Freedom of Information Act: Protecting your Information from Public Disclosure

1. Freedom of Information Act: Protecting your Information from Public Disclosure Ryan K. Manger

2. FOIA – 5 U.S.C. § 552 (b) • FOIA gives any person the right to federal agency records or information • Renewed emphasis on government transparency and agency responsiveness under Obama Administration

3. FOIA – 5 U.S.C. § 552 (b) • Special implication for government contractors • Your competitors can and will seek information you give a federal agency, including unit pricing. • FOIA requests are subject to nine exemptions.

4. FOIA – Exemptions • National Security Matters/National Defense • Internal Agency Personnel Rules and Practices • Information Exempted by Other Statutes • Procurement Integrity Act • Trade Secrets, Commercial or Financial Information

5. FOIA Exemption 4: Trade Secrets, Commercial or Financial Information • Voluntarily Submitted: • Submitter must show that information is the type it would customarily not release to the public. • Involuntarily Submitted: • Information is likely to impair the Government's ability to obtain necessary information in the future, or • Information is likely to cause substantial harm to the plaintiffs’ competitive position. Info will be considered “privileged or confidential” if:

6. FOIA – Exemptions • Privileged interagency or intra-agency documents • Personal information affecting an individual’s privacy • Certain law enforcement records or information • Exception for personal privacy does not apply to corporations – FCC v. AT&T, 131 S. Ct. 1177 (Mar. 1, 2011)

7. FOIA – Exemptions • Certain records of financial institutions • Certain information concerning wells

8. FOIA – Contract Pricing • Protect your information before contract award • Mark all proposal information, and anything else submitted to the Government, appropriately when your documents contain important competitive information.

9. FOIA – Contract Pricing FAR 52.215-1(e), “Restriction on Disclosure and Use of Data” • Mark the title page with the following: • This proposal includes data that shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed—in whole or in part—for any purpose other than to evaluate this proposal. If, however, a contract is awarded to this offeror as a result of—or in connection with—the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the Government's right to use information contained in this data if it is obtained from another source without restriction. The data subject to this restriction are contained in sheets [insert numbers or other identification of sheets].

10. FOIA – Contract Pricing FAR 52.215-1(e), “Restriction on Disclosure and Use of Data” • Mark each sheet of data you need to restrict with the following: • Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.

11. FOIA – Contract Pricing • Protect your information before contract award • Over-marking your data may serve to undercut your position. • Make sure your employees are educated on how to properly mark confidential information.

12. FOIA – Contract Pricing • Protect your information after FOIA request • Treat the request seriously • Respond promptly • Contractor seeking to withhold unit prices bears the burden of proving that the information is exempt from disclosure.

13. FOIA – Contract Pricing • Protect your information after FOIA request • Make a compelling case to the agency demonstrating that release of certain information will cause your company competitive harm. • Submit an affidavit from a senior executive with response, if necessary.

14. FOIA • More Information • www.FOIA.gov • Federal agency FOIA policies (OIP) • Dept. of Justice Guide to Freedom of Information Act • Contact Ryan K. Manger 314-552-6083 rmanger@thompsoncoburn.com