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Throwback Thursday: Thinking about Exemption 4

FOIA Exemption 4 is open for business.

FOIA Exemption 4 is open for business.

We get many requests for assistance related to FOIA Exemption 4, which protects from disclosure commercial and financial information provided to the government. For example, over the last few months we have heard from requesters frustrated about delays related to submitter notice and an agency interested in brainstorming how best to communicate with the entities that provide them with information.

Nearly two years ago, we shared some tips on Exemption 4 gathered at a discussion we hosted with the Department of Justice’s Office of Information Policy. We thought it would be worth revisiting that information.

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.

If you have any tips for working with Exemption 4, we’d love to hear them. Please drop us a line!