A reporter filed a Freedom of Information Act (FOIA) request with a city for a non-disclosure agreement (NDA) between the city and a private company regarding a development project. The city denied this request, citing FOIA exemption 7(1)(g), which protects certain records containing trade secrets, commercial, or financial information obtained under claims of being proprietary, privileged, or confidential, especially if disclosure could harm the business involved.

However, the Public Access Counselor (PAC) found that the city violated FOIA by withholding the NDA (PAC Op. 23-015). While acknowledging that the NDA did contain commercial information and a confidentiality clause (meeting the first two criteria of exemption 7(1)(g)), the PAC noted that the city and the company did not provide specific evidence showing how releasing the NDA would competitively harm the company. The NDA mainly consisted of standard confidentiality terms and didn’t reveal sensitive details like business strategies, expenses, revenues, or specific development plans.

The PAC also dismissed the argument that the company traditionally treated the information in the NDA as private and confidential, stating this alone doesn’t justify withholding under FOIA section 7(1)(g). Additionally, the city’s concern that disclosure would discourage future public-private partnerships was rejected by the PAC. This was because the company had already publicly announced the development project through a press release nine days before the FOIA request, meaning the release of the NDA wouldn’t be the first disclosure of the project.

In summary, the PAC ruled against the city’s use of FOIA exemption 7(1)(g) to withhold the NDA, as the necessary conditions for this exemption — particularly the proof of potential competitive harm — were not adequately met.