The Michigan and Federal Freedom of Information Acts (FOIA) were originally enacted as a means to encourage government transparency and promote civil engagement. While the purpose of both acts was to encourage accessibility, the FOIA is complex and often times difficult to navigate.

Therefore, a number of public bodies find themselves unintentionally violating FOIA based on an incorrect understanding of its provisions. This is especially true with regard to the FOIA exemption for trade secrets, commercial or financial information.

There is confusion on the topic because of the differences between the Federal FOIA and the Michigan Freedom of Information Act (“MFOIA”).

Under the Federal Freedom of Information Act, federal agencies are not required to disclose “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." Therefore, a federal agency may have authority to promise an individual or business confidentiality with regard to trade secrets, commercial or financial information obtained by the agency during the contract bidding process.

However, this exemption only applies to FOIA requests directed to federal agencies, not state or local government agencies. While the line between federal and state agencies is sometimes blurred due to federal funding of state and local agencies, state courts have ruled that there is a strong presumption that state and local agencies are governed by their respective State’s FOIA as opposed to the Federal FOIA.

Read the full article here.

If you have any questions about recent state and federal updates concerning FOIA, contact Anne Seurynck at 616.726.2240 or at aseurynck@fosterswift.com.

Anne has extensive experience in drafting and reviewing ordinances and policies, serving as general counsel, counseling clients on Freedom of Information Act (FOIA) and Open Meetings Act issues, and working with communities on millage and Michigan campaign finance issues.