Transcript Freedom of Information Act Part II Exemption 4.--Confidential Business Information   Trade secrets and commercial or financial information obtained from a person and privileged or.

Freedom of Information Act
Part II
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Exemption 4.--Confidential Business
Information
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Trade secrets and commercial or financial information
obtained from a person and privileged or confidential.
Trade secrets
 Restatement - secret information used in a business to
give a competitive advantage
 D.C. Circuit - limits further to means of production secret formulas and processes, not marketing or
financial information
 If the info is a trade secret, it ends the inquiry and it is
protected - much faster and cheaper
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Commercial and Financial Information
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Privileged information means attorney client privilege
Confidential information is protected if:
 Disclosure would harm the competitive position of the
person who submitted the information, or
 Disclosure would be likely to impair the government's
ability to obtain similar information in the future.
 This can require expert testimony on the harm
The DCC, in the Critical Mass case, gave extra protection
to information that was provided voluntarily - Why?
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Are trade secret protections absolute?
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Court also said that the protection of the trade
secret act is not absolute, but the agency must
show some legal basis for releasing otherwise
protected info
When might the agency release trade secret
information?
 Congress does this for toxics in some cases
 MSD and community notification act under EPA
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E.O. 12600
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E.O. 12600 generally requires agencies to notify people
who have given confidential commercial information to
the government when the information has been
requested under the FOIA.
In addition, E.O. 12600 gives the person who provided the
information a chance to explain to the agency why the
information should be withheld.
Like most executive orders, E.O. 12600 says that it is not
intended to create any judicially enforceable private
rights.
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Clinical Trial Data
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The FDA is asked to release IND info about drug
trials that have been halted
 Company says this could affect competition
 The IND contains info used in current trials
 Is an IND voluntary disclosure?
Court found that the IND was protected by 4
Should Congress require release of all clinical
trial data on drug as a condition of approval?
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Exemption 5.--Internal Government
Communications
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The FOIA's fifth exemption applies to internal
government documents that would not be
available in litigation against the agency.
 Includes lawyer client privilege
Also recognizes the "deliberation process or
executive privilege" which is reserved to the
government
 The right of government decisionmakers to get
advice without fear of it becoming public
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When does this Exemption Apply?
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To fall into the exemption, the documents must
be part of the agency decisionmaking process
What does the court want to protect?
 The courts want to protect the "frank
discussion of legal and policy matters" so
that agencies will not be completely swayed
by public opinion
What else does Exemption 5 cover?
 Attorney work product
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What Sort of Documents are Covered?
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An example is a letter from one government
department to another about a joint decision that
has not yet been made.
Another example is a memorandum from an
agency employee to his supervisor describing
options for conducting the agency's business.
Does not cover records justifying or explaining
decisions.
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Protecting Deliberation- NLRB v. Sears,
Roebuck & Co.
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What does the regional office do when there is an
unfair labor practices complaint it does not want
to adjudicate?
 The office of counsel makes the final decision
in an appeal memorandum
Who does it ask for advice and what does it get?
 When the regional office is considering such a
request it gets an advice memorandum from
counsel
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What did Sears want?
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Sears wanted documents exchanged
between the NLRB counsel and the regional
offices
What privilege did the NLRB claim?
 Agency claimed (b)(5) agency
memorandum privilege
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Why did Sears say that Exemption 5 did
not Apply?
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Sears says these reflect policies already adopted
by the agency and thus are not subject to this
exception because they do not further agency
consultation.
What is the key test?
 Are the they pre-decisional documents or
documents that implement or explain the
decision?
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Why do advice and appeals memos not
fall under 5?
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They are not sent until counsel makes its decision
on not filing a complaint, and thus do not fall
under 5
What about memos which direct the filing of a
claim?
 They just initiate the process and are clearly
part of an ongoing transaction which includes
further decisionmaking and legal advice, thus
they are subject to 5
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What if exempt materials are used as part
of a record for a ruling?
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Materials that might be sec 5 exempt lose their
exemption if the agency relies on them as part of
the record for a ruling
 If the agency then finds it cannot release them,
the record for the rule would fail
The agency can protect the materials used to
decide what the rule should be.
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Exemption 6.--Personal Privacy
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The sixth exemption covers personnel, medical,
and similar files the disclosure of which would
constitute a clearly unwarranted invasion of
personal privacy.
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Interpretation
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This exemption protects the privacy interests of
individuals by allowing an agency to withhold
personal data kept in government files.
 "which would constitute a clearly unwarranted
invasion of personal privacy"
 Allows release of info which is not so intrusive
Only individuals have privacy interests.
Corporations and other legal persons have no
privacy rights under the sixth exemption.
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Example - Tape of the last minutes of the
space shuttle
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Is the recording a "personnel [or] medical files [or a]
similar file[]" within the meaning of Exemption 6?
 Personal information is enough
If you represented the New York Times, what public
interest could you argue would be served by disclosure
of the recording, keeping in mind that a transcript had
already been disclosed?
 What is the government function angle?
If you represented NASA, precisely whose privacy could
reasonably be expected to be invaded, and how (still
keeping in mind the release of the transcript)?
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Exemption 7.--Law Enforcement
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The seventh exemption allows agencies to
withhold law enforcement records in order to
protect the law enforcement process from
interference.
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Types of Interference I
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A) could reasonably be expected to interfere with
enforcement proceedings,
(B) would deprive a person of a right to a fair trial
or an impartial adjudication,
(C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy,
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Types of Interference II
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(D) could reasonably be expected to disclose the
identity of a confidential source, including a State,
local, or foreign agency or authority or any private
institution which furnished information on a
confidential basis, and, in the case of a record or
information compiled by a criminal law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful
national security intelligence investigation,
information furnished by a confidential source,
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Types of Interference III
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(E) would disclose techniques and procedures for
law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk
circumvention of the law, or
(F) could reasonably be expected to endanger the
life or physical safety of any individual
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Why Have This List?
