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Tips on Getting Down to Business

FOIA’s Exemption 4 protects from disclosure commercial and financial information provided to the government by individuals and a wide range of entities – from corporations and banks to Native American tribes. The idea is to safeguard certain private business records in government files.

About two dozen representatives of the agency and requester communities participated in a lively roundtable discussion Wednesday about such contractor and business-related records.  Although Exemption 4 addresses several potential harms from disclosure, competitive harm to business entities was the focus of the discussion, hosted by OGIS and the Office of Information Policy (OIP), Department of Justice (DOJ).

OGIS gleaned from the discussion some tips for agencies (and a couple for requesters and submitters, too) when dealing with contractor and other business-related records.

First, a little context: when FOIA requesters seek such records, submitters are notified and given an opportunity to review the information requested to determine whether any of it may need to be shielded from release to avoid harm. That means trying to justify why an agency should withhold information by articulating the competitive harm that could result from release. For requesters, that stretches the response time. Agency FOIA professionals, who make the final decision on disclosure, are often caught in the middle.

Tips for agencies:

  • The Defense Logistics Agency (DLA) proactively states, as part of contracts that it awards, that the information in the contract is releasable under FOIA unless the contractor opts out, which happens very rarely. That could serve as a model for other agencies.
  • Another idea: require submitters to give to the agency a redacted copy of a contract, so that the submitter has considered the issues up front. Of course, to release it under FOIA, the agency still must review the redactions, but this gives a head start in a draft that the agency can take back to the submitter as a starting point.
  • DOJ advises not making the submitter file a FOIA request for the name of the requester. Though it’s rare, it does happen that a FOIA request sparks independent conversation between the requester and the submitter, and everything’s worked out outside of FOIA land.
  • A FOIA attorney at the Department of the Air Force compiled a list of questions to ask submitters to consider and answer when justifying why the information should be withheld. That helps the submitter articulate how release would likely cause competitive harm and helps the agency better determine whether that standard is met.
  • One agency FOIA professional suggests searching online for the information the requester seeks and the submitter wishes to keep shrouded. Sometimes, you’ll find it’s already public, for example, in the submitter’s annual report.
  • In final agency release determination letters, if the agency determines that the submitter has met the competitive harm standard, then explain that the submitter has objected and why.

Tips for requesters:

  • It’s difficult enough for many agencies to meet the 20-day statutory response time. Add submitter notice to the mix, and it’s all but impossible, so a little patience might be in order.
  • Reach out to the FOIA professional. Explaining exactly what information you seek might help narrow the request – and potentially shorten the response time.

Tips for submitters:

  • Focus the competitive harm argument on each record or subject at issue. Keep the argument direct and concise, and explain precisely how you could be harmed by potential competition.
  • Understand that you become a party to any potential FOIA lawsuit over withholding of these records and you will need to declare, under penalty of perjury, the competitive harm that would likely result.