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![handle is hein.crs/govbafr0001 and id is 1 raw text is:
Congressional ______
1*. Research Service
When Does the Government Have to Disclose
Private Business Information in its
Possession?
Updated June 25, 2019
Update: On June 24, 2019, the Supreme Court issued its decision in FMI v. Argus Leader Media
concerning when commercial and financial information may be withheld from disclosure by the
government as confidential under Exemption 4 of the Freedom ofInformation Act (FIOA). The Court, in
an opinion authored by Justice Gorsuch (and joined by ChiefJustice Roberts and Justices Alito, Kagan,
Kavanaugh, and Thomas), held that information is confidential under Exemption 4 [a]t least when it
is (1) customarily and actually treated as private by its owner and (2) provided to the government
under an assurance ofprivacy. The Supreme Court did not, however, define the precise boundaries of its
new test; while the Court determined that [a]t least the first condition that information must
customarily and actually [be] treated as private by its owner must be present for information to
qualify as confidential, it did not decide whether the government must always provide assurances that
information will be kept private to invoke the Exemption 4 protections for commercial and financial
information. But in the present case, the Court ruled that both conditions were satisfied
In establishing this test, the Court also rejected the substantial competitive harm test for determining
whether information should be disclosed under Exemption 4, set forth by the D.C. Circuit Court of
Appeals in National Parks and Conservation Association v. Morton. The High Court declared that the
D.C. Circuit's interpretation, which had been widely adopted by other lower courts, inappropriately
resort[ed] to legislative history before consulting the statute's text and structure, and relied on
statements from witnesses in congressional hearings years earlier on a different bill that was never
enacted into law. In rejecting the substantial competitive harm test in favor ofa broader
interpretation of confidential, the Court's decision in FMI likely permits agencies to withhold a larger
category ofprivate sector information from FOIA's disclosure mandate. The more expansive
interpretation ofExemption 4's scope could see a corresponding decrease in the public disclosure of
information protected by that exemption. It is also possible that this expansion ofExemption 4's
protective coverage could make some private entities more willing to supply commercial and financial
information to the government than occurred under the substantial competitive harm test employed by
National Parks.
Congressional Research Service
https://crsreports.congress.gov
LSB10294
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