Where the Sunshine Meets the Shade: Using FOIA Exemption 4 to Protect Confidential Compliance Information after the 2016 FOIA Improvement Act

Governments must constantly balance transparency and confidentiality—not too much sunshine, not too much shade. In the United States, the Freedom of Information Act (FOIA) illustrates this balancing act between transparency and confidentiality. FOIA provides transparency by giving requesters a broad right of access to agency records, but FOIA also provides several exemptions that allow agencies to maintain confidentiality by withholding certain requested records. The FOIA Improvement Act of 2016 unnecessarily disturbs FOIA’s balance by codifying several pro-transparency directives without also codifying counter-balancing directives that protect the confidentiality of commercial information submitted to agencies by private parties. This imbalance is of particular concern for government contractors, whose competitively valuable compliance practices may be subject to FOIA requests by competitors. Thankfully, two recent judicial decisions, referred to herein as the Public Citizen decisions, provide some assurance that confidential information about contractors’ compliance practices must be withheld from disclosure pursuant to FOIA Exemption 4. Nevertheless, Congress should consider additional FOIA amendments to codify the counter-balancing procedural protections that are currently provided by President Reagan’s Executive Order 12,600. Doing so would help restore FOIA’s balance and provide a much-needed sliver of shade to contractors that submit valuable information to the government.