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II. Agreements Not To Disclose: Trade-Secrets and the "CDA"

One political extreme holds the view that the Government is engaged in the systematic suppression of information that the public has a need to know. The other extreme asserts that the Government is not capable of keeping information secret without being forced to do so, even if the life of every American depended on it. Reality lies somewhere between these extremes. Ever since the passage of the Freedom of Information Act (FOIA), a lively debate has ensued over the proper balance between these two opposing positions. Sometimes, the Government must reveal the information on which its actions and policies are based; other times, release of information in Government possession would injure private parties without providing any public benefit.

In the arena of scientific research, the debate is as strong as anywhere. From time to time, Government scientists need access to confidential information in the hands of private parties to do their jobs. By the same token, these same Government scientists must publish their research results. The challenge is to find a way to accommodate the legitimate needs of industry to protect trade secrets and of individuals to protect their privacy, without giving a private party the power to restrict the Government scientist’s prerogative to publish or the public’s right to know.

In 1997, Congress extended the reach of FOIA to non-governmental researchers receiving federal funds. ¹⁶X

Omnibus Budget Reconciliation Act, Public Law 105-277 (1997).

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