Posted on November 25, 2019 by Stephen Gidiere
When is the confidentiality of sensitive information provided at EPA’s request protected? In Food Marketing Institute v. Argus Leader Media (“FMI”), the Supreme Court addressed the question, but uncertainty remains.
It happens at least once in every television crime drama. The police bring in for questioning the prime suspect. After an initial back and forth, it becomes apparent they have no warrant or enough evidence to hold the suspect, who then asks: “Am I under arrest?” “No,” the police respond. “You are free to leave.” But of course, they never do. In reality—warrant or not—the suspect is stuck there.
For years, the same drama repeated itself countless times for companies and individuals facing requests from EPA for confidential business information and, understandably, concerned about the further dissemination of sensitive data submitted to EPA via the Freedom of Information Act (“FOIA”). While FOIA Exemption 4 provides that “trade secrets and commercial or financial information obtained from a person and privileged or confidential” are exempt from further disclosure, determining whether certain information is protected is no simple task, thanks mostly to a web of court decisions interpreting Exemption 4.
For decades, the inquiry began by asking whether the information was submitted to EPA “voluntarily.” That’s the test the D.C. Circuit established in its 1992 Critical Mass decision. If the information was submitted voluntarily, then the submitter could protect the information by simply showing it was not the kind of information that it normally releases to the public. If the information was compelled or required, then the submitter would have to meet a more stringent “competitive harm” test.
And so debates raged over what exactly it meant to provide the information “voluntarily.” If the submitter objected to EPA’s statutory authority to issue the request, but submitted the information anyway, was that “voluntarily?” Did EPA have to issue and enforce a subpoena to defeat such a claim? Or was it enough that EPA possessed authority to do so, even if not exercised? In reality, like the suspect, the submitted was never really free to leave, right?
But thanks to the Supreme Court’s recent decision FMI, submitters of information to EPA have been liberated from their imaginary chains! In FMI, the Supreme Court held that the “competitive harm” test is “inconsistent with the terms of statute” and rejected the D.C. Circuit’s “casual disregard of the rules of statutory interpretation” in formulating that test. In addition, the Court found “no persuasive reason” to distinguish between “voluntary” and “required” submissions. Instead, the Court held that all submissions should be evaluated for Exemption 4 coverage based on whether the information is “customarily and actually treated as private by its owner.”
So, now submitters are in control, right? Not so fast. The Court also found that Exemption 4 may not apply unless the information was “provided to the government under an assurance of privacy,” arguably putting EPA and other agencies back in control. Should submitters insist on such an assurance before submitting their information and data? Sounds likes it is time to lawyer up.