T H E F R E E D O M OF I N F O R M A T I O N
ACT
AND
THE EPA PROPOSED REGULATION
EXEMPTION
ROBERT
(B)(4)
LEMMONS
465
ON
" I KNOW OF NO SAFE DEPOSITORY OF THE ULTIMATE FGWEES OF
THE SOCIETY BUT THE PEOPLE THEMSELVES: AND IF WE THINK
PHEW NOT ENILGHrENED ENOUGH TO :EXCERCISE 'THEIR CONTROL
WITH A WHOLESOME DISCRETION, THE REMEDY IS NOT TO TAKE
IT FROM THEM, BUT TO INFORM THEIR DISCRETION."
Thomas Jefferson, Letter to William Charles Jarvis
Septeinbsr 28, 1820
466
Outline
I.
Introduction
I I . History
A. The Administrative Procedure Act of 19^6
3. The Freedom Of Information Act of 1966
I I I . The FOIA Amendments of 197^
1. The Response To SPA v. Mink
a) The National Security Exemption
b) In Camera Review
c ) Segregability
d) The Investigatory Files Exemption
2. Increased Citizen Access
a) Identification,Of Documents
b) The Index Requirement
c ) The EPA Index
d) Fees Fotfoearch and Copying
e) Attorney Fees
3. Changes In Agency Definition And Procedures
a) Definition of Agency
b) Administrative Deadlines
c ) Response To Complaints
d) Appeals
e) Extensions
m-. Sanctions And Congressional Oversight
a) Sanctions
b) The Annual Report Requirement
c ) The EPA Annual Report
IV. The Commercial or Financial Exemption
a) Trade Sccrcts
b^ Privledged
c ) Commercial or Financial
d) Obtained From A Person
e) Confidential
V. The EPA Proposed Regulation On ( b ) ( ^ )
VI.
Advantages Of The EPA Rule
467
I.
Introduction
Federal agencies have steadfastly opposed the Freedom Cf Information Act
from i t s inception.
The Government was sure t o be "bogged down in a mase of
paperwork, the cost would be enormous, and the barest inner-workings of i t s
soul would be naked before the p u b l i c .
Rather than try t o mount public opposition t o the recently passed amendments,
the Government attempted t o maintain a low p r o f i l e .
Perhaps i t succumed t o the
realization that convincing the people that they should oppose knowing what they
themselves were doing t o themselves through t h e i r elected representatives was an
insurmountable task.
Routine press briefings were held, and one-liners were
carried on the evening news.
There were no demonstration-sized crowds awaiting the
opening of the Federal agencies on Monday morning.
There were no parades.
The Federal Government vras not brought t o i t s knees,
No one even knew what the
Act was.
At f i r s t the Act was used primarily by big business and the press, but
gradually the people began t o find out about this new creation and requests
f o r information increased accordingly.
Requests naturally increased, and increased
substantially, but that was the intent of Congress and ultimately the people.
The agencies quickly found ways to deal with the increased requests and responded
with red-tape defenses, repeatedly charging inconsistent and exorbitant search
fees and making l i b e r a l use of the exemptions.
Often what was disclosed looked
l i k e Swiss cheese.
Was the Government genuine in i t s f e e l i n g that the curc was worse than the
disease or was t h i s merely a game of hide and seek?
Of course, the Government
has things i t cannot reveal, but it has even more that i t can and should reveal.
It i s questionable that the Government has something "to hide".
We have a right t o know Khat our Government is doing where administrative Impracticable and the FIOA provides this mechanism.
468
But the question must be asked:
Is any pries too great t o pay?
The rumblings that the Act w i l l
The Act has been and w i l l continue to be refined.
be repealed w i l l gradually fade away as Congress
r e a l i s e s that the Act i s as valuable to them as i t is t o the average c i t i z e n .
The Act does not apply t o Congress or the Judiciary, f o r in theory they axe
p o l i t i c a l l y accountable.
The FOIA applies t o the Federal agencies.
The reasons we need t o know about the FOIA in the context of environmental
law are twofold.
F i r s t , in order t o achieve environmental objectives, i t becomes
necessary t o obtain information bearing on the particular environmental problem.
More than l i k e l y that information w i l l be located within the Federal Agencies.
Whether i t s the Forest Service, the Department of The Interior, the Army Corps
of Engineers or the Department of Transportation, i t i s here that decisions are
made and actions taken that can irreversibly a f f e c t the environment.
The Environmental Protection Agency i s not always the "good guy".
Second,
Wo agency
i s immune from special interests and actions taken by a l l agencies are sometimes
colored by s p e c i a l interest and private gain.
The EPA suffers from the same
a f f l i c t i o n s as do the other agencies, although t o a l e s s e r extent.
we must continue t o p o l i c e the p o l i c e .
Nevertheless,
In sum, i f we know about i t the chances-
are much greater that we can do something about i t .
The purposes of this paper are t o l ) review the history of the FOIA, 2) t o
categorise and review the amendments of 1 9 3 )
t o elaborate on areas which are
of particular importance t o the Environmental Protection Agency, s p e c i f i c a l l y
the annual reporting requirement and the new EPA regulations, k) t o explain
the nature of the exemption which has most concerned EPA, and 5) t o explain
why other agencies should adopt the EPA approach.
It was my intention t o avoid getting bogged devn in the case^aw and t o
go d i r e c t l y to the statute, the regulations, and the l e g i s l a t i v e history.
The
sources on the subject are limited because the current amendments did not become
e f f e c t i v e until 1975*
A broad overview rather than answers t o a s p e c i f i c l e g a l
nroblem are the focus of the endeavor which led me t o asks What i s the FOIA?
A
II.
History
A.
The Administrative Procedure; Act
Section Three of the Administrative Procedure Act of 19^6*was the f u t i l e
hut well-intentioned attempt by the ?9th Congress t o limit the witholding of
information by the Executive Branch.
untimely attempt.
exemptions:
Admittedly i t was a preliminary and
The Public Information Section began with two important
1) any function of the United States requiring secrecy in the public
interest, or 2) any matter relating s o l e l y t o the internal management of any
2
agency.
If the material sought t o be disclosed did not f a l l within the
exemptions, only then was i t necessary t o proceed t o the disclosure provisions.
True t o its form, the Act became a j u s t i f i c a t i o n f o r witholding
rather than a
requirement that a l l "public information" be d i s c l o s e d . 3
The Act required the disclosure of Final Opinions And Orders "except
Zi
these required f o r good cause to be held c o n f i d e n t i a l . . . "
Public Records were
t o be made available "save as otherwise required by statute", ^and only when the
requestor was a person "properly and d i r e c t l y concerened".^
These d e f i c i e n c i e s ,
together with the lack of good f a i t h agency willingness t o comply led to the
enactment of the Freedom Of Information Act Of 1966.''
