It is a rare occasion when the United States Supreme Court addresses issues relevant to this blog. However, on January 11, 2019, the Supreme Court granted certiorari in the case of Food Marketing Institute v. Argus Leader Media, 889 F.3rd 914 (8th Cir. 2018), cert. granted, 2019 WL 166877 (Jan. 11, 2019). In the case, the Court will address when the federal government may withhold information from a Freedom of Information Act (FOIA) request based on the contention that responsive information is confidential or a trade secret. The case has potentially significant ramifications for sensitive information submitted by companies to the government.
FOIA Exemption 4 provides that “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” can be withheld when responding to a FOIA request. The U.S. Supreme Court has never addressed what this exemption means, although many District Court and Circuit Courts have done so. Those lower court rulings have been inconsistent with regard to the standard to be applied to make the determination.
The FMI case promises to be a seminal case with respect to what the scope of the FOIA exemption for trade secrets and confidential information. The decision will be critical for companies who do business with or deal with the government. Stay tuned for a future article on the outcome of the case.