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Additional Nelson Mullins Alerts

October 31, 2018

Primer on Corporate Freedom of Information Act (FOIA) and Confidentiality Challenges

By Jeffrey H. Perry

In this era of pervasive government regulation there are a number of ways federal and state governments come into possession of sensitive private and commercial information. Given that the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552) and state counterparts are designed to facilitate disclosure of government-held information to the public, this sensitive information is at risk of disclosure to a variety of adverse parties, unless a submitter successfully employs a strategy to protect its sensitive information.

Weaponized FOIA Requests

Data and information submitted to the government through the regulatory process can be highly valuable to competitors who could use the information as a guide for structuring operations without the same financial or intellectual investments. FOIA disclosure can also be a means for adverse parties in litigation to gain access to information not otherwise available from the discovery process as well as a source for those who might seek to damage a company’s reputation and/or brand.

In fact, a long-running and well-publicized dispute between a Georgia hospital system and a law firm partner (Smith v. Northside Hospital) serves to highlight the weaponized use of FOIA and its state counterparts by savvy corporate actors in order to seek sensitive business information that competitors may have provided to a federal or state agency.

Burden on Submitters to Assert Protections

Given the increasing prevalence of this type of activity, it is important for submitters to note that the federal FOIA and state counterparts contain a variety of exemptions that permit ongoing protection of confidential information. However, frequently, it is up to the party submitting the information to negotiate with an agency to apply the exemptions in responding to disclosure requests and intervention in litigation is sometimes necessary to ensure adequate legal defense of the exemptions.

Strategies to Protect Sensitive Information

Nelson Mullins’ FOIA lawyers bring together an intimate familiarity with the complexities of government regulation with a keen understanding of the specific business concerns our clients have in protecting the confidentiality of their data and information across a broad range of industries.

While issues relating to the federal FOIA and state counterparts appear across various industries, our lawyers maintain special expertise in protecting confidential submissions sought by advocacy groups and plaintiffs’ lawyers pursuant to regulatory reporting obligations, including submissions typically mandated by Corporate Integrity Agreements (CIA); addressing Independent Review Organization (IRO) confidentiality concerns; navigating the FOIA regulations of the Department of Justice (DOJ), Department of Health and Human Services (HHS), Department of Energy (DOE), and Department of Transportation (DOT); and operating under various state FOIA, Open Records Act, and Government in the Sunshine provisions.

Our lawyers also possess the specialized skills, agency knowledge, and relationships necessary to resolve the full spectrum of information confidentiality disputes. That’s why leading companies turn to Nelson Mullins’ FOIA lawyers for counsel related to their most strategically important confidentiality matters.