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L-R: Rose Sun, Esha Bandyopadhyay, and J. Kain Day of Fish & Richardson. .. L-R: Rose Sun, Esha Bandyopadhyay, and J. Kain Day of Fish & Richardson.

The Freedom of Information Act (FOIA) requires federal agencies to disclose their records, unless the requested information is protected from disclosure under an exemption. Exemption 4, one such exemption, protects (1) trade secrets and (2) commercial or financial information that is obtained from a person and is privileged or confidential.

In National Parks & Conservation Association v. Morton, the D.C. Circuit held that commercial information is “confidential for the purposes of [Exemption 4] if disclosure of the information is likely … to cause substantial competitive harm to the person from whom the information was obtained.” Even after subsequent clarification, the D.C. Circuit’s definition of “confidential” has resulted in at least five circuit splits. That deep divide leaves disclosing companies to guess at what will become of their information.

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