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This was added in 1974
 Why 1974?
The previous provision was short, but gave the
government very broad discretion to withhold
anything that touched on law enforcement
This list was meant to limit discretion and
encourage the release of information
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What are the Privacy Interests?
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The FBI collects lots of raw info on people
Why not release it to the newspapers?
What about "rap" sheets?
Does the FBI and others strategically release
information?
What about the LSU prof who was a person of
interest in the anthrax case?
Should this be forbidden?
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What is a Law Enforcement Purpose?
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Remember that law enforcement agencies are also big
employers with extensive non-law enforcement activities
Is this limited to criminal law?
 Includes civil and administrative enforcement
What if the data was compiled for other purposes, but is
now being used by law enforcement?
 The original purpose does not matter
It must also met the criteria for interference
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Example - Crime Scene Photos of Vince
Foster
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Foster was found shot dead in a DC park
Paper wants photos
Government claims Exemption 7
 Which element?
What is the public interest to balance against the
unwarranted invasion of privacy?
 What about conspiracy theories?
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Exemption 8.--Financial Institutions
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The eighth exemption protects information that is
contained in or related to examination, operating,
or condition reports prepared by or for a bank
supervisory agency such as the Federal Deposit
Insurance Corporation, the Federal Reserve, or
similar agencies.
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Exemption 9.--Geological Information
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The ninth FOIA exemption covers geological and
geophysical information, data, and maps about
wells.
This exemption is rarely used - but LA and Texas
would be good places to find it used, if anywhere.
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Sunshine/Open Meeting Acts
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Why have these laws?
What are the benefits?
What are the costs?
What does a Baton Rouge School Board meeting
look like?
How does it affect University hiring?
State business development?
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State vs. Federal Law
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How broad are the state laws as compared to the
federal law?
Federal law has 10 exemptions
 Federal law and exemptions
Most of the states are broader, i.e., reach more
meetings.
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How do agencies try to get around
Sunshine acts?
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Work off written documents - remember the
exemption for intra-agency memos?
Meet in groups of two
Have staff do the recommendations, and then
rubber stamp the results
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What is a meeting?
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Why is this a critical definition?
What did the Moberg case find?
 The Moberg case found that the critical
definition was whether there was a quorum
present of either the governing body or its
committees, unless it was a social or chance
gathering
 Could you set the quorum very high, assuming
you could ever get them together when you
needed to act?
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FCC v. ITT?
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The United States Supreme Court used a narrower
definition under the federal law in FCC v. ITT
 They are only meeting when they are deciding.
 They can get together privately when they are
receiving information and having informal
background discussions
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What do you tell your clients?
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Comply with notice
Do not make the decisions at the background
sessions
Clearly separate them, at least in time.
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Sanctions
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What sanctions can you get if prevail on a claim
that a meeting should have been open?
 You can get attorney's fees if you prevail on a
claim that a meeting should have been open
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Can the federal court overturn actions
because of improperly closed meetings?
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Federal law does not allow the court to overturn
an agency action because a meeting was
improperly closed
Some states do allow this, plus providing other
penalties
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Federal Advisory Committee Act (FACA)
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Why did congress pass this act?
 FDA as an example
Who does it cover?
 Covers every group used by the president
or an agency to get advice
What does it require?
 Should be balanced membership and not
biased
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Separation of Powers
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Does it violate separation of powers by
limiting the president's right to get advice?
 FDR's Kitchen Cabinet?
What if they are all federal employees?
 Does not cover groups of only federal
employees
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Hillary Health
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Was she a government employee?
 Even if she claimed she was not for financial
disclosure purposes?
 Bye Vince
What about the 800 folks who did the work as
"advisors" to the committee?
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The Privacy Act - Access to Your Own
Records
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The Privacy Act of 1974 provides safeguards against an
invasion of privacy through the misuse of records by
Federal agencies.
In general, the act allows a citizen to learn how records
are collected, maintained, used, and disseminated by the
Federal Government.
The act also permits an individual to gain access to most
personal information maintained by Federal agencies and
to seek amendment of any inaccurate, incomplete,
untimely, or irrelevant information.
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The Privacy Act Policy
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Why is it important for you to get access to the
information the government keeps about you?
Why might you want to challenge the accuracy of
information in government files?
Why is it important that the Privacy Act requires
agencies to publish descriptions of the systems
they use to keep records?
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Which Act Applies?
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Do FOIA and the Privacy Act overlap?
Which should you cite when requesting records?
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Can You Just Ask for All of Records the
Government Has on You?
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There is no central index of Federal Government
records about individuals.
 Not as true post-9/11, but you will not get
anything held under national security powers
An individual who wants to inspect records about
himself or herself must first identify which agency
has the records.
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Getting Other People’s Records
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A request for access under the Privacy Act can only be
made by the subject of the record.
An individual cannot make a request under the Privacy
Act for a record about another person.
 The only exception is for a parent or legal guardian
who may request records on behalf of a minor or a
person who has been declared incompetent.
It is a crime to knowingly and willfully request or obtain
records under the Privacy Act under false pretenses.
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Privacy Act Process
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This mirrors FOIA Process
We will not cover this in any more detail
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The Computer Matching and Privacy
Protection Act of 1988
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The Computer Matching and Privacy Protection
Act of 1988 amended the Privacy Act by adding
new provisions regulating the use of computer
matching.
If the government already has the information,
why is computer matching a big issue?
How does TRW make this a moot issue?
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