This was the f3i r s t act
making disclosure of information the rule rather than the exception.
Effective
precisely one year l a t e r , the Act was signed by President Johnson on July
B. The Freedom Of Information Act
1966.
No longer were agencies able t o deny a p p l i c a b i l i t y of the disclosure
provisions because a person was not "properly and d i r e c t l y concerened".
"Any
o
person" could seek information and upon r e j e c t i o n could f i l e in Federal D i s r i c t
Court to compel production, with the court having the power of in camera inspection^of agency c l a s s i f i c a t i o n s .
cause".
Information could no longer be witheld " f o r good
The two grossly overbroad exemptions were expanded to nine " i n an
attempt to f o r c e agencies to more clearly define t h e i r reasons f o r witholding.
470
Fagc 2
Mcrover, congressional intent made c l e a r that the purpose of the Act was " t o
establish a general philosophy of f u l l agency disclosure unless information i s
exempted under c l e a r l y delineated statutory language and t o provide a procedure
/
by which c i t i z e n s and th^press may obtain information wrongfully w i t h e l d " .
12
Subsection ( a ) ( l ) sets out f i v e c a t e g o r i e s of information which must be
published in the Federal Register f o r the e d i f i c a t i o n of tho/public.
Subsection
( a ) ( 2 ) l i s t s three categories of information which,in accordance with published
rules i s t o be made available f o r public inspection and copying.
Subsection
( a ) ( 3 ) states that " i d e n t i f i a b l e records" are, upon procedural compliance t o
be made promptly a v a i l a b l e .
The D i s t r i c t Court of the United States of either
the d i s t r i c t in which the complainant r e s i d e s , has his p r i n c i p a l place of business,
or in which the agency records are situated, has the power t o enjoin the wrongful
witholding of documents.
Subsection ( a ) ( * 0 s t a t e s that agencies with more than
one voting member axe t o provide voting records of the f i n a l votes of a l l members.
Section (b) sets out the nine exemptions which are:
l ) national s e c u r i t y }
2) related s o l e l y t o the internal personell r u l e s and p r a c t i c e s of an agency;
3) s p e c i f i c a l l y exempted from disclosure by s t a t u t e ; 4) trade secrets and commerc i a l or f i n a n c i a l information obtained from a person and privledged or c o n f i d e n t i a l ;
5) inter-agency or intra-agency memorandums or l e t t e r s which would not be available
by law t o a party other than an agency in l i t i g a t i o n with the agency; 6) personell
and medical f i l e s and similar f i l e s , the d i s c l o s u r e of which would constitute
a c l e a r l y unwarranted invasion of personell privacy; 7) investigatory records;
8) contained in or r e l a t e d to examination, operating or condition r e p o r t s , prepared
by, or on behalf o f , or f o r the use of an agency responsible f o r the regulation
or supervision of f i n a n c i a l s i t u a t i o n s ; and 9) g e o l o g i c a l and geophysical
information and data, including maps, concerning w e l l s .
F i n a l l y , Section ( c )
r e i t e r a t e s that information i s to be witheld only as s p e c i f i c a l l y stated in the Act.
471
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As i s the case with any statute, only the passage of time could point up
the f a i l u r e s and p a r t i a l inadequacies of the l e g i s l a t i v e d r a f t i n g .
The intent
of Congress was as c l e a r as agency ingenuity t o avoid i t s application subsequently
became.
The early development of the case law f a i l e d t o genuinely e f f e c t u a t e
t h i s intent.
13
In the case of EPA v. Kink,
33 members of Congress sought information on
a proposed underwater nuclear t e s t .
The documents were witheld under exemption
( b ) ( l ) which s t a t e s : "This section does not apply t o matters that are ( l )
s p e c i f i c a l l y required by Executive order t o be kept secret in the i n t e r e s t of
national defense or f o r e i g n p o l i c y . "
The court held that i f the Executive Branch
determined material t o be c l a s s i f i e d under this exemption, the court was powerl e s s t o review the substantive appropriateness of the c l a s s i f i c a t i o n .
In camera
review was not available in national security matters.
The response was immediate.
Within 37 days l e g i s l a t i o n was i n t r o d u c e d . ^
In 1972 Congress began hearings of the e f f e c t i v e n e s s of the16 1966 Act. 1 - 5 The 19?4
amendments were drafted in response t o a unanimous r e p o r t .
Claiming the
changes t o be "unconstitutional and unworkable", President Ford vetoed the amend17
ments.
The veto was overwhelmingly r e j e c t e d . "
The Act took e f f e c t in f i n a l
form on February 19, 1975.
III.
The Amendments
1.
The Response To Kink
Three of the l b amendments were a d i r e c t response t o EPA v . Mink:
l ) the
narrowing of the national security exemption, 2 ) a change in the approach t o in
camera r-.vui'o^-'i
inspection,
and 3) an affirmative requirement of s e g r e g a b i l i t y .
f.'ui
The change
in the exemption was a l s o r e l a t e d , although i n d i r e c t l y .
The national security exemption has, and w i l l continue t o be an important
area because of the developing and everpresent question of separation of powers.
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Page
The President must "be allowed t o conduct f o r e i g n a f f a i r s .
what is "best in the i n t e r e s t of national defense.
2?
He alone must decide
But recent events had shown
that national security can be used t o avoid the d i s c l o s u r e of events obviously
only p o l i t i c a l l y embarrasing and not c r u c i a l t o our national s u r v i v a l .
In a sense the power of the President t o determine v?hat i s national security
has always been absolute.
Under the
l$k6
Act the action taken by the
President t o prevent d i s c l o s u r e merely had t o be in the "public i n t e r e s t " .
The 1966 Act f a i l e d t o deal with the substantive aspect of the c l a s s i f i c a t i o n ,
but only sought t o insure that the procedural requirement of an Executive order
was complied with.
So the procedural requirement was strengthened, but t h i s
did l i t t l e t o prevent the rubber-stamping of information as c l a s s i f i e d by the
routine issuance of Executive orders.
The 197^ Act dealt with the substantive
c r i t e r i a by narrowing the information that could be witheld t o materials which
1o
were "in f a c t properly c l a s s i f i e d pursuant t o such Executive o r d e r " . " '
The Conference Report" makes c l e a r that both the substantive and procedural
c r i t e r i a are t o be reviewed by the court and that t h i s can be done in camera.
The Conferees s p e c i f i c a l l y s t a t e that they intend to override Mink in t h i s regard.
