It is common for Government contractors to utilize the Freedom of Information Act (FOIA) to obtain documents relevant to their business development, operations, and – often – claims.  While FOIA requests can be a cost-effective means of obtaining information necessary to further contractors’ business interests, often these requests are not fulfilled in a manner consistent with the Act’s intent: information is improperly withheld, the production of responsive documents is delayed, and contractors are charged exorbitant fees as a condition of receiving the public records to which they are entitled.  However, there is hope that contractors’ access to information under FOIA will improve, at least with respect to requests submitted to the Department of Defense (“DoD”), in the immediate future.

The DoD has proposed a rule amending its existing FOIA regulations in favor of increased disclosure and improved responsiveness to FOIA requests.  A key tenant of the proposed rule is the adoption of “a presumption in favor of disclosure” that will attach to all FOIA requests.  While this principle is consistent with the purpose and intent of FOIA, it is not incorporated into the DoD’s existing regulations (this may not come as a surprise to contractors who have submitted FOIA requests in the past).  The DoD’s existing FOIA regulations can be found at 32 C.F.R. Part 286 and the proposed amendments are set forth in 79 Fed. Reg. 52,500.

While the proposed revisions will likely improve access to requested information by heightening the DoD’s burden of justification when withholding responsive documents, the flip side is that contractors’ own information maintained by the DoD may be subject to increased disclosure in response to requests made by the public and/or business competitors.  Accordingly, while contractors should benefit as a result of the proposed revisions, there will also be increased challenges with respect to protecting confidential and proprietary information implicated in a FOIA request.

In the event that a FOIA request seeks a contractor’s business or proprietary information, the FOIA officer is required to notify the contractor and provide it with an opportunity to oppose the disclosure.  Often, the time allowed in which to oppose the disclosure of information is minimal.  Nonetheless, it is important to timely object to an improper request for release of records because a failure to respond within the specified time is interpreted as the contractor having no objection to the disclosure.  While the basis and substance of an objection should be tailored to the specific request, generally, an objection should include a written statement that specifies all grounds for withholding any portion of the information and explains why the information is privileged or confidential (e.g., the disclosure would cause substantial competitive harm).  Contractors should be knowledgeable about the bases for opposing disclosure and prepared to explain why their information is exempt from disclosure.  As a practical matter, contractors can lay the groundwork for objecting to a FOIA request by ensuring that any confidential or proprietary information submitted to the Government is marked accordingly.