A New Definition Under the Federal Freedom of Information Act

Posted by James White on Tuesday, July 9, 2019

Article written by BrownWinick 2019 Summer Associate, Mariah Kauder, and BrownWinick attorney, James White

What qualifies as confidential? These days it might seem as if very little information truly remains private. However, when it comes to Freedom of Information Act (FOIA) requests, a recent U.S. Supreme Court ruling has actually expanded the meaning of “confidential” under federal law.

Filing a FOIA request enables public access to government records except in the case of certain statutory exemptions. One of those exemptions is for “commercial or financial information obtained from a person and privileged or confidential.” Because ‘confidential’ is not defined in the statute, courts have applied varying tests to determine what qualifies as confidential. For instance, this exemption had been construed to preclude FOIA requests where disclosure would result in “substantial competitive harm” in the marketplace.

The Supreme Court’s June 24, 2019 opinion in Food Marketing Institute v. Argus Leader Media discarded the “substantial competitive harm” test in favor of a broader understanding of confidentiality. The Court found no requirement of any harm, much less substantial harm, in the statutory language. Therefore, the Court adopted a definition whereby information provided to the federal government that is both customarily and actually treated as private qualifies as confidential.

This new interpretation means that, in order to assert the exemption and maintain confidentiality under FOIA, the information requested must not be of a nature that is customarily available to the public. It must also not have been actually shared in any public format in order to retain its cloak of confidentiality under FOIA. The Court reasoned this definition strikes a practical balance between disclosure and privacy that will continue to encourage cooperation in federal programs.

Here in Iowa, the new opinion should not change how the Iowa Open Records statute – Iowa Code Chapter 22 – is interpreted. While Chapter 22 provides for public access to government records much like FOIA, the Chapter 22 exemption comparable to that at issue in Food Marketing Institute specifically calls for information that “would give advantage to competitors and serve no public purpose” to be protected. Thus, under Iowa law, a showing that disclosure would result in a competitive advantage to third parties is required to protect information from disclosure under the Open Records Law.  As a result, the Iowa Open Records Law will require disclosure of public records in cases where FOIA would not.

BrownWinick attorney James White has significant experience handling public records issues on behalf of BrownWinick clients. Please feel free to contact James if you have questions or other needs in this area.