However, in camera inspection i s not appropriate in every case.
The Executive
should be able t o e s t a b l i s h by detailed a f f i d a v i t s that disclosure of the information
would be harmful. 21*
This procedure i s based on the unique insights of the
09
Executive, and thus these a f f i d a v i t s must be given "substantial weight".*""
Great deference i s s t i l l given by the court t o national security c l a s s i f i c a t i o n s
The courts are generally unwilling t o assert t h e i r statutory right t o review t h i s
type of document. ^
segregability.
An integral part of these changes i s the amendment requiring
Merely because the document or stack of documents i s c l a s s i f i e d
does not mean that a l l the information contained therein i s c l a s s i f i e d .
The 197'*
amendments provide that "any reasonably segregable portion of a record s h a l l be
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Page 2?
provided t o any person requesting i t a f t e r d e l e t i o n of those portions which are
2k
exempt".
Presumably, part of the document can be provided p r i o r to in camera
inspection.
The court can then determine whether the remainder ought t o be given
a c l o s e r examination, or whether the claim of exemption ha^been substantiated.
The second and only other exemption d e a l t with by the 197^ amendments was
the exemption f o r investigatory f i l e s . The 1966 Act protected "investigatory
f i l e s compiled f o r law enforcement purposes except t o the extent available by
law t o a party other than an agendy".
2 "5
But the 1966 Act was drafted at a time
i
when the shocking d i s c l o s u r e s of domestic a c t i v i t i e s by the FBI anc^'CIA were yet
t o come.
.Many of these abuses took place under the guise of "national s e c u r i t y " .
The 197'+ amendments greatly narrowed t h i s exemption by providing much needed
detail.
T he
information w i l l be protected only t o the extent that the production
of such records would a) i n t e r f e r e with enforcement proceedings, b) deprive a
perscn of a r i g h t t o a f a i r t r i a l or an impartial adjudication, c ) constitute
an unwarranted invasion of privacy, d) d i s c l o s e the identity of a c o n f i d e n t i a l
s o u r c e . . . , e ) d i s c l o s e investigative techniques and procedures, or f ) endanger
26
the l i f e or physical s a f t e y oiyiaw enforcement p e r s o n e l l .
The Conferees indicated that information was not t o be witheld concerning
routine techniques and procedures already well known t o the public, such as
b a l l i s t i c s t e s t s , f i n g e r p r i n t i n g , and other s c i e n t i f i c t e s t s or commonly known
techniques,
" o r does i t include administrative s t a f f
manuals and Instructions
t o s t a f f t h a t a f f e c t a member of the p u b l i c . Approval was expressed of the Justice
i
Department p r a c t i c e ofwaiving l e g a l exemptions f o r witholding h i s t o r i c i n v e s t i g 27
atory records over 15 years old.
In view of the reasons why Congress saw f i t
t o p r o t e c t the average c i t i z e n from wrongful information gathering by promulgating
t h i s amendment, they could have gone one step f u r t h e r .
Citizens cannot help but
v:crry that i f they make an information request they r i s k the commencement of a
f i l e where there may have been none previously.
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2.
Increased Citizen Access
Before the 197^ amendments, thc^FOIA was primarily a t o o l f o r the press,
the r i c h , and big business.
roadblocks and red tape.
To the average c i t i z e n , the 1966 Act was a s e r i e s of
The agencies would i n i t i a l l y refuse t o d i s c l o s e , hoping
t o f o r c e the requestor t o balance the c o s t :of a lawsuit with the value of the
information sought.
Some departments routinely claimed that records were not
described r i t h the r e q u i s i t e s p e c i f i c i t y .
Others charged exorbitant search f e e s .
Fees f o r copying varied with the agency, but mysteriously seemed to increase as
the value of the information increased.
Li sum, the Act was useless t o the
average c i t i z e n .
Increasingly
aware
of the A c t ' s f a i l i n g s , Congress drafted four amendments
d i r e c t l y increasing access t o information.
The amendments focused on: l ) the
i d e n t i f i c a t i o n of documents, 2) the requirement of indexing, 3) f e e s f o r search
and copying, and k) attorney f e e s .
A ) . . I d e n t i f i c a t i o n Of Documents
The 1966 Act required that each agency
on request f o r i d e n t i f i a b l e records
made? in accordance with published r u l e s " . . . " s h a l l make the records available to
2P
any person".. "
The agencies considered " i d e n t i f i a b l e rccords" t o be a standard
subject t c t h e i r own i n t e r p r e t a t i o n .
s p e c i a l methods of recordkeeping.
Furthermore, the agencies had t h e i r OKII
The agencies might deny a request, not because
they could not comprehend which document was referred t o , but because within the
context of t h e i r s p e c i a l peocedure, the request was not " i d e n t i f i a b l e " . The
2° 197^
amendments require merely that the record must be "reasonably described . ' Of course,
the question always remains as t c what i s "reasonable".
Perhaps the amendment
discussed immediately below w i l l help l i m i t the n e c e s s i t y f o r j u d i c i a l i n t e r pretation.
5 ) . . T h e Index
Recognizing
theRequirement
d i f f i c u l t i e s which could arise with the above requirement,
Page 2?
50^
the requirement was added that there "be an index published on matters "issued,
adopted, or promulgated.
30
Problems were e a s i l y f o r s e e a b l e with the requirement
31
that the index be kept " c u r r e n t T h e
amendments provide that the agency
should "promptly publish, quarterly, or more f r e q u e n t l y , and d i s t r i b u t e (by sale
\
37
or otherwise) c o p i e s of each index or supplements t h e r e t o " .
The agency can
be released from t h i s duty bjr publishing an, order in the Federal Register
indicating that publication, would be unnecessary and impracticable.
33
;Eut copies
must be provided at a cost not t o exceed, the d i r e c t c o s t s of duplication.
3k
Sanctions against a v i o l a t i o n of t h i s requirement prevents the c i t i n g of the
35
order or opinion as precedent.
C..The 'Environmental Protection Agency Index
The EPA Index Of P o l i c i e s and Final
o/f Opinions i s a 208 page document g i v i n g
p r c c i s e i d e n t i f i c a t i o n of EPA documents.
document index.
I t c o n s i s t s of a subject matter and
The date of signature, the o f f i c e r responsible f o r the d e c i s i o n ,
and the: document l o c a t i o n are a l s o given.
The regulations should be consulted on
subjects too recent t o be included inthe index.-'
provide how and where t o send the request.
The regulations w i l l also
EFA requests should be sent t o the
Freedom Of Information O f f i c e in Washington, or t o the appropriate Regional
Office.
