Protecting Financial/Trade Secret Information Submitted to the Federal Government: FOIA Exemption 4

The Freedom of Information Act, or FOIA, was signed into law by President Lyndon Johnson on July 4, 1966. FOIA gives the public the right to access records from any federal agency or department within the executive branch. Oil and gas, renewable energy, and mining companies frequently are required to provide financial or trade secret information to the Bureau of Land Management (BLM) or other federal agencies. How can a company be sure that business information won’t be widely shared with the public as a result of a FOIA request? While FOIA plays an important role in keeping the government transparent and accountable, Congress has set forth a series of exceptions to FOIA’s disclosure requirement.

Exemption 4 most recently received the limelight. Exemption 4 states, in pertinent part, that FOIA’s mandatory disclosure requirement does not apply to “commercial or financial information” that is “obtained from a person and privileged or confidential.” 5. U.S.C. §552(8)(B)(b)(4). Yet the term “confidential” is not defined anywhere in the Act. This is where things get interesting.

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