The Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader Media has significantly expanded the confidential commercial information protected from disclosure under the Freedom of Information Act (“FOIA”)—an issue that recurs repeatedly with respect to information submitted to EPA and other environmental regulatory agencies. 

At issue in Food Marketing was FOIA Exemption 4, which provides that information is exempt from disclosure under FOIA if it is “commercial or financial information obtained from a person that is confidential.”  5 U.S.C. § 552(b)(4).  The Court overturned longstanding lower-court precedent requiring that the submitter show not only that the information is maintained as confidential, but also that its release would “cause substantial harm to the competitive position of the person from whom the information was obtained.”  The Court did not resolve whether Exemption 4 applies in the absence of an assurance by the receiving governmental entity that it will keep the information confidential.

Jettisoning the “substantial competitive harm” requirement will likely significantly broaden the types of information submitted to EPA and other agencies that can be claimed by the submitter as exempt from disclosure under FOIA.  Indeed, EPA’s regulations currently codify the requirement to show that disclosure “is likely to cause substantial harm to the business’s competitive position.”  40 C.F.R. § 2.208(e)(1).  That requirement likely is no longer relevant, significantly reducing the burden on entities claiming that information they submit to EPA should be treated as confidential and exempt from disclosure under FOIA.

Complicating this is the fact that many environmental statutes contain provisions requiring disclosure of certain information.  Regulated parties thus must carefully evaluate the status of their information under FOIA but also under specific environmental-law provisions.  For example, the Clean Air Act generally requires collected information “to be made available to the public,” except if such information “would divulge methods or processes entitled to protection as trade secrets of that person.”  42 U.S.C. § 7542(c); see also 40 C.F.R. § 2.301 et seq. (special disclosure rules under various EPA-administered statutes).

The D.C. Circuit has held that at least the Clean Water Act’s similar provision does not “supersede” Exemption 4, such that if data is within the scope of Exemption 4, the CWA’s disclosure requirement does not “trump” Exemption 4’s protection and the information need not be released.  Environmental Integrity Project v. EPA, 864 F.3d 648 (D.C. Cir. 2017).  Nevertheless, parties seeking release of records may point to these environmental-law provisions in an attempt to limit the practical impact of the Supreme Court’s expansion of the protections provided by Exemption 4.  The expansion of Exemption 4 may also raise parallel questions regarding the scope of other EPA-specific statutory disclosure provisions, such as under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136(h).