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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What's Up With Chevron and Does It Matter?

If you have paid any attention to the U.S. Senate confirmation process for Colorado’s Judge Neil Gorsuch to the U.S. Supreme Court, you’ve heard Chevron come up.  According to Senator Al Franken (D-Minnesota), “For anyone who cares about clean air or clean water or about the safety of our food and medicines, it’s incredibly important . . . [it] simply ensures that judges don’t discard an agency’s expertise without good reason.”  In a 2016 opinion, Judge Gorsuch called Chevron a behemoth and argued that it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the constitution of the framers’ design.”

Chevron refers to a U.S. Supreme Court decision decided 33 years ago, Chevron U.S.A., Inc. v. Natural Resources Defenses Council, Inc., 467 U.S. 837 (1984) that embodies the judicial doctrine of court “deference” to an agency’s interpretation of ambiguous federal statutes.1   In Chevron, the Supreme Court reasoned that an agency is the subject matter expert and should have the authority to make policy choices – within reason.

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