General Guidance on Protecting Sensitive Information under Exemption 4 (5 U.S.C. §552(b)(4))

When you do business with the United States Government, eventually someone will make a Freedom of Information Act (FOIA) request for documents you submitted to us. We do not notify you of requests or that we released data unless we have reason to believe that the data might be sensitive. If you believe that your information qualifies for protection under exemption 4, you should pre-mark your sensitive documents with a restrictive legend in accordance with the Federal Acquisition Regulation. 

If your data contains a restrictive legend or we have reason to believe that the data is sensitive, we will notify you of the request. Executive Order (E.O.) 12600 gives you an opportunity to provide a detailed justification to support your position if you believe the data should be protected. If you do not respond to our E.O. 12600 notice, we assume that you believe data should be released. The following general guidelines may help you respond to E.O. 12600 notices with detailed justification.

Please circle or otherwise clearly identify those portions of the requested document(s) which would be likely to cause substantial harm to your present or future competitive position if released, and provide detailed information on why release would be harmful. To help us understand your position, some factors that you may wish to address are: 

(1) the general custom or usage in your business, 
(2) the number and situation of the persons who have access to the information, 
(3) the measures you use to protect the information from disclosure, 
(4) the type and degree of risk of financial injury that release would cause you, and 
(5) the length of time the information should be kept confidential. 
(6) if you believe the information was provided on a voluntary basis rather than to meet a requirement, you should explain why you believe it was voluntary.

Information that is known through custom or usage in your trade, business, or profession, or information that any reasonably educated person would know must be released. Self-evident statements or reviews of the general state-of-the-art normally must be released. Contract data that will be released include the name and address of the contractor, amounts actually paid by the Government under a contract, and cost and pricing data such as award prices for contracts and their modifications. Explanatory material and headings associated with costs and pricing data are normally released, unless their deletion is separately justified.

In determining releasability of your data, we apply the standards established by:

Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 204 L. Ed. 2d 742 (2019)

Generally, we can support your recommendations to protect information about unique ideas, methods, or processes that you developed and about equipment, materials, processes, or systems that are potentially patentable.