Good news for companies receiving FOIA requests for release of information. The Supreme Court carefully and narrowly defined what information can be deemed “confidential” and thus withheld or redacted from release.
On June 24, in a 6-2-1 decision, the U.S. Supreme Court strongly upheld the protection of Government contractor’s propriety and confidential information with respect to Freedom of Information Act requests to release such information. Since FOIA requests for proposal information are becoming a standard business practice, this strengthens protections of the incumbent or winning proposal submitter against requests. The Syllabus for the decision, Food Marketing Institute v. Argus Leader Media, states that the Court found “Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the Freedom of Information Act’s Exemption 4, “which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4) (Opinion text).
Justice Gorsuch’s opinion states, “The government suggests that an agency’s promise to keep information from disclosure may also suffice to render it confidential.” Justices Gorsuch, Roberts, Thomas, Alito, Kagan, and Kavanaugh voted in the majority: Justices Ginsburg and Sotomayor dissented; and Justice Breyer concurred in part of the decision and dissented in part.
The case involved a FOIA request from the Sioux Falls (SD) Argus Leader requesting a list of data collected by the United States Department of Agriculture (USDA) regarding the Supplemental Nutrition Assistance Program (SNAP) which in turn administers the Food Stamp Program. The Argus Leader requested the names and addresses of all retail stores that participate in the SNAP program and each store’s redemption data from Fiscal years 2005 to 2010. The USDA agreed to release the names and addresses of the participating stores, but not provide information on stores’ redemption history, citing FOIA Exemption 4. During trial it came out that the release of store-level redemption data would compromise the store’s competitive positions, as the requested data is used by retailers to locate new retail stores and determine business strategies. The court held that this was confidential data under the definitions of “confidential” in FOIA Exemption 4. What this means is that the force of law is behind the protection of financial, business process, and other data that is determined to be “confidential” and “proprietary.”
Our team at Coley GCS supports clients in proposal development and review. We always advise to mark pages accordingly on proposals, including Requests for Information (RFIs), Requests for Quote (RFQs), and Requests for Proposal (RFPs). This step is important to protect your business.
Published author with 30 years’ experience working with Federal agencies and contractors, including proposal development and project delivery.