Jenner & Block

Client Alert: "Contemplating Confidentiality: The Supreme Court Eases the Test for FOIA Protection of Private Documents"

Many private parties—companies and individuals alike—provide information to the federal government believing that the government will maintain confidentiality of those documents.  But much of the federal government is subject to the Freedom of Information Act (FOIA), which requires the government to make information in its possession available to the public upon request.  As is true with almost every rule, FOIA’s disclosure requirement has exceptions.  One of those exceptions—also known as an exemption from disclosure—is Exemption 4, which shields from public disclosure information a private party provides to the government if the information amounts to “trade secrets and commercial or financial information” that is “privileged or confidential.”  A critical question around Exemption 4 is what it means for information to be “confidential.”