The Freedom of Information Act (FOIA) Exemption 4 provides that “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” can be withheld when responding to a FOIA request. But what does this exemption mean? Many district courts and circuit courts have ruled on this issue but the rulings have been inconsistent regarding the standard to justify withholding information.

On January 11, 2019, the Supreme Court granted certiorari in the case of Food Marketing Institute v. Argus Leader Media, 889 F.3rd 914 (8th Cir. 2018), cert. granted, 2019 WL 166877 (Jan. 11, 2019). The question raised is whether FOIA Exemption 4 applied to individual Supplemental Nutrition Assistance Program (SNAP) retailer redemption data. Argus Leader Media, a South Dakota newspaper, had submitted a FOIA request to the USDA for annual SNAP redemption totals for stores that participate in the SNAP program. The USDA issues SNAP participants a card (like a debit card) to use to buy food from participating retailers. When a participant buys food using their SNAP redemption, the USDA receives a record of that transaction, which is called a SNAP redemption. The USDA refused to produce the SNAP data, citing several FOIA exemptions, which includes trade secrets and commercial information.

For the first time, the Supreme Court will address when the federal government may withhold information from a FOIA request based on the contention that responsive information is confidential or a trade secret. This decision will be critical for companies who submit sensitive information to the government.