It i s requested by the Agency that the requester note both 38
on the l e t t e r
and the envelope that information i s being requested under the FOiA.
This i s
t o help in meeting the 10-day deadline.
If f o r example, one were requesting information pertaining t o the e x t i n c t i o n
of coyotes, the requested documents might be e n t i t l e d lu2.05.07, Humane Coyote
Getter Chemical
Cartridges, Referred t o U.S. Attorney, 3/29/72, Svorc, Enf. Div.,
OO
Reg. V I I . - "
162 denotes the broad c a t c g o r i c a l heading "Regulations For the
Enforcement Of Thq^oderal I n s e c t i c i d e , Fungicide, and Rodenticide A c t " .
.05
denotes the sub-category "Pesticide Enforcement Action (Referral t o J u s t i c e ) " .
Page 2?
.07 i s the Regional O f f i c e (Region VII) that originated the document and the o f f i c e
from which the document may bs obtained.
From the degree of s p e c i f i c i t y
demonstrated by t h i s excerpt from the index, i t i s easy t o see how the indexing
requirement has helped a l l e v i a t e the problem of d e s c r i p t i o n .
D). .Fees For Search And Copying
The 197^ amendments provide that "each agency s h a l l promulgate regulations
pursuant t o notice and r e c i e p t of public comment s p e c i f y i n g a uniform schedule of
f e e s applicable t o a l l constituent units of such agency.
Such f e e s s h a l l be
limited t o reasonable standard charges f o r document search and duplication and
provide f o r recovery of only the d i r e c t c o s t of search and d u p l i c a t i o n . "
kO
The SPA charges no search f e e s f o r search time l e s s than one half-hour and
hi
f e e s may be waived i f EPA f i n d s i t t o be in the public i n t e r e s t .
A waiver of
f e e s would most frequently occur where a public i n t e r s t group or the press i s
Involved.
2
The t o t a l amount of f e e s c o l l e c t e d in 1975 was $40,353. 2 8 . ^
The
1966
Act f a i l e d t o provide any guidelines whatsoever regarding f e e s .
The EPA f e e
schedule is as f o l l o w s :
Record Search Time
. . . . . . . $ 2 . 5 0 per half-hour
In House Computer Programming
Reproduction of Documents
$4.50 per half-hour
..
$0.20 per page
S )..Attorney Fe es
The crcation of this provision i s a welcome change t o the average c i t i z e n
who may no longer "oe hopelessly discouraged from bringing a p o t e n t i a l l y s u c c e s s f u l
claim. The court now has d i s c r e t i o n t o award attorney f e e s to the s u c c e s s f u l
45
litigant.
Although the complainant must "substantially p r e v a i l " ,
standard i s not explained by the Conference Report.
that
There i s no way to determine
the e f f e c t i v e n e s s of this provision, as there is s t i l l some r i s k involved, but
i t s potential e f f e c t cannot be gainsaid.
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3.
Changes In Agency Definition And Procedures
Agencies often sought t o stem the r i s i n g t i d e of FOIA requests by the use
of delay at each stage of the p r o c e s s .
In addition, t e c h n i c a l i t i e s in the 1966
Act prevented i t s application t o many parts of the Executive Branch.
The third
s e r i e s of amendments t o the 1966 Act remedied these problems with changes designed
t o - l ) broaden the d e f i n i t i o n of "agency", 2 ) shorten the deadline f o r response t o
complaints, and provide f o r expedited appeals.
A ) . . D e f i n i t i o n Of Agency
The 1966 Act did not f a i l as a r e s u l t of poor draftsmanship in t h i s area.
I t f a i l e d as a r e s u l t of fault;/ j u d i c i a l i n t e r p r e t a t i o n .
the intent of Congress unmistakable.
The 197^ provision made
The FOIA was strengthened t o apply t o "any
executive department, military department, Government corporation, Government
c o n t r o l l e d corporation, or other establishment in the Executive Branch of the
Government (including the Executive O f f i c e of The President) or aSi'j independent
regulatory agency.
However the Conference Report indicates that t h i s does not
mean to apply t o the President's immediate personal s t a f f or'units in the Executive
hi
O f f i c e whose sole function i s t o axlvise and a s s i s t the President.
3)..Administrative Deadlines
The agencies have 10 days t o decide whether t o respond t o the o r i g i n a l
request, at which time they must give n o t i c e t o the requestor of t h e i r d e t e r mination.
In addition, the reasons therefor, and notice of the r i g h t t o appeal
must be g i v e n . '
The 10 day deadline i s meaningless, however, without an
e f f e c t i v e sanctions provision. Many agencies are not complying with the deadline.
C)..Response To Complaints
Agencies have 30 days t o respond t o complaints under the 197^ amendments,
as opposed t o the 1°66 Act under which complaints were governed
50^
by FRCP 12(a).
Page
2?
D)..Appeals
Appeals are t o be deternined within 20 working days"** and the ajnendments
»
c12
s p e c i f i c a l l y provide forexpedited appeals.
The 1966 Act requirement that FOIA
cases take precedence in the D i s t r i c t Court i s extended t o appeals.
They are t o
"take precedence on the docket over a l l cases, and s h a l l be assigned f o r hearing and
53
t r i a l or f o r argument at the e a r l i e s t p r a c t i c a b l e date and expedited in every way."
E ) . . Extensions
Extensions are given in "unusual circumstances",
ch.
but t h i s applies only t o
55
the processing of the request. ^ I f , f o r exampl?, the agency must consult
another agency of&f the material i s voluminous, o^if the information i s at a
r e g i o n a l o f f i c e , n o t i c e i s t o be given s t a t i n g the reason f o r the delay and the
p r o j e c t e d date of compliance."^
Sanctions And Congressional Oversight
While the fourth s e r i e s of ajnendments did not d i r e c t l y address c i t i z e n access,
they are p o t e n t i a l l y the most important in the Act.
The sanctions provision deals
with the wrongful witholding ofinformation by government employees, and the annual
r e p o r t i n g provision i s designed t o insure e f f e c t i v e Congressional oversight.
A). .Sanctions
The sanctions provision was passed as a s p e c i a l e f f o r t t o curb the lack of
prosecutions f o r wrongful, witholding and t o prevent the passing of the buck;
The
C i v i l Service Commission procedures resulted in no reported case of d i s c i p l i n a r y
action f o r •
/aN v i o l a t i o n of th FOIA.
The most widely discussed, aspect o""f the
amendment i s the unique r e l a t i o n s h i p between the courts and the C i v i l Service
Commission.
place.
witheld.
