In Chrysler Corp. v. Brown (441 U.S. 281 (1979)), Chrysler was worried that, since they were required to submit a lot of financial information and trade secrets to the Federal government, a competitor could obtain the information through a Freedom of Information Act (FOIA) request.

  • Technically FOIA §552(b)(4) exempted “commercial/financial information and trade secrets” from disclosure, but government agencies are never required to assert an exemption. Also, they sometimes disclose by accident.

Chrysler sued (in what is known as a “reverse-FOIA” action) to force the government to agree to not disclose their trade secrets. However, the US Supreme Court found that Chrysler could not enjoin the Federal government from disclosing their information.

  • The US Supreme Court found that FOIA is “exclusively a disclosure statute.” It was designed to disclose things, and couldn’t be used to prevent things from disclosure.
  • The Court did say that under the Administrative Procedures Act §706, the decision to disclose information under a FOIA request was reviewable.
    • So, if a company knows that someone is requesting their information, they can apply for judicial review under §706 and request a stay of Agency action under §702.
      • There is now an Executive Order (Exec. Order No. 12,600) that requires Federal Agencies to notify companies that someone is requesting their information.

Btw, the Trade Secrets Act (18 U.S.C. 1905) says that no employee of the government shall release commercial trade secrets. So even if the Agency decides not to protect your information via §552(b)(4), you might still be able to make a claim under §1905.