Insight Into Recent Supreme Court Oral Argument Regarding "Confidential" Information Under

The below article provides insight into a recent Supreme Court oral argument regarding Freedom of Information Act ("FOIA") Exemption 4. Food Marketing Institute v. Argus Leader Media (No. 18-481).

Under FOIA, Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Though Food Marketing involves the confidentiality of sales figures from SNAP-participating[1] grocery stores, it is also a noteworthy case for government contractors due to the confidential and sensitive of information that contractors regularly submit to various federal agencies for government contracting purposes. [2]

Currently, a number of federal circuit courts have departed from the plain meaning of "confidential" and require a "submitter" (a business whose confidential information is at issue) to prove that it will likely suffer a substantial competitive harm as a result of the disclosure in order to fall under FOIA Exemption 4. See Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (holding that information is confidential where disclosure is likely to cause "substantial harm to the competitive position" if it is disclosed).

In Food Marketing, however, the petitioners first ask the Court whether "confidential" bears its ordinary meaning, thereby protecting the information regardless of whether substantial competitive harm is shown. In the alternative, should the Court retain the substantial competitive harm test, the petitioners want to know what type of evidence/information is needed to satisfy the test.

Notably, should the Court rule that "confidential" bears its its ordinary meaning, it would be a victory for submitters. That is, by adopting the ordinary meaning of confidential, submitters will no longer need to prove––e.g., with affidavits and other documentary evidence––that it will likely suffer a substantial competitive harm if the information is disclosed.

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SCOTUSblog Article: Argument analysis: Justices appear likely to endorse broader reading of FOIA exemption for “confidential” commercial information

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[1] Supplemental Nutrition Assistance Program ("SNAP").

[2] See, e.g., Northrop Grumman Systems Corp. v. NASA, 346 F. Supp. 3d 109 (D.D.C. 2018) (protecting line-item pricing from disclosure under Exemption 4.)

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