Many government contractors are familiar with FOIA requests, or requests made by individuals under the Freedom of Information Act for release of information in the federal government’s possession.
In the recent case Food Marketing Institute v. Argus Leader Media, the U.S. Supreme Court held that commercial or financial information is “confidential” and cannot be disclosed under FOIA where it is treated as private by its owner and provided to the government under an assurance of privacy.
Are you taking adequate steps to protect your proprietary and confidential information from misuse by teammates?
If your teaming agreement or non-disclosure agreement requires you to mark proprietary information with a “protected” legend, the answer may be “no.” Although many standard teaming agreements and non-disclosure agreements require protective legends in order to protect confidential information, contractors sometimes fail to apply the appropriate legend. And when that happens, at least according to a recent decision of the U.S. Court of Federal Claims, the contractor may have no basis to complain that the teammate stole its confidential information.
Clients thinking about filing a SBA size appeal with the SBA Office of Hearings and Appeals are sometimes nervous when they find out that SBA size appeal decisions are publicly published. “What if the judge publishes our confidential information?” they ask.
As a small business in a competitive market, it is always wise to think about protecting your proprietary and confidential business information, including by having employees and teaming partners sign non-disclosure agreements. But what do you do when the person with your confidential information is an administrative judge, like the ones at SBA OHA?