The court must do three things before t h i s r e l a t i o n s h i p w i l l take
F i r s t , the court must order the production of agency .records improperly
Second, the court must have assessed attorney f e e s against the United
States, thereby indicating that complainant has "substantially prevailed".
Third,
the court must make a f i n d i n g that the circumstances "raises question" whether' the
50^
50^
Page
witholding was arbitrary or capricious.
must be instituted by the Commission,
2?
I f these requirements are met, a proceeding
The agency should receive a report by the
CQ
Commission and take the recommended action.-'
If the p o t e n t i a l l i a b i l i t y of an employee i s t o be increased, the agencies
must take care t o put employees on notice of this f a c t .
The employee may wish
t o rely on, the advice of counsel before releasing th^'information, but i t i s ' u n resolved whether t h i s w i l l r e l i e v e him of l i a b i l i t y .
Question has also arisen as
t o whether a cabinet o f f i c e r could be removed without the consent of the
CO
President.
One must also consider whether the standard should be arbitrary and
capricious as in the typical administrative setting, or with reference t o the
c 9a
intent and purposes of the Act alone.-'
f.'hile t h i s provision only deals with the wrongful witholding of information,
the^PA regulations also deal with the wrongful disclosure of business information."
Sanctions include dismissal, f i n e , suspension, or criminal prosecution.
However,
61
the EPA took no d i s c i p l i n a r y action under either of these sanctions in 1975.
This does not indicate a lack of e f f e c t i v e n e s s , but rather, that EPA's policy
cf l i b e r a l disclosure i s being effectuated.
However the sanctions previsions may
ultimately develop, wrongful witholding should not be l e f t t o ordinary administrative
procedures.
B)..The Annual Report Requirement
In the 1966 version of the FOIA there was no requirement of an annual
report.
The 197^ amendments established the requirement that a report be
completed by March 1 of each year, (presumably t o threaten the agencies with
budget cuts) t o be submitted to 62
the Speaker of the House of Representatives
and the President of The Senate.
.But there was one glaring ommission.
Congress
f a i l e d t o require the agencies to report on, the number of annual requests per
agency!
It was therefore impossible t o t e l l i f the 197^- amendments had increased
access t o government f i l e s .
pre-amendment foot-dragging?
How much had grants of information increased over
Some agencies provide this data as a good f a i t h e f f o r t
t o comply with the s p i r i t of the act, while others provide the information
merely as support f o r the proposition that the increased demand f o r government
information was extremely "burdensome.
The Environmental Protection Agency received a t o t a l of 1,94-7 FOIA
6?
requests In 1975.
The- Consumer Product Saftey Commission received 400 in
19?4, ^'3,500 in 1 9 7 5 . ^
The Central Intelligence Agency received 193 requests
in 1974,^6,609 in 1 9 7 5 . ^
The Federal 3ureau of Investigation together
with
68 6°
the Department of Justice received over 25,000 requests in 1975.
' '
" r ith
regard t c these l a t t e r three agencies however, i t must be remembered that Congress
s p e c i f i c a l l y enhanced access t o these agencies by amending exemptions ( b ) ( l )
(national s e c u r i t y ) and ( b ) ( 7 ) (investigatory f i l e s ) , while It broadened no
other exemptions.
It i s obvious that Congress wanted these requests t o increase.
One can only determine how many requests were made t o each agency by examining their
FOIA annual report, but these figures are provided only in the discretion of
the agency.
What Congress did require was that the agencies keep a record of the
70
number of denials.
Of what significance i s an increase in requests, i f there
is a like increase in denials, with the result being that the same amount of
information i s ultimately disclosed?
Common sense should indicate that what
i s disclosed i s never as important as what i s denied.
Congress provided that each report s h a l l include:
(1) the number of determinations made by such agency not t o comply
with requests f o r records made t o such agency under subsection (a)
and the reasons f o r such determination;
(2) the number of appeals made by persons under subsection ( a ) ( 6 ) , the
result of such appeals, and the reason f o r the action upon each
appeal that results in a denial of information;
( 3 ) the names and t i t l e s or positions cfcach person responsible f o r
the denial of records requested under this section, and the number
of instances of participation of each;
(4) the results of each proceeding conducted pursuant to subsection
(a-)(*00?)» including a report of the disciplinary action taken
against the o f f i c e r or employee who was primarily responsible
481
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50^
f o r improperly witholding records or an explanation of why disciplinary
action was not taken;
(5) a copy of every rule made by such agency regarding this section;
(6) a copy of the f e e schedule and the t o t a l amount of f e e s c o l l e c t e d
by the agency f o r making records available under t h i s section;
( ? ) such other information as indicates e f f o r t s t o administer f u l l y
this section.
C)..?he Environmental Protection Agency Annual Report
To i l l u s t r a t e a t y p i c a l annual report, the 1975 EPA Report w i l l be examined
as t o certain s p e c i f i c sections.
I t w i l l be noted that rarely does EPA deny
requests, and in those instances where information i s denied i t i s l i k e l y t o
be under exemption (h) which w i l l be discussed below.
Exemptions
Number of times invoked
(£)....
(5)
(6 .
(7)
(2 (6)
:
( 2 ) ( 5 (6)
(<0(55
(5)(7)
72
79
19
2
2
1
1
2
1
hO CFR 2.113(a)
ITumber of times invoked 7 ^
(1) record not known t o e x i s t . . . . . . . . . . . . . . . . . . . . 2
(2) record not in EPA's possession
2
(3) published in Federal Register
....1
(7) has not yet been located
.....3
( 5 ) ( 6 ) exempt and a third person
must be c o n s u l t e d . . .
...2
(1)(3)
1
The t o t a l number of intra-agency appeals from adverse i n i t i a l decisions
74
made pursuant t o subsection ( a ) ( 6 ) was k2,'
10 appeals resulted in the release
nci
of the information in f u l l .
in f u l l . 7 o
12 appeals resulted in the denial of the information
5 cases were reported in which appeal resulted in a denial in p a r t . ' 7
The EPA reported that 15 appeals had not been f i n a l i z e d , 13 of which were requests
under the Federal Insecticide, Fungicide, and Rodenticide Act. 7 ®
Instances of participation In denials range from
involving the Deputy
Assistant'Administrator f o r Pesticide Programs, t o 15 f o r the Deputy Assistant
Tv,cr-
14
Administrator f o r Administration, t o an average of 2 f o r the remainder of the
participants.
General Counsel was responsible f o r a l l denial on appeal (this
\7°
i s providedfor in the SPA r e g u l a t i o n s / ) "
The annual reporting provision provides Congress with the information
necessary f o r e f f e c t i v e oversight of the Act, as well as providing the average
c i t i z e n insight into agency philosophy of implementation of the Act.
