected by Exemption 4, have eagerly awaited guidance from the U.S. Department of Justice’s Office of Information Policy (OIP) on how Exemption 4 should now be analyzed and applied in the wake of the Supreme Court’s decision.
On October 4, 2019, OIP issued their updated guidance. OIP also issued a step-by-step guide to further assist agencies in determining if commercial or financial information obtained from a person is confidential under the new standard of Exemption 4. Previous case law set forth various tests for what material is considered “confidential.” In Argus Leader, the Supreme Court stressed that the term “confidential” should be given its ordinary meaning. OIP’s step-by-step guide helps agencies think through the various issues that arise under this new analysis.
First, agencies must check whether the submitter customarily keeps the submitted information private or closely-held. This can be determined by checking directly with the submitter, or, in situations where there are a large number of submitters and it would be difficult to check with each submitter individually, looking at industry practices concerning the information. If the answer is no, the information is not confidential. If the answer is yes, then we move to the second step in the analysis.
Next, agencies need to ask whether they provided an express or implied assurance of confidentiality when the submitter shared information with the government. “Express” assurance, per OIP’s guidance, “can be found in direct communications with the submitter, as well as through general notices on agency websites or … through regulations indicating that information will not be publicly disclosed.” If express assurance is found, then the information is confidential. In the same vein, if the agency provides explicit notification that the submitted information will be publicly disseminated, no express assurance of confidentiality exists.
For “implied” assurance, OIP recommends that agencies “look to the context in which the information was provided to the government to determine if there was an implied assurance of confidentiality.” For example, if the government typically keeps the submitted information confidential, or more broadly treats information related to the submitted information confidentially, there could be an implied assurance of confidentiality. OIP provides an example: an agency’s long history of treating financial information confidentially could create the implied assurance that similar financial information will also receive confidential treatment. Similarly, if agencies have a long history of publicly disseminating the information submitted, it would not be reasonable for a submitter to expect that its information would be held confidentially.
As agencies put this guidance into practice, we expect many questions will arise. Agencies may contact OIP’s FOIA Counselor Service with any questions regarding this new Exemption 4 guidance. As always, FOIA requester service centers and FOIA Public Liaisons are available to assist with pending requests, as is OGIS! Agency contact information is available on FOIA.gov.