Step-by-Step Guide for Determining if
Commercial or Financial Information Obtained from a Person is
Confidential Under Exemption 4 of the FOIA
In the wake of the Supreme Court's decision in Argus Leader, the term "confidential" under Exemption 4 must be given its "ordinary" meaning. This step-by-step guide can be used by agencies, in conjunction with OIP's guidance, to determine whether commercial or financial information provided by a person is "confidential" under Exemption 4.
1. Does the submitter customarily keep the information private or closely-held? (This inquiry may in appropriate contexts be determined from industry practices concerning the information.)
- If no, the information is not confidential under Exemption 4.
- If yes, answer question 2.
2. Did the government provide an express or implied assurance of confidentiality when the information was shared with the government?
- If no, answer question 3.
- If yes, the information is confidential under Exemption 4 (this is the situation that was present in Argus Leader).
3. Were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
- If no, the information is "confidential" under Exemption 4 (the government has effectively been silent – it hasn’t indicated the information would be protected or disclosed – so a submitter’s practice of keeping the information private will be sufficient to warrant confidential status).
- If yes, and no other sufficient countervailing factors exist, the submitter could not reasonably expect confidentiality upon submission and so the information is not confidential under Exemption 4.
Agencies should feel free to contact OIP if they have any questions or for assistance in applying this analysis.