💡 Plain English Explanation

The Freedom of Information Act (FOIA) requires federal agencies to disclose records upon request unless the records fall within one of nine statutory exemptions. When contractors submit confidential business information to government agencies, that information may be subject to FOIA requests from competitors, journalists, or the public.

FOIA exemption clauses establish procedures for protecting confidential business information submitted to the government. The most relevant exemption is Exemption 4, which protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential."

Key aspects of FOIA protection include:

⚠ Why This Clause Matters

For the Contractor (Submitter): Without proper FOIA protection clauses and marking practices, your trade secrets, pricing information, technical data, and business strategies submitted to the government could be released to competitors. A robust FOIA clause establishes the agency's obligation to protect your information and notify you before any release.

For the Government Agency: Clear FOIA procedures reduce administrative burden and litigation risk. When contractors properly mark submissions and the agreement establishes clear procedures, agencies can efficiently process FOIA requests while protecting legitimate confidentiality interests.

Legal Framework: FOIA (5 U.S.C. 552), Executive Order 12600 (submitter notice), and agency-specific FOIA regulations govern the disclosure process. The 2016 FOIA Improvement Act created a "foreseeable harm" standard requiring agencies to demonstrate that disclosure would cause foreseeable harm before withholding information.

📄 Clause Versions

Balanced Version: Standard FOIA protection provisions with reasonable marking requirements and notice procedures. Aligns with Executive Order 12600 and common agency practices. 
FREEDOM OF INFORMATION ACT (FOIA) PROTECTION

1. Confidential Business Information. The Receiving Party (Agency) acknowledges that information disclosed by the Disclosing Party (Contractor) under this Agreement may constitute confidential commercial or financial information within the meaning of FOIA Exemption 4 (5 U.S.C. 552(b)(4)) and applicable regulations.

2. Marking Requirements. The Disclosing Party shall mark all submissions containing confidential business information with the following legend or substantially similar language:

"CONFIDENTIAL BUSINESS INFORMATION - This document contains trade secrets and/or confidential commercial or financial information that is exempt from disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(4). This information shall not be disclosed outside the Government without the prior written consent of [Company Name]."

3. Segregation of Information. To the extent practicable, the Disclosing Party shall segregate confidential business information from non-confidential information in its submissions to facilitate review of FOIA requests.

4. Notice of FOIA Requests. The Receiving Party shall provide the Disclosing Party with written notice of any FOIA request seeking disclosure of the Disclosing Party's confidential business information within five (5) business days of receipt of such request, to the extent permitted by law.

5. Opportunity to Object. Upon receipt of notice, the Disclosing Party shall have ten (10) business days to submit written objections to disclosure, identifying the specific information claimed to be exempt and providing a detailed justification for the claimed exemption.

6. Agency Determination. The Receiving Party shall consider the Disclosing Party's objections and provide written notice of its disclosure determination at least five (5) business days before any release, including the reasons for the determination.

7. No Guarantee of Exemption. The parties acknowledge that the ultimate determination regarding FOIA exemption claims rests with the Receiving Party (Agency), subject to judicial review. This Agreement does not guarantee that any particular information will be withheld from disclosure.

8. Reverse FOIA Rights. Nothing in this Agreement limits the Disclosing Party's right to seek judicial review of any Agency determination to disclose information under FOIA.
Disclosing Party Favor: Enhanced protections with longer response periods, broader marking acceptance, and affirmative agency commitments to assert exemptions. Use when submitting highly sensitive competitive information. 
FREEDOM OF INFORMATION ACT (FOIA) PROTECTION

1. Presumption of Confidentiality. The Receiving Party (Agency) acknowledges and agrees that all technical data, pricing information, business strategies, financial data, cost information, trade secrets, and proprietary methodologies disclosed by the Disclosing Party (Contractor) under this Agreement constitute confidential commercial or financial information entitled to protection under FOIA Exemption 4 (5 U.S.C. 552(b)(4)).

2. Agency Commitment. The Receiving Party commits to:
   (a) Assert FOIA Exemption 4 on behalf of properly marked confidential business information;
   (b) Treat all marked information as presumptively exempt absent clear evidence to the contrary;
   (c) Consult with the Disclosing Party before making any disclosure determination; and
   (d) Provide the Disclosing Party with maximum procedural protections under applicable law.

3. Flexible Marking. The Receiving Party shall accept any reasonable marking that indicates the Disclosing Party's intent to claim confidentiality, including but not limited to:
   (a) "Confidential," "Proprietary," "Trade Secret," or similar designations;
   (b) Restricted rights legends under DFARS or FAR;
   (c) Verbal identification at the time of disclosure, confirmed in writing within thirty (30) days; and
   (d) Inclusion on a list of confidential items provided to the Agency.

