What counts as confidential commercial information under FOIA Exemption 4 after Argus Leader?

FOIA Exemption 4 lets federal agencies withhold “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” The hardest part is usually deciding when commercial information counts as confidential. The Supreme Court reshaped that question in Food Marketing Institute v. Argus Leader Media (2019).

What Argus Leader changed

For decades, many courts followed the National Parks test, which treated information as confidential only if disclosure would cause substantial competitive harm to the submitter. Argus Leader rejected that requirement. The Court instead gave “confidential” its ordinary meaning.

Under the decision, commercial or financial information is generally confidential when:

• It is customarily and actually treated as private by the person who submitted it (kept closely held, not routinely released); and
• It was provided to the government under an assurance of privacy, where such an assurance exists.

The submitter no longer has to prove that releasing the records would injure its competitive position. That makes Exemption 4 easier for agencies to apply when a business genuinely keeps the data secret.

What still counts (and what doesn’t)

Information that a company shares publicly, posts online, or hands out without restriction is unlikely to qualify, because it is not actually treated as private. The exemption also covers only information obtained from a person (an individual or business) — not data the government itself generated. “Commercial or financial” is read broadly to include things like pricing, sales figures, customer lists, and proprietary methods.

Exemption 4 is discretionary in practice: even when records technically qualify, agencies weigh the foreseeable-harm standard and may release portions. Agencies also typically notify the business that submitted the records before disclosing them.

Practical notes

Federal agencies generally have 20 business days to respond to a FOIA request, though complex requests can take longer. If material is withheld under Exemption 4, the response should identify the exemption and explain the redaction, and you can usually appeal.

For background on requesting and exemptions, see FOIA & public records. Note that state public-records laws vary and may treat commercial confidentiality differently.