Protecting Confidential Business Information in Government RFI Responses Under FOIA

Companies responding to government Requests for Information (RFIs) often submit sensitive business details, raising concerns about potential disclosure under the Freedom of Information Act (FOIA). Understanding the scope of FOIA Exemption 4 and its implications for protecting proprietary information is important for businesses engaging with federal agencies.

The Supreme Court’s ruling in Food Marketing Institute v. Argus Leader Media reshaped the application of Exemption 4, which shields “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure. The decision eliminated the previous requirement that submitters demonstrate “substantial competitive harm” from disclosure. Instead, the ruling established that information is confidential if it is customarily and actually kept private by the submitter and, in some cases, if it was provided under an assurance of confidentiality. This shift has significant consequences for companies responding to RFIs, as it lowers the burden of proof required to maintain confidentiality.

When a company submits an RFI response containing pricing structures, operational strategies, proprietary methodologies, or other commercial data, the first consideration is whether the information is typically kept private. If a company does not routinely disclose such details to competitors, industry groups, or the public, it strengthens the argument that the information qualifies for Exemption 4 protection. Additionally, if the government provides an assurance—either explicitly in the RFI or through longstanding practices—that the information will be treated confidentially, this further supports exemption from FOIA disclosure.

A critical question arises as to whether a company can unilaterally prevent the release of its RFI response by including a statement asserting that the information may not be disclosed under FOIA. While such a disclaimer helps establish that the company views its submission as confidential, it does not in itself dictate the government’s decision. FOIA determinations are ultimately made by the receiving agency, which must assess whether the information meets Exemption 4 criteria. Nonetheless, including a strong confidentiality statement signals the submitter’s intent and may influence an agency’s handling of the request.

For greater protection, companies should go beyond a simple disclaimer and clearly mark documents as “Confidential Commercial Information” or “Proprietary – Exempt from Disclosure under FOIA Exemption 4.” These labels reinforce the argument that the data is commercially sensitive and not meant for public release. Additionally, companies should provide supporting explanations within the response, articulating why the information qualifies for exemption.

Government agencies handling FOIA requests involving RFI responses often follow procedures outlined in Executive Order 12600, which mandates a submitter notice process. If an agency receives a FOIA request for an RFI response containing potentially confidential business information, it typically notifies the submitter and allows them to object to disclosure. The company must then present a justification demonstrating that the information meets the requirements of Exemption 4. While this process provides an additional layer of protection, it also underscores the importance of proactively classifying and justifying confidentiality at the time of submission.

One factor that can complicate Exemption 4 claims is the language of the RFI itself. If an RFI explicitly states that responses may be made public or used in market research that could be shared with competitors, it becomes more challenging to argue for confidentiality. In contrast, if the RFI includes a statement that responses will be kept confidential, it strengthens a company’s case for exemption. Companies should carefully review RFI language and, where necessary, seek clarification from the agency before submitting sensitive information.

It is also essential to consider the nature of the information itself. Routine company descriptions or general capability statements that are already publicly available are unlikely to qualify for Exemption 4 protection. However, detailed financial projections, non-public pricing strategies, and unique technical solutions are more likely to be viewed as confidential commercial information. Agencies may conduct their own assessments to determine whether the data is truly proprietary or if its disclosure would not reasonably harm the submitter.

While Exemption 4 provides significant protections, it is not an absolute shield. If a FOIA request is made for RFI responses, agencies must balance public interest considerations with confidentiality claims. In some cases, agencies may release redacted versions of responses, omitting only the most sensitive portions. Companies should be aware of this possibility and structure their RFI responses accordingly, separating proprietary details from general information where feasible.

The growing complexity of government procurement and market research initiatives means that companies must be proactive in safeguarding their information. By incorporating clear confidentiality statements, marking documents appropriately, and ensuring that sensitive business data is not routinely disclosed elsewhere, businesses can enhance their ability to invoke Exemption 4 protections. Understanding the implications of FOIA and engaging in strategic information management will help companies maintain a competitive edge while participating in government contracting opportunities.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The interpretation and application of FOIA Exemption 4 may vary based on specific agency policies, case law, and regulatory changes. Companies concerned about the confidentiality of their RFI responses should consult legal counsel or a government contracts expert to assess their individual circumstances.