Only by
examining the annual report can one determine how e f f e c t i v e the new amendments
have been in broadening access, what the chances are f o r securing the desired
information, and what agencies are disregarding the s p i r i t of the Act.
As can
be seen in the annual report by the SPA 5."••formation i s rarely denied by this agency.
The EPA made an i n i t i a l determination not t o comply with only 118 requests,
and 79 of those were under the sensitive ( b ) ( 4 ) exemption (business confidentiality),® 1
81
3y way of contrast, The FBI denied 5151'0 requests in 1975i° The Department
.
82
of Justice denied 4,1^1,
but i t must be remembered that these agencies receive
the most requests because i t i s they who most frequently deal with the individual.
The Department of Labor rejected 2 , 0 0 3 ; ° The Department
of the Treasury 1,881" '
85
and The Central Intelligence Agency denied 1,512.
PJ.
The Commercial or Financial Exemption:
(b)(4)
Exemption ( b ) ( k ) provides: "This section does not apply t c matters that
arc (k) trade secrets and commercial or qg
f i n a n c i a l information obtained frcm a
person and privledged or c o n f i d e n t i a l . "
The scope c f this provision i s not easily determined from a l i t e r a l reading.
The l e g i s l a t i v e history provides no indication of how nany classes of information
are sought to be exc-nspted.
One extreme interpretation would be l ) trade secrets,
2) commercial information, 3) financial information, k) privledgcd information,
and 5) confidential information, a l l of which must be obtained from a person.
The
exemption
as drafted
unclear.
the construed."
exemptionsOoin
general
and this
exemptionis inextremely
particular
are t o However,
be narrowly
483
Page 2?
50^
The purpose here i s t o determine the scope of this provision "based upon the
l e g i s l a t i v e history with some attention given t o case law developement.
When
one considers the inadequacies of the d r a f t i n g i t becomes c l e a r that in dealing
with t h i s exemption, agencies should formulate^heir own rules and regulations to
f i l l in the gaps l e f t by a patchwork developement of often inconsistent holdings
among the c i r c u i t s .
The Supreme Court has not ruled on the question, so primary
r e s p o n s i b i l i t y has been l e f t t o the courts of lower j u r i s d i c t i o n .
Congress could
make the necessary changes but that cannot be forseen in the near f u t u r e .
Uniform agency r u l e s would solve the problem.
A more reasonable reading of the exemption than the extreme example
given above would interpret the Act as exempting l ) trade s e c r e t s , 2 ) commercial
or f i n a n c i a l information,
has so held
or
3) information privledged or c o n f i d e n t i a l .
One case
88 and has been supported by an Attorney General's memorandum on
go
the exemption. '
Having been based on the l e g i s l a t i v e history, there i s a
strong basis f o r t h i s interpretation.
At f i r s t glance i t does appear that
information privledged or c o n f i d e n t i a l should be exempt regardless of whether
commercial or f i n a n c i a l .
However i t appears the the Memorandum i s based on
the l e g i s l a t i v e history as explained in the Senate version, a version which
°0
was not subsequently enacted.^
The words "commercial or f i n a n c i a l " were substituted in the enacted
version to modify the word " i n f o r m a t i o n " ^ and the "commercial or f i n a n c i a l "
language seems t o a l s o modify the phrase "privledged or c o n f i d e n t i a l " .
Attorney General's Memorandum should be disregarded.
The
Because the provision
as enacted d i f f e r s from the one on which the l e g i s l a t i v e history i s based,
neither House nor Senate Report explain the reason f o r the change.
It would
seem however, that an exemption f o r information which 5s "privledged or c o n f i d e n t i a l "
and not "commercial or f i n a n c i a l " would throw the interpretation of t h i s provision
into chaos.
The provision would automatically become a s h e l t e r f o r information
Page 2?
50^
which would f i t f o r no other exemption.
The majority would exempt l ) trade secrets,
2 ) commercial or f i n a n c i a l information and 3) either privledged or c o n f i d e n t i a l . ^
In other words, there are three requirements, "but only two c l a s s e s of information.
Many questions remain unanswered by case law.
financial"?
What i s "commercial or
What i s the s i g n i f i c a n c e of the phrase "obtained form a person"?
What i s "privledged"?
What i s the meaning of " c o n f i d e n t i a l " ?
Why does Congress
use dangling modifiers?
A..Trade Secrets
There appears t o be no controversy as t o the meaning of the term "trade
secret".
Only one case has considered the question of trade secrets f i n d i n g
that the information was not a trade s e c r e t because i t was not the type of
information one would hesitate t o reveal t o the p u b l i c . G e n e r a l l y
the term
suggests a secret formula or process revealed on a need t o know b a s i s , the
protection of which i s necessary t o protect a competitive p o s i t i o n .
3..Privledged
The term seems t o have been w e l l defined by previous cases in other areas
and thus has caused no problems of interpretation involving exemption 4 .
Virtually a l l of the cases deal with the interpretation of
"confidential".
C..Commercial Or Financial
The question here seems t o turn not on the nature of the information, but
by whom prepared.
court
In the leading case on whether information i s commercial, the
held the information commercial based upon the mere f a c t that i t was
94
prepared by a private defense c o n t r a c t o r .
_
The court construed the business
as a commercial enterprise, which would not want t o share such information with
competitors.
In truth the case seems zo turn on the f a c t ^hat the report was
supplied pursuant to an Air Force plane crash.
The information should have
been considered under the exemption ( b ) ( 1 ) i f indeed i t was national s e c u r i t y
information.
exemption.
The court should not hide i t s reasoning by stretching t h i s
The court seemed f a r morn concerned with protecting the Air Force than
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50^
with commercial information.
The type of information did not seem determinative.
So the only requirement
95
embodied in the term seems t o "be that i t be prepared by a commercial enterprise.
As w i l l be seen, t h i s view has been modified.
Furthermore a commercial enterprise
in the sense of being commercial or f i n a n c i a l does not have t o be involved in
competition.
This would r a i s e the question of whether labor unions and trade
associations could use t h i s exemption.
D..Obtained From A Person
D i f f i c u l t questions a r i s e when one t r i e s t o determine the ramification
96
of the requirement that the information be obtained from a "person".
Again
the l e g i s l a t i v e history i s not h e l p f u l .
The phrase was inserted as a substitute
97
f o r the term " p u b l i c " .
The question i s whether the exemption applies only
t o information obtained from sources outside the government or does i t a l s o
apply t o information generated from within the government i t s e l f ?
