April 30, 2020 Articles

Protecting Information Provided to the Government

When the government asks for privileged information, it’s a rock and a hard place for in-house counsel.

By John Adams and Paulette Miniter
Once given to the government, to what extent does information retain its privileged or confidential status?

Once given to the government, to what extent does information retain its privileged or confidential status?

Giving information to the government is par for the course in business today. Applications for licenses, permits, and other forms of regulatory approval ordinarily require submitting information to the government. Similarly, companies that wish to participate in government programs must submit information first showing that they qualify to participate and then showing that they have complied with reporting requirements once they are approved to participate. Government subpoenas also bring about the disclosure of information to the government.

Such disclosures might seem routine enough. But a question arises when the information provided to the government is privileged or confidential. Once given to the government, to what extent does such information retain its privileged or confidential status? For in-house counsel, understanding the consequences of disclosing information to the government is important to deciding whether to provide information in the first place and which information to provide, as well as what precautions, if any, a company might take to prevent its privileged or confidential information from going to anyone besides the government.

There are two contexts where disclosure of information to the government commonly creates problems down the road: litigation and Freedom of Information Act (FOIA) requests or requests under similar state statutes.

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