is unnecessary, such as personal information (i.e., social security numbers,
names, addresses, etc.) as appropriate
(though itself FOIA does provide an exemption to the disclosing agency from
disclosing this type of information,
let’s follow the “better safe than sorry”
guidelines), and only disclose the minimum amount of proprietary or confidential information possible.
Now comes the fun part of preemptively trying to scare off disclosure of
your commercial secrets . . . invoking one
of the exemptions to FOIA and keeping
your information from being released.
The most relevant of these techniques
is Exemption 4 to the FOIA ( 5 U.S.C. §
552(b)( 4))which states “this section does
not apply to matters that are … trade
secrets or commercial or financial infor-
mation obtained from a person and that
is privileged or confidential.” To get a leg
up on having this exemption followed
with your trade secret information, con-
sider these rules of thumb.
Label confidential information as
such per the guidelines for the agency involved or provide your own labeling of
confidential information to distinguish
from non-confidential information (if the agency doesn’t have
such guidelines). Having said
that, the lack of such guidelines
by the agency does not inspire
confidence that the agency has
its act together. So, maybe you
should reconsider if the disclosure is actually mandatory.
The default labeling in such
situations would be something
along the lines of prominently
displayed and emphasized
“CONFIDENTIAL TRADE
SECRET INFORMATION”
“COMPANY PROPRIETARY”
or “COMPANY SENSITIVE”
and “CONFIDENTIAL
INFORMATION MUST
BE DELETED PRIOR TO
RELEASE TO THE PUBLIC.”
To really drive the message
home, provide a copy with the
information already redacted
with a cover letter describing
the non-redacted and redacted
submissions, and clarifying that
only the redacted submission
will be used if the information
is released for any reason. Also
add a highly visible “request to
be notified so you may make
comment” in the documents if
they are sought for by others.
When submitting electronic
files and data, consider using file
markers and screen displays to flag the
information as confidential. Hopefully
all this extra ink will add enough weight
to tip the balance in your favor.
Generally, a federal agency makes
the call as to whether the information
falls under a trade secret exemption
and does not have an obligation to no-
tify you of a request for information
under FOIA. But, if you do receive
such a notice you may try to stop
the release under the Administrative
Procedures Act (i.e., a reverse FOIA
request). Also, be aware that when
dealing with a state rather than federal
agency, individual state laws apply and
you should have a local counsel ready
to guide you through with the govern-
ing state statues. FYI, some states are
far less concerned about respecting
trade secrets than others.
So, when push comes to shove, how
have these types of issues played out in
the real world in recent years?
One near and dear to the hearts of us
in the specialty chemical and coatings
industries is chemical compositions of
our products. In the case of the chemicals used in fracking oil and natural gas
deposits, which various environmental
groups and agencies have taken an interest in, the “balance” between trade
secrets and public disclosure adopted
by the Department of Energy was to report lists of raw chemicals used but not
the specific products those chemicals
are used in.
Another one that we in the biz may
encounter is a required disclosure of
internal operating procedures. In a
case involving HR policies proprietary
to a business operation, SeaWorld’s
safety protocols came under scrutiny
by the Occupational Safety and Health
Administration (OSHA) after a trainer’s death. Though a preliminary ruling by an administrative law judge held
that SeaWorld’s safety protocols were
to be released, the deadline passed
without release by OSHA. This was
apparently due to SeaWorld maintaining its claim that these protocols were
trade secrets, and OSHA apparently
feared prosecution. Not an unfounded fear, since unlawful disclosure of a
trade secret by a federal government
employee is punishable by up to a year
in prison.
The take home message: get in there
early and fight hard to keep what is yours
from slipping out from between Uncle
Sam’s fingers. Because no one loves your
trade secrets as much as you do, except
maybe your competitors. CW
