Managing the Risks of FOIA-able Trade Secrets

Wake Forest Journal of Business & Intellectual Property, Vol. 14 (2), 314-343 (2014).

39 Pages Posted: 12 Jan 2011 Last revised: 5 May 2014

See all articles by Nancy J. White

Nancy J. White

Central Michigan University

Kenneth J. Sanney

Western Carolina University

Date Written: March 26, 2013

Abstract

The primary purpose of the Federal Freedom of Information Act (FOIA) is to provide federal agency records and information to the public and thereby open the inner workings of federal government to public review. Although the goal of open government is certainly laudable, it can have unintended consequences when businesses dealing with the government have their trade secrets or confidential information “FOIAed” by and then revealed to a competitor. It is, therefore, the aim of this article to synthesize the legal framework created by the intersection of FOIA and trade secret law and to apply this framework to the strategic and tactical decisions businesses pursuing a federal government contract would likely face. The resulting reference point in these areas of diverging law and the proposed recommendations are intended to assist business executives and legal counsel in their decision-making process and thereby limit their own personal liability under the business judgment rule.

Keywords: FOIA, trade secrets, intellectual property, torts, misappropriation, business judgment rule, competitive advantage, cost advantage, differentiation advantage

JEL Classification: O34, O38, L74, K11,K 23

Suggested Citation

White, Nancy J. and Sanney, Kenneth J., Managing the Risks of FOIA-able Trade Secrets (March 26, 2013). Wake Forest Journal of Business & Intellectual Property, Vol. 14 (2), 314-343 (2014)., Available at SSRN: https://ssrn.com/abstract=1738409 or http://dx.doi.org/10.2139/ssrn.1738409

Nancy J. White (Contact Author)

Central Michigan University ( email )

Dept. of Finance and Law
Mt. Pleasant, MI 48858
United States
989-774-1842 (Phone)

Kenneth J. Sanney

Western Carolina University ( email )

United States

HOME PAGE: http://www.wcu.edu

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