FOIA Exemption 4 Tightens the Spigot on Public Disclosure of Bottled Water Sourcing Records

The Freedom of Information Act (“FOIA”) grants the public a powerful right of access to records in the possession of federal agencies.  However, this right of access is subject to nine distinct exemptions.  As demonstrated by D.C. District Court Judge Trevor N. McFadden’s opinion in Story of Stuff Project v. United States Forest Service, it is relatively easy for the federal government to withhold records under Exemption 4 which protects “trade secrets and commercial or financial information obtained from a person” which are “privileged or confidential.”  5 U.S.C. § 552(b)(4).

In 2015, an environmental non-profit called “The Story of Stuff Project” (the “Project”) submitted several FOIA requests to the United States Forest Service and Department of Agriculture (the “Government”) seeking all records pertaining to Nestle’s special use permit and water diversion and transmission facilities at Strawberry Creek in the San Bernardino National Forest.  After the Project filed suit, the Government produced roughly 3,000 pages of responsive documents, but withheld and redacted certain documents based on various FOIA exemptions.  As part of its summary judgment motion, the Project argued that the Government improperly withheld information under FOIA exemptions, including Exemption 4.  The court rejected each of the Project’s arguments and sided with the Government:

First, the Project argued that Nestle’s “proprietary mapping information” and “technical specifications” were not protected from disclosure under Exemption 4 because “substantially equivalent—if not identical—information” regarding Nestle’s operations, had already been disclosed to the public by the State of California Water Board in a 1999 Report.  The Government countered by submitting a declaration from Nestle’s Natural Resource Manager explaining that a forest fire destroyed Nestle’s infrastructure in 2003, and thus, any records created after the fire contain information different from the 1999 Report.  He also noted that the 1999 Report was merely “conceptual” and revealed only general locations, while the documents sought by the FOIA request would reveal precise location information.

The court rejected the Project’s argument, explaining that the party claiming that confidential business records are publicly available bears the burden of showing that there is a “permanent public record of the exact portions” it seeks.  In light of Nestle’s declaration, the court concluded that it is “plausible” that Nestle’s confidential diagrams feature “greater precision and accuracy” than those reflected in the 1999 Report.

Second, the Project argued that even if the withheld information was not public, it should not be treated as “confidential” under FOIA.  Again, the court disagreed.  Whether information is “confidential” under FOIA depends on whether it was disclosed on a “voluntary” or “mandatory” basis:  If disclosure was voluntary, the information is confidential if it’s the type that would not customarily be released to the public by the person from whom it was obtained.  But if mandatory, the information is confidential only when disclosure would be likely either to (1) impair the Government’s ability to obtain necessary information in the future; or (2) cause substantial competitive harm to the person from whom the information was obtained.  Here, the disclosure was both mandatory and confidential because Nestle’s declaration demonstrated that it could suffer competitive harm if its proprietary evaluation, licensing, and operationalization processes were disclosed to its numerous spring water bottling competitors.

Judge McFadden’s opinion demonstrates that FOIA’s power is not unlimited.  In fact, Exemption 4 appears relatively difficult to overcome as the government need only show a likelihood of competitive harm to prevent disclosure.  Couple that low bar with the fact that courts generally defer to the government’s determinations, and Exemption 4 appears nearly impossible to defeat.  The only sure way to overcome this exemption may be to show that the information sought has already been publicly disclosed.  But if the information has already been publicly disclosed, a FOIA request may be pointless.