The Freedom of Information Act Exemption 4 Tested: Protecting Corporate Reputation in the Post-Crash Regulatory Environment

Abstract

In the last of five notes of the Columbia Business Law Review Survey, the author considers the increasingly active role of federal regulators in the aftermath of the recent economic collapse. As government regulators adopt a more assertive posture, institutions subject to government review run the risk that confidential business and financial information will become subject to public disclosure under the Freedom of Information Act (“FOIA”). The Court of Appeals for the Second Circuit recently ruled on a pair of cases raising the issue of corporate confidentiality and reputational harm. The court’s ruling left open an important question: whether it is possible under FOIA for agencies and courts to appropriately account for corporate reputational harm in an era of increased government regulation without undermining FOIA itself. This note examines the current jurisprudence on reputational harm within FOIA, and proposes solutions to help courts better determine whether the reputation in question is that of the corporation or the regulating agency.