The U.S. Supreme Court rarely hears cases involving trade secrets, primarily because trade secrets have historically been governed by state law. Now that we have the Defend Trade Secrets Act (DTSA), it is more likely that the Court will have to address Circuit splits on statutory interpretation. But thus far, no such issues have reached the Supreme Court.
In a few weeks, however, the Court will hear oral argument in Food Marketing Institute v. Argus Lender Media, a Freedom of Information Act (FOIA) case that involves trade-secrets issues.
The FOIA contains an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” which does not need to be disclosed publicly. 5 USC 552(b)(4). This exemption has been interpreted to require proof that disclosure would cause substantial harm to the information source’s competitive position. Circuits have split on how to interpret this test.
The petitioner is asking the Court to dispense with this test and instead hold that the term “confidential” be interpreted under its ordinary meaning, i.e., information “that is privately held and not disseminated,” without the need to show competitive harm if disclosed. See Petitioner’s Brief at p. (i). Alternatively, the petitioner wants the Court to clarify that the substantial harm test is satisfied if “the party opposing disclosure establishes a reasonable possibility that disclosure might injure financial or competitive interests.” Id.
Since the statutory exemption includes trade secrets alongside confidential information, the Court may offer insight into how trade secrets are defined under the FOIA. In such a case, the Court’s comments could carry substantial weight in DTSA cases. Regardless, this case presents important issues for any company that seeks to protect its confidential information and trade secrets when contracting with the government.