Freedom of Information Act
The Freedom of Information Act, (“FOIA”) is used by numerous groups and individuals to obtain information from the government.1 There are a few exceptions, such as classified information, and “matters that are… trade secrets and commercial or financial information obtained from a person and privileged or confidential.”2
Moreover, commercial or financial information obtained from a contractor involuntarily is confidential under the exemption if release of such information would impair the government’s ability to obtain3 necessary information in the future or cause substantial harm to the competitive position of the firm from whom the information was obtained.
In addition, the courts have long held that the Trade Secrets Act4, which prohibits government personnel from disclosing information unless unauthorized by law is co-extensive with exemption 4 of the FOIA.5 Therefore, unless authorized by a law, agencies must withhold confidential information under exemption 4 and the Trade Secrets Act.
Generally, in government contracts, the total contract price may be disclosed, but line item pricing may be withheld. The D.C. Circuit Court has held that disclosure of line item pricing could cause substantial competitive harm. The court held that the disclosure “constituted (line item) pricing information – as opposed to the bid price itself – would be squarely at odds with the protection provided under exemption 4.”6 Similarly, in a separate case, a contractor has every right to insist that its line item prices be withheld as confidential.7
This issue was discussed in another case in the appeal of Canadian Commercial Corporation, (“CCC”) v. Department of Air Force, United Sates Court of Appeals for the District of Columbia Circuit, (the “Court”), No. 06-5310, decided January 29, 2008. CCC was a three-year contract, with an option for four additional years, by the Air Force to repair overhaul and modify J85 turbojet engines. A competitor, Sabreliner, filed a FOIA request for the contract.
