Photo of Daniel W. WolffPhoto of Anuj VohraPhoto of John E. McCarthy Jr.Photo of Monica DiFonzo Sterling

In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information in response to an information request made under the Freedom of Information Act (FOIA).  (Crowell & Moring previously wrote about the new test instituted by Argus Leader here.)

FOIA Exemption 4 allows agencies to withhold documents otherwise responsive to a FOIA request if the documents contain “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”  As discussed in our previous post analyzing the Argus Leader decision, the Supreme Court had left open the question of whether the submitting party must have received some assurance from the government that the information would be kept confidential.  Recently, in The Washington Post v. U.S. Small Business Administration, the District of Columbia District Court followed the lead of other post-Argus Leader decisions in “declin[ing] to ‘read the word confidential to impose a blanket requirement that the government provide an assurance of privacy in every case in which it asserts Exemption 4.”  This ruling follows the court’s observation in Renewable Fuels Assoc. v. U.S. Environmental Protection Agency that “no court has yet held that ‘privately held information lose[s] its confidential character for purposes of Exemption 4 if it’s communicated to the government without’ privacy assurances.”  These decisions signal that no “assurance of confidentiality” requirement currently exists.

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Photo of Daniel W. Wolff Daniel W. Wolff

Dan Wolff is a litigator and regulatory problem solver. He is a partner in Crowell & Moring’s Washington, D.C. office and chairs the firm’s Administrative Law & Regulatory Practice. Dan works with clients across a wide spectrum of regulated industries, counseling them on…

Dan Wolff is a litigator and regulatory problem solver. He is a partner in Crowell & Moring’s Washington, D.C. office and chairs the firm’s Administrative Law & Regulatory Practice. Dan works with clients across a wide spectrum of regulated industries, counseling them on their rights and obligations under a number of federal regulatory programs and in responding to government enforcement actions. Dan appears regularly in federal district and appellate courts, frequently in matters arising under the Administrative Procedure Act and other federal statutes, or which pose constitutional questions. He also litigates commercial and products liability cases in both federal and state venues.

Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.