NCC this week joined a large cross-section of the U.S. business community in voicing concerns with the Open and Responsive Government Act of 2019. (S.2220). The letter to the Senate Judiciary Committee specifically opposed the bill’s provision that would reverse the Supreme Court’s recent decision, Food Marketing Institute v. Argus Leader Media, which provided clarity and certainty regarding protections for confidential business information (CBI) under the Freedom of Information Act (FOIA) Exemption 4.1.
“Instead of promoting government transparency, this bill would reinstate the flawed ‘substantial competitive harm’ standard, which was rejected by every Justice on the Court, and threatens the public disclosure of closely-guarded confidential commercial information,” the groups said.
The groups argued that this bill would put companies who submit data to the government at risk of costly litigation in order to protect it.
“We all support government transparency, and the fundamentals of FOIA, but open government does not mean publicizing private businesses’ confidential information. By making confidential information public, it becomes available to parties who may seek to misuse the information in order to harm the business.”
Congress specifically provided for this in FOIA Exemption 4, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Before the Food Marketing decision, courts erroneously followed the D.C. Circuit’s interpretation of Exemption 4’s “confidential” standard in National Parks.2 That standard requires a showing that the government’s release of private data would likely cause substantial competitive harm to the submitter in order to justify withholding it from a FOIA request and has resulted in decades of FOIA litigation and unpredictable outcomes.
“We respectfully request the Committee reject the flawed standard in S. 2220 and stand with our industries to protect confidential, sensitive business data,” the letter concluded.
