FMI v. Argus Leader Media — Supreme Court Broadens Scope of FOIA Exemption: Court Holds That, Under FOIA, the Federal Government May Not Disclose Commercial Information That a Corporation Has Kept Private and Provided to the Government Under an Assurance of Privacy

Sullivan & Cromwell LLP - June 25, 2019

Yesterday, in a widely watched federal Freedom of Information Act (“FOIA”) case, the U.S. Supreme Court held that commercial information submitted to the federal government qualifies as “confidential” under Exemption 4 when, at a minimum, it is “actually” and “customarily” “kept private” and the federal government provides assurances to the submitter that the information will be maintained in confidence. This standard rejects the rule developed in the D.C. Circuit, and subsequently adopted by multiple other circuits, which required a showing that the federal government’s disclosure of the information would likely inflict “substantial competitive harm” on the submitter to qualify for this exemption. The new test affords greater protection to commercial information submitted to the federal government and may reduce the cost of opposing requests for disclosure by eliminating the need to prove competitive harm.