Doj foia10/30/2023 ![]() Implied assurances can be inferred based on the “generic circumstances” considering the government’s treatment of similar information and its broader treatment of information related to the program or initiative to which the information relates. ![]() On the other hand, the explicit notices can have the opposite effect, informing the submitter that it will not keep the information confidential. Assurances of Confidentiality: Significantly, the DOJ Guidance recognizes that such assurances “can be either explicit or implicit.” Agencies can find “explicit assurances” in direct communications with the agency, in general notices on the agency website, or in regulations or statutes.It also suggests that agencies can reach out submitters for more information about its practices (which is generally the point of the submitter notification process). Treatment of Information: According to the DOJ Guidance, agencies can often determine whether submitters keep certain information private based on the agency’s own knowledge of the submitter’s practices or from the records themselves.First, it notes that “n light of th current legal uncertainty,” agencies should consider both prongs of the Food Marketing Institute test “as a matter of sound administrative practice.” Thus, it instructs agencies to consider both the submitter’s treatment of the information and assurances of confidentiality by the government. The DOJ Guidance tries to fill this void and provide answers to the significant open questions for FOIA officers on the front lines of defining the boundaries of Exemption 4. In its place, it adopted a “plain language” interpretation of confidential, finding two potential definitions: (1) information “customarily kept private, or at least closely held,” by the submitting party and (2) information disclosed when the receiving party provides “some assurance that it will remain secret.” The Supreme Court held that the first condition was mandatory but expressly left open whether confidential information could lose that status if provided to the government “without assurances that the government will keep it private.” As a result, contractors and agencies alike were left without clear guidance as to whether, or when, a government “assurance” may be required. 1974) based on the lack of support in the statutory language. It rejected the well-established “competitive harm” test from National Parks & Conservation Association v. § 552(b)(4).Īs covered in this space earlier this year, in Food Marketing Institute, the Supreme Court jettisoned 40 years of established FOIA case law on how agencies defined confidential under Exemption 4. This exemption protects “trade secrets and commercial or financial information obtained from a person privileged or confidential.” 5 U.S.C. While not determinative, this DOJ Guidance offers contractors critical insight into how agencies will respond in the first instance to FOIA requests for information that may be subject to Exemption 4. This new guidance addresses the meaning of “confidential” in light of the Supreme Court’s decision in Food Mktg. Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.
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