New FOIA Guidance Regarding a Vendor’s Proprietary Information
Mar 20, 2018
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Most public bodies utilize statutory bidding and requests for proposals (“RFPs”) to procure supplies, materials, equipment, and services needed for operations. These bid documents are often the subject of FOIA requests. Recently, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued a binding decision which clarifies when the FOIA Section 7(1)(g) “trade secret” exemption[1] can be properly asserted by a public body for certain information provided by a vendor or potential vendor.[2] The PAC opined that a person or entity that seeks to protect its confidential information submitted to a public body must claim that the information is proprietary, privileged or confidential and would cause competitive harm if released at the time the information is first submitted to the public body, and not at a later date (e.g., after learning that a FOIA request has been received).
To this end, a public body should consider adding a notice in its bid packages, RFPs, and other communications to vendors, to advise on the timing aspect of the “trade secret” exemption. A sample notice is below. Prior to finalization or use, however, we recommend that each public body consult with its legal counsel regarding the specific transaction and any appropriate adjustments to this draft notice.
Sample Bid Notice Regarding FOIA Requirements
By submitting a bid or otherwise responding in any way to this request for bids, the bidder acknowledges the following:1. This public body is subject to the Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”), and any and all information submitted by the bidder to this public body is subject to disclosure to third parties in accordance with FOIA. 2. If the bidder intends for the public body to withhold the bidder’s trade secrets, commercial information, or financial information from disclosure to a third party in response to a FOIA request, the bidder must include with its bid submittal a written notification specifically identifying such information, along with a statement that disclosure of such information will cause competitive harm to the bidder, as provided by FOIA Section 7(1)(g), 5 ILCS 140/7(1)(g). Any content not so marked by the bidder at the time of bid submittal will be presumed to be open to public inspection. The bidder may be required to substantiate the basis for its claims at a later time. 3. Notwithstanding timely notice received from a bidder in accordance with Section 7(1)(g), the public body reserves the right, in its sole discretion and subject only to applicable law, to withhold or release the subject information in response to a FOIA request.
Clients are encouraged to contact their Robbins Schwartz attorney with any questions. [1] Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that the disclosure of the trade secret or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested. 5 ILCS 140/7(1)(g). [2] See Public Access Opinion 18-004.
