Editorial: DEFENSES AGAINST FOIA: Non-Profit Planned Parenthood Succeeds In Keeping Operations Manual Secret

When inquiring minds want to know, non-profit organizations now have a stronger response. Last year, we posed the question: Can a non-profit maintain trade secrets and other confidential commercial information? The First Circuit recently answered our question: “yes.”

In New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43 (1st Cir. 2015), the First Circuit held that Planned Parenthood, a non-profit organization, can possess confidential, commercial information, and protect it from disclosure under the Freedom of Information Act (“FOIA”). The First Circuit examined Exemption 4 to the FOIA, which shields documents from FOIA disclosure if they constitute “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). While the First Circuit did not explicitly hold that Planned Parenthood possessed “trade secrets”, it did find that Planned Parenthood possessed information which was both “commercial” and “confidential,” and implicitly found that this confidential, commercial information was valuable to Planned Parenthood (a.k.a. a trade secret).

The First Circuit found not only that non-profits may possess commercial information, but also that a non-profit may suffer competitive injury from the disclosure of certain commercial information, making that information “confidential” and precluding disclosure under the FOIA. Continue>>>