4. Enhanced Notice Procedures. Upon receipt of any FOIA request that may encompass the Disclosing Party's information:
   (a) The Receiving Party shall provide written notice within three (3) business days;
   (b) Notice shall include a copy of the FOIA request and identification of responsive documents;
   (c) The Receiving Party shall provide the Disclosing Party with copies of all responsive documents upon request; and
   (d) The Receiving Party shall not make any disclosure determination until the procedures below are completed.

5. Extended Response Period. The Disclosing Party shall have twenty (20) business days from receipt of notice to:
   (a) Review the documents at issue;
   (b) Submit detailed written objections to disclosure;
   (c) Provide supporting evidence for exemption claims; and
   (d) Identify any proposed redactions as an alternative to complete withholding.

6. Pre-Disclosure Conference. Before making any determination to disclose over the Disclosing Party's objection, the Receiving Party shall:
   (a) Convene a meeting or teleconference to discuss the objections;
   (b) Provide a draft of the proposed disclosure determination for comment;
   (c) Consider any additional information provided by the Disclosing Party; and
   (d) Document its consideration of each objection raised.

7. Extended Pre-Release Notice. If the Receiving Party determines to disclose despite objections, it shall provide the Disclosing Party with written notice at least fifteen (15) business days before disclosure to allow time for judicial intervention.

8. Commitment to Defend. If the Disclosing Party initiates reverse FOIA litigation, the Receiving Party shall:
   (a) Provide all documents and information relevant to the exemption claim;
   (b) Support the Disclosing Party's arguments to the extent consistent with the Agency's legal position; and
   (c) Not release the information pending resolution of the litigation.

9. Annual Review. Upon request, the Receiving Party shall provide the Disclosing Party with an annual summary of all FOIA requests received that related to the Disclosing Party's information and the disposition of each request.
Receiving Party Favor: Streamlined procedures that preserve agency discretion while meeting minimum legal requirements. Appropriate when the agency needs flexibility in processing FOIA requests. 
FREEDOM OF INFORMATION ACT (FOIA) PROTECTION

1. FOIA Applicability. The Disclosing Party (Contractor) acknowledges that the Receiving Party (Agency) is subject to the Freedom of Information Act (5 U.S.C. 552) and must process FOIA requests in accordance with applicable law and regulations.

2. Marking Obligation. To claim FOIA exemption protection, the Disclosing Party must:
   (a) Clearly and conspicuously mark each page containing confidential business information;
   (b) Use the specific legend provided by the Agency or substantially equivalent language;
   (c) Identify the specific exemption claimed (e.g., "Exempt under 5 U.S.C. 552(b)(4)"); and
   (d) Provide a brief explanation of why the exemption applies.
Information that is not properly marked may be disclosed without further notice.

3. No Blanket Claims. The Disclosing Party shall not designate entire submissions as confidential. Claims of exemption must be limited to specific information that genuinely qualifies for protection.

4. Standard Notice. The Receiving Party shall provide notice of FOIA requests to submitters in accordance with Executive Order 12600 and Agency FOIA regulations. Standard notice periods shall apply unless shortened timelines are required by law or court order.

5. Response Requirements. Objections to disclosure must:
   (a) Be submitted within the timeframe specified in the notice;
   (b) Identify each specific item of information claimed to be exempt;
   (c) Specify the applicable exemption with legal citation;
   (d) Explain the competitive harm that would result from disclosure; and
   (e) Certify that the information has not been publicly disclosed.
General or boilerplate objections will not be considered.

6. Agency Discretion. The Receiving Party retains full discretion to:
   (a) Determine whether information qualifies for exemption;
   (b) Release information that does not meet exemption requirements;
   (c) Make discretionary disclosures in the public interest; and
   (d) Comply with court orders requiring disclosure.
The Disclosing Party acknowledges that exemption claims may be denied.

7. Standard Pre-Release Notice. If the Receiving Party determines to disclose over objection, it shall provide notice in accordance with Executive Order 12600 and Agency regulations before release.

8. No Liability. The Receiving Party shall not be liable for any disclosure of information:
   (a) Made in good faith compliance with FOIA;
   (b) Required by court order;
   (c) Made after providing notice to the Disclosing Party; or
   (d) Involving information that was not properly marked.

9. Cost Recovery. The Disclosing Party agrees to reimburse the Receiving Party for reasonable costs incurred in processing complex FOIA requests related primarily to the Disclosing Party's information, if permitted by law.

💬 Key Considerations