V. Trade Secrets Act
Information subject to Exemption 4 also falls under the Trade Secrets Act,105 a federal law distinct from the FOIA that provides for penalties, including fines, imprisonment, and removal from office, for a government employee or officer who improperly releases information such as trade secrets or confidential statistical data.106
As a result, it is not particularly fruitful to argue for a discretionary release under FOIA for trade secret information. As Department of Justice guidance states, “a determination by an agency that information falls within Exemption 4 is ‘tantamount’ to a decision that it cannot be released.”107 However, you should note that the Trade Secrets Act does not protect from disclosure information that does not fall under Exemption 4.108
105 McDonnell Douglas Corp. v. Nat’l Aeronautics & Space Admin., 180 F.3d 303, 305 (D.C. Cir. 1999).
106 18 U.S.C. § 1905.
107 Dep’t of Justice, Guide to the Freedom of Information Act: Exemption 4 at 355-56 (2009), available at http://www.justice.gov/oip/foia_guide09/exemption4.pdf.
108 Frazee v. U.S. Forest Serv., 97 F.3d 367, 373 (9th Cir. 1996).
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