The phrase
seems l e s s l i k e l y t o l i m i t the information t o that obtained from sources outside
the government than the e a r l i e r language. An argument can c l e a r l y be made f o r
both s i d e s .
The argument i s very a t t r a c t i v e that "the exemption was not meant
t o allow agencies t o render documents c o n f i d e n t i a l by passing them back and forth
98
among themselves." 7
99
There i s only meager case history f o r the opposing view.
However the
interpretation that some information generated by the government i t s e l f must
be protected seems unavoidable.
The Attorney General's Memorandum points out
that property protected in private hands should a l s o be protected when in the
bands of the government.
"The Treasury Department, f o r example, must be able
t o withold
the secret. Aformulas
developed by i t s p c r s o n e l l f o r inks and paper used
00
TJ
in making currency.
The f i n a l outcome must await a determination by the Supreme Court,
In
the meantime however, agencies should formulate regulations explaining how they
interpret t h i s provision, t o prevent f r i v o l o u s lawsuits.
The government cannot
Page 2?
and w i l l not d i s c l o s e t h i s type of information.
I t w i l l not "be d i s c l o s e d
regardless of the interpretation given "by the c o u r t .
The Act should "be amended
l e s t a common lavr privledge apart from the Act "begin t o develop.
E..Confidential
By f a r the most important part of the exemption i s the requirement that the
information "be " c o n f i d e n t i a l " .
Before proceeding on t o an examination of the
language, i t i s helpful t o re-examine the purposes "behind the exemption, and
who i s sought t o be protected.
The dual purpose most often stated f o r the commercial or f i n a n c i a l
exemption i s l ) the i n t e r e s t of the government in encouraging individuals to
voluntarily submit c o n f i d e n t i a l informatiorj^acilitating the e f f i c i e n t operation
of the Executive Branch, and 2) t o assure these individuals providing such
information that t h e i r privacy w i l l be protected and that no damage t o t h e i r
competitive position w i l l result from having submitted such information."*"^
To determine the meaning of c o n f i d e n t i a l , one must look t o l ) the language,
2) the l e g i s l a t i v e h i s t o r y , 3) the case law, and U) the way s p e c i f i c agencies
have dealt with the problem through regulation.
The language has been previously discussed, i s poorly drafted and i s
confusing.
For the meaning of the term standing alone one must look t o the House
and Senate Reports.
The House Report focuses on the f a c t that the information
should be of the type that would not customarily be released.
The House seemed
most concerned with protecting confidence and r e l i a b i l i t y of the government in
10'
dealing with c o n f i d e n t i a l data.
~
The Senate version merely mentions that the
information not customarily be released.
It seems t o be a question of "governmental
i n t e r e s t s " as f a r as the House Is concerned, but,both houses agree that the
information must not customarily be released.
Although the "customarily released"
t e s t i s no longer s o l e consideration, i t l i e s within the present t e s t .
found t o be i n s u f f i c i e n t , not i n c o r r e c t .
50^
I t was
At any rate one should remember the
Page 2?
50^
argument that t h i s commentary was based on the version which was not subsequently
enacted.
However this part of the exemption was not changed by the enacted version.
Although a l l agencies have regulations dealing with the FOIA, most are
general regulations covering only the bare e s s e n t i a l s . ' ^ " '
the exemptions and make no attempt t o interpret them.
j u d i c i a l construction.
Some merely restate
Some f a i l t o f o l l o w the
The SPA has promulgated regulations s p e c i f i c a l l y dealing
106
with t h i s exemption
and the regulations dealing with t h i s exemption alone are
more extensive than EPA's regulations dealing with the entire Act.
regulations w i l l be discussed in d e t a i l below.
These
S u f f i c e i t t o say here that the
development of the case law has l a r g e l y r e s u l t of the unwillingness of other agencies
t o formulate regulations dealing with the areas which most concern them.
The f i r s t case dealing with the question of c o n f i d e n t i a l i t y formulated a
two part t e s t which i f subsequently followed would have made t h i s exemption the
107
biggest loophole in the Act.
A l l that was said t o be required was that the
person supplying the information wish i t t o be kept c o n f i d e n t i a l .
the information had t o come from outside the government.
interpreted t o o broadly.
The exemption was
Under t h i s interpretation, even an unreasonable
c o n f i d e n t i a l i t y claim would have t o be sustained.
Another court put f o r t h the "customary treatment"
legislative history.
In addition
108
t e s t based on the
While t h i s was more desirable and would t o a degree prevent
unreasonable c o n f i d e n t i a l i t y claims, i t would do so only i f the industry's customary
treatment of such information was reasonable in the f i r s t place.
National Parks- and Conservation Association v. Morton^°was decided by the
D i s t r i c t of Columbia Court in 197^.
Recognizing that the exemption i s t o be
construed narrowly, the court noted the d e f i c i e n c i e s in the "customary treatment"
test.
Of what importance i s customary treatment i f no harm w i l l r e s u l t from
disclosure?
How complete i s a t e s t which requires no j u s t i f i c a t i o n on the part
of the submittor?
With the s p e c i f i c purposes formulated in e a r l i e r cases obviously
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50^
on the mind of the court, the court stated:
Commercial or f i n a n c i a l matter i s " c o n f i d e n t i a l " f o r purposes of
the. exemption i f d i s c l o s u r e of the information i s l i k e l y t o have
either of the f o l l o w i n g e f f e c t s : ( l ) t o impair the Government's
a b i l i t y t o obtain the necessary information in the future; or (2)
t o cause substantial harm t o the competitive p o s i t i o n of the person
from whom the information was obtained."
The case makes c l e a r that there must be some e f f e c t associated with d i s c l o s u r e .
A subjective desire that the information not be released or the o b j e c t i v e f a c t
of customary treatment i s not enough.
be substantial.
Not onl^must there be harm, but i t must
The case also seems t o limit the holding that any information
from any commercial enterprise i s s u f f i c i e n t .
I t seems that there must be
competition, but t h i s i s not d e f i n i t e because the court l e f t open the question
of whether d i s c l o s u r e could be had more r e a d i l y from a business engaged in
monopolistic p r a c t i c e s .
The substantive standard " l i k e l y " t o cause "substantial harm" i s not as
s t r i c t as the standard imposed bv the EPA.
The EPA w i l l not consider the
III
information c o n f i d e n t i a l unless there i s
"substantial harm" w i l l occur.
"substantial l i k l i h o o d " that such
The t e s t in National Parks i s the d e f i n i t e trend.
I t remains t o be seen whether the s t r i c t e r standard proposed by the EPA w i l l
further narrow the exemption as l a t e r interpreted.
V.
