While the Freedom of Information Act (“FOIA”) contains a provision exempting trade secrets from public information requests, FOIA was enacted to serve policies essentially antithetical to those of trade secrets—allowing individuals to access records collected by governmental agencies. The FOIA trade secret exemption is discretionary, allowing an agency, rather than a party submitting information to the government, to determine what constitutes a trade secret. Consequently, government agencies often disclose information through FOIA requests that are considered to be trade secrets by the information’s owners. One such instance arose in the Seventh Circuit in Patriot Homes, Inc. v. Forest River Housing, Inc.
This situation typifies a legal question about whether a trade secret can continue to exist after its disclosure by the government and whether obtaining such information via a FOIA request can act as a defense to a claim of trade secret misappropriation. This article contrasts the underlying principles behind the Freedom of Information Act and various trade secret regimes. Ultimately, this article suggests that FOIA should offer greater protection of private information submitted to government agencies, rewarding those individuals or businesses willing to both cooperate with the government and accept the costs of protecting their information. This end might best be achieved through an amendment to the Federal FOIA, applicable to the states through the Commerce Clause, allowing individuals to assume responsibility for protecting information that they submit to the government.
Daniel B. Goldman,
(Trade) Secrets, Secrets Are No Fun—Especially When Disclosed Through FOIA Requests to Everyone,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol3/iss2/9