The Supreme Court in Food Marketing Institute v. Argus Leader Media, No. 18-481 (U.S. June 24, 2019) recently relaxed the standard for withholding confidential information under Exemption 4 of the Freedom of Information Act (“FOIA”)—a major win for contractors that regularly submit sensitive business information to the government...To take full advantage of the Court’s holding, companies doing business with the government should keep in mind the following practical tips:
- Carefully document all efforts to keep information private.* This includes updating internal policies on maintaining the confidentiality of company records, increasing security features limiting access to certain sensitive data, and providing additional training to employees on how to properly handle confidential business information.
- In submissions to the government, clearly indicate which information is to be kept confidential. This includes marking the data with a protective legend identifying it as subject to Exemption 4 protection. Be aware that certain statutes and regulations may require specific language to be used.
- To the extent possible, obtain written assurances from the agency that the information will be kept confidential and will not be released to third parties absent the contractor’s consent. Contractors may also be able to negotiate contractual provisions protecting the data to be submitted to the government. more
