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SCOTUS Relaxes Definition of "Confidential" Commercial Information Exempt from FOIA

Client Alert | 1 min read | 06.25.19

The Supreme Court yesterday made it easier for the Federal Government to withhold from the public certain records that businesses want kept private. Under the Freedom of Information Act (FOIA), the Government ordinarily must make available information it receives from a private entity to members of the public who request it. But FOIA exempts from disclosure (among other things) any “commercial or financial” information that is “confidential.” For nearly half a century, following a 1974 decision by the D.C. Circuit in National Parks and Conservation Association v. Morton, courts held that information is “confidential” for purposes of that exemption only where its disclosure would result in “substantial competitive harm.” In yesterday’s decision in Food Marketing Institute v. Argus Leader Media, the Court rejected the National Parks test, noting that the plain language of FOIA makes no mention of “substantial competitive harm.” Instead, the Court held that information is “confidential” for purposes of this exemption so long as it is: (1) both customarily and actually treated as private by its owner, and (2) provided to the government under an assurance of privacy. That definition is substantially broader — and far easier to meet — than the one set out in National Parks.

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Client Alert | 2 min read | 11.14.24

SEC ESG Enforcement Is Still Alive

On November 8, 2024 the SEC announced a settled enforcement action against Invesco Advisers, Inc. for making misleading statements about its integration of environmental, social, and governance (ESG) factors into the firm’s investment decisions. Invesco agreed to pay a $17.5 million civil penalty to settle the matter. This enforcement action makes it clear that, even though the SEC dissolved its ESG Task Force, the Commission continues to monitor firms’ statements and representations for misleading statements about ESG....