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The U.S. Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader alters 40 years of Freedom of Information Act law governing the withholding of documents the government receives from outside sources (including businesses). Instead of showing that the company submitting the information must suffer “competitive harm” from its release, commercial information received from outside sources can be withheld if it is “customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.”  While FOIA Exemption 4 allows agencies to withhold “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” the term “trade secrets” has been interpreted more narrowly than as defined by the Defend Trade Secrets Act, and companies must rely on the “confidential” prong to protect their information.  Although the FMI opinion should make it easier for the government to withhold information submitted by businesses, one commentator noted that the question of whether “some assurance” from the government is required for information to be treated as “confidential” under Exemption 4.

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