FOIA and Food Marketing Institute v. Argus Leader Media

[lawyergirl]

Does anyone have thoughts as to whether salary information may be considered private information pursuant to the new Food Marketing Institute ruling?

The Supreme Court decided Food Marketing Institute v. Argus Leader Media, No. 18–481, holding that commercial or financial information that is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy is “confidential” under Exemption 4 to the Freedom of Information Act (FOIA) and is therefore shielded from disclosure. 

Thanks so much in advance!

[formerfed]

In the contracting world, salary information is certainly confidential and would be withheld.  Weighted or hourly billing rates are relatively available.  If salary information was disclosed, a competitor could easily compute a company’s mark up practice from the known weighted rate.  That causes financial harm.

[Retreadfed]

We are going to have to see how this plays out.  In my experience, contracting officers rarely give contractors assurances of confidentiality.  Thus, on its face, an absence of such assurance would make such information releasable.  However, the Court observed that there may be circumstances in which such information should be treated as confidential even though there was no assurance of confidentiality given to the contractor.  What those situations may be need to be hammered out through experience.  Further, who can give those assurances is another issue.  For example, DCAA will have more access to such information than contracting officers.  Can DCAA give such assurances?  Similarly, DoL will have access to wage and fringe benefit information for purposes of establishing wage determinations.  Whether the data gathered by DoL would be releasable under the new standard is not clear.  In short, there are a lot of issues that need to be worked out before we can start making informed decisions in this regard.

[lawyergirl]

Thanks so much for the responses!  Very helpful!