Exemption 4 of the Freedom of Information Act (FOIA) exempts from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). For decades, the courts of appeals have interpreted “confidential” “commercial information” to cover information the disclosure of which is likely either to “cause substantial harm to the competitive position of the person from whom information was obtained” or to “impair the Government’s ability to obtain necessary information in the future.” In this case, Food Marketing Institute (FMI) asks the Supreme Court to overturn this uniformly accepted definition and to hold that exemption 4 covers all information that is “kept private and not publicly disclosed.”
In an amicus brief, we argue that the statutory context of exemption 4 specifically and FOIA as a whole supports the long-accepted interpretation. Our brief also identifies examples of vital public health and safety information obtained and used by Public Citizen and others through agency disclosure under FOIA of information submitted by non-governmental entities that would be at risk of nondisclosure under FMI’s broad reading of the exemption. In addition, the brief explains that the longstanding standard is sensible and workable, appropriately reflecting the balance struck by Congress between broad disclosure and narrow exemptions.
On June 24, 2019, the Supreme Court reversed the decision of the U.S. Court of Appeals for the Eighth Circuit. In doing so, the Court rejected the longstanding definition of “confidential” information under exemption 4 applied by courts of appeals and held that information is “confidential” for purposes of exemption 4 if it is (1) both customarily and actually treated as private by its owner and (2) provided to the government under an assurance of privacy.
See the complete Supreme Court docket for this case here.