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EO 12600Executive OrderReagan · R Quiet signal

Executive Order 12600

Predisclosure notification procedures for confidential commercial information

This executive order establishes uniform procedures requiring federal agencies to notify businesses and other submitters before releasing their confidential commercial information under FOIA requests. It creates a system for submitters to designate information as competitively sensitive and to object to disclosure, with agencies required to consider objections and explain denials.

52 FR 23781
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Impact dates

  1. Agencies must establish designation and notification procedures by regulation after notice and public comment (Sec. 7)

  2. Reasonable number of days prior to specified disclosure date for written explanation of override (Sec. 5)

  3. Reasonable period of time for submitter to object to disclosure (Sec. 4)

  4. Reasonable time after submission for submitter to designate competitive harm (Sec. 3(b))

  5. Cutoff date for pre-existing vs. new confidential commercial information submission procedures (Sec. 3(a)-(b))

Key directives

  • Agencies must establish procedures to notify submitters of confidential commercial information when FOIA disclosure may be required (Sec. 1)
  • Agencies must use good-faith efforts to advise submitters of established procedures (Sec. 1)
  • For pre-1988 submissions: notify if records under 10 years old and designated confidential, or if agency believes competitive harm likely (Sec. 3(a))
  • For post-1988 submissions: establish procedures allowing submitters to designate competitive harm at time of submission or reasonable time after (Sec. 3(b))
  • Agency procedures may provide for expiration of designations after specified period or changed circumstances (Sec. 3(b))
  • Agencies may designate specific classes of information as presumptively confidential (Sec. 3(b))
  • Submitters must be afforded reasonable time to object to disclosure and state grounds (Sec. 4)
  • Agencies must give careful consideration to objections and provide written explanation if overriding them (Sec. 5)
  • Written explanation must be provided reasonable days before specified disclosure date (Sec. 5)
  • Submitters must be promptly notified when FOIA requester brings suit to compel disclosure (Sec. 6)
  • Procedures must be established by regulation after notice and public comment (Sec. 7)
  • Existing similar procedures must be reviewed for conformity (Sec. 7)

Who is ordered

Timeline

Immediate

  • EO takes effect upon signing

Near term (90d)

  • Agencies must establish designation and notification procedures via regulation with notice and public comment (Sec. 7)
  • Agencies with existing procedures must review for conformity (Sec. 7)

Long term

  • Procedures for information submitted on or after January 1, 1988 take effect (Sec. 3(b))
  • Ongoing predisclosure notification obligations for all future FOIA requests involving confidential commercial information

Risks & tensions

  • Creates tension between FOIA's transparency purpose and business confidentiality interests—may slow or reduce disclosure
  • Vague 'reasonable time' and 'reasonable number of days' standards leave agencies discretion that could lead to inconsistent implementation
  • Sec. 10 disclaimer that EO creates no enforceable rights may limit judicial oversight despite procedural protections
  • Voluminous submitter notification via posting/publication (Sec. 1) may not effectively reach all affected parties
  • Exception in Sec. 8(e) for non-designated information creates risk of inadvertent disclosure if submitters miss designation window
Executive Order 12600: Predisclosure notification procedures for confidential commercial information · Executive Orders