Protective Notice

One problem with freedom of information laws such as the United States Freedom of Information Act, 5 U.S.C. § 552 is; the risk exists that trade secrets and confidential information disclosed to governments pursuant to a contract or bid for a contract will be disclosed in response to such a request. Most freedom of information provisions contain specific exceptions shielding certain classes of confidential information from disclosure, including trade secrets and confidential know-how owned and supplied by government contractors. Nonetheless, to avoid the risk of an accidental disclosure, such material should have a notice, known as a protective notice, stating that the information is:

  • confidential;
  • the property of the supplying private entity, developed by that entity (noting if possible that the development was at the entities expense);
  • that it is not subject to disclosure under the Freedom of Information Act (or other relevant provisions); and
  • that inadvertent or intentional disclosure could cause grave commercial harm to the entity that supplied it to the government.

In the U.S. the notice should also cite to the applicable sections of the Freedom of Information Act that excepts the information from disclosure, i.e., 5 U.S.C. §552(b)(1)(A), §552(b)(4), as well as Executive Order 12600 and also note that unauthorized disclosure may be an offense under 18 U.S.C. §§1831-39 and §1905.