When can a federal agency withhold trade secrets and confidential business information under FOIA Exemption 4 after the Argus Leader decision?

FOIA Exemption 4 lets a federal agency withhold “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” It is one of the most frequently invoked exemptions for protecting private-sector data that companies submit to the government. How agencies apply it changed significantly after the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media.

What changed with Argus Leader

For decades, many courts followed the National Parks test, which generally allowed withholding only when disclosure would cause “substantial competitive harm” to the submitter. In Argus Leader, the Supreme Court rejected that test as having no basis in the statute’s text.

Instead, the Court held that commercial or financial information is “confidential” under Exemption 4 when it is:

• Customarily and actually treated as private by the person or business that provided it, and
• Provided to the government under an assurance of privacy (the Court left open whether such an assurance is always required).

This is generally easier for an agency to satisfy than the old competitive-harm standard, so more business information may qualify for withholding.

What an agency must still show

Exemption 4 is not automatic. To withhold, the information must be:

1. A trade secret, or commercial or financial in nature;
2. Obtained from a person (an individual, company, or other outside submitter), not generated internally by the agency; and
3. Privileged or confidential under the standard above.

Agencies must also consider whether the foreseeable harm standard applies and whether any reasonably segregable, non-exempt portions can be released. A requester who disagrees can administratively appeal a withholding and may seek assistance from the agency’s FOIA Public Liaison or OGIS.

Timing and scope

Federal agencies generally have 20 business days to respond to a FOIA request, though processing complex requests often takes longer. Note that state public-records laws vary and have their own exemptions and deadlines that differ from the federal FOIA.

For more requester guidance and related topics, see FOIA and public records.