VI. Waiver vs. Exemption

Finally, you should distinguish between the question of whether an agency has waived its right to withhold a records based on an exemption due to the public availability of the information from the question of whether a FOIA exemption applies to the records at issue.⁷⁷

Before arguing that waiver has occurred, you should carefully determine whether you are arguing that the government has not met its burden of showing that the information falls within the scope of the exemption or that a potentially applicable exemption has been waived by public disclosure.

This issue generally arises where the exemption the agency is attempting to invoke applies to a category of information that is by definition confidential, such as Exemption 4, which protects trade secrets and other similar information.

For information to meet the definition of a trade secret under Exemption 4, it must be maintained as confidential. If it has not been maintained as confidential, then it does not meet the definition of a trade secret, and Exemption 4 cannot be asserted. In contrast, under the waiver doctrine, you would argue that even though the information may in fact be a proper trade secret, because it has been released to the public, the government can no longer withhold it under Exemption 4 because waiver has occurred.

⁷⁷ Id. at 1252 n.6.