The SPA Regulations On ( b ) ( 4 )
As the courts sought t o f a c i l i t a t e e f f e c t i v e j u d i c i a l review through a
system of indexing, i t was intimated that perhaps the solution t o the f a i l u r e c f
j u d i c i a l attempts t o solve the review process could be found in the promulgation
cf r u l e s within the agencies themselves. At the conclusion of the opinion in the
112
case of Vaughn v. Rosen," Judge Wilkey suggested:
Our decision here may sharply stimulate what must be, in the f i n a l
analysis, the simplest and most e f f e c t i v e s o l u t i o n — f o r the agencies
voluntarily t o d i s c l o s e as much information as p o s s i b l e and t o create
internal procedures that w i l l assure that d i s c l o s a b l e information can
be easily separated from that which i s exempt. A sincere p o l i c y of
maximum d i s c l o s u r e would truncate many cf the disputes that are considered
by t h i s court. And i f the remaining burden i s mostly thrust on the
Government.^administrative ingenuity w i l l be d i r e c t e d t o lightening
the load.
Page 2?
I t Is not suprising that the Environmental Protection Agency was the f i r s t
114
t o promulgate such regulations.
One must keep in mind that t h i s i s only
one agency and such rules are attempted as t o only one of the nine exemptions,
hut the other agencies would do well t o adopt a s i m i l a r approach.
79 of the 118
times the EPA denied information i t was done under exemption ( b ) ( 4 ) and i t was
upon t h i s exemption that the regulations are focused.
The EFA has invested substantial time and money in the promulgation of
these regulations.
Considering the f a c t that i t i s more intimately connected with
t h i s particular exemption than any other agency, the regulations have been
drafted by the foremost expert in the f i e l d . I t appears that the best s o l u t i o n
i s f o r agencies most concerned with a particular area t o formulate regulations
dealing with that area that are capable of being adopted by other agencies.
3y this process the s i t u a t i o n w i l l be avoided whereby every agency has a d i f f e r e n t
regulation f o r every exemption, some of which i t knows nothing about.
In order
t o reach an understanding of why t h i s seems necessary, i t i s important t o
examine the reasons why the EPA needs business information, why i t i s necessary
t o have a s p e c i f i c exemption dealing with i t , and,then examine the regulation
in d e t a i l .
In order f o r SPA t o
make
informed decisions under the various laws SPA i s
charged with implementing, i t i s necessary that they have access t o a plethora
of business information.
This information could cover areas involving secret
manufacturing processes and formulas, data concerning proposed new products,
vendor and customer l i s t s and contractual arrangements, production c o s t s ,
proposals f o r expansion and contraction of production, and d e t a i l s of personell
arrangements.
Time would be p r o h i b i t i v e i f court action was necessary each time the EPA
sought c r u c i a l data, so the Agency i s interested in f i n d i n g a balance between
50^
Page 2?
i t s "broad disclosure p o l i c y and the voluntary submission of information.
The
public needs such data, not only t o see how decisions are made within the Agency,
but also t o challenge actions by the Agency.
Industry hesitation i s understandable
however, In view of the f a c t that the requestor may be a competitor merely using
the FOIA t o gain advantage over a r i v a l .
The SPA regulation has sought t o reach
11 5
a balance."-'
The basic ideas behind the EPA regulation are: ( i ) It i s the r e s p o n s i b i l i t y
of a business which makes a c o n f i d e n t i a l i t y claim t o substantiate that claim, and
SPA's r e s p o n s i b i l i t y t o a f f o r d a reasonable opportunity f o r such substantiation.
(2) I f the business does show that the information i s e n t i t l e d t o c o n f i d e n t i a l
treatment EPA should not release the information by excercising d i s c r e t i o n i t may
possess t o release i t .
(3) Where Congress has indicated in a statute that otherwise
c o n f i d e n t i a l information may be made available t o the public In connection with
proceedings conducted by the Agency, SPA should construe that authorisation
broadly t o f o s t e r the usefulness of such proceedings by f a c i l i t a t i n g the
presentation of various viewpoints. ( 4 ) Disclosure t o the public of allegedly
c o n f i d e n t i a l information i s an i r r e v e r s i b l e a c t .
When there i s substantial
doubt about the the propriety of r e l e a s e , the Agency should act in a manner
which would preserve the issues f o r p o s s i b l e j u d i c i a l resolution , rather than in
a manner which would not only moot the matter from a j u d i c i a l standpoint but
a l s o expose Agency o f f i c e r s and employees t o p o s s i b l e criminal prosecution
under 13 U.S.C. 1 9 0 5 . 1 1 6
The
EPA proposed regulation was put f o r t h on Hay 20, 3975» 2nd open to
public comments u n t i l July 9, 19?5«
subsequently enacted version.
As a r e s u l t many changes were made in the
117
The regulations became e f f e c t i v e October 1, 1976."
After examining the major components of the enacted version, the advantages of the
EPA approach w i l l be addressed.
50^
Page 2?
50^
If in the opinion of the Regional EPA o f f i c e a "business i s apt t o regard.
information sought by the Agency as c o n f i d e n t i a l , a notice w i l l be provided that
they may make a c o n f i d e n t i a l i t y claim by c l e a r l y i d e n t i f y i n g what portions are t o
be considered c o n f i d e n t i a l and f o r what duration.
Failure to do so w i l l c o n s t i t u t e
a waiver and the information may be d i s c l o s e d without f u r t h e r notice t o the
a f f e c t e d business.
I f the business asserts an untimely claim, the Agency w i l l
make such e f f o r t s as are administratively p r a c t i c a b l e t o t r e a t the information
as c o n f i d e n t i a l , s u b j e c t t o previous dissemination.
The EPA w i l l provide c i t e s
118
t o the applicable Code of Federal Regulations and Federal Register.
The Agency has provisions f o r both i n i t i a l and f i n a l determinations.
The
situation often a r i s e s where i t i s necessary t o make a preliminary determination
without prcdjudice t o the submittor or requestor, pending a f i n a l determination
upon acquisition and evaluation of a l l relevant f a c t s and s o l i c i t e d comments.
The
Agency made need such an i n i t i a l determination because i ) an FOIA request has been
f i l e d , 2 ) the Agency desires t o determine whether information in i t s possession
i s c o n f i d e n t i a l even though no request has been made, or 3) although
11°
no request has been made, in a l l l i k l i h o o d such eventuality w i l l occur.
Even i f a business has not f i l e d a claim of c o n f i d e n t i a l i t y , the EPA w i l l
possibly c l a s s i f y i t as an 'affected' business and, based upon i t s probable
assertion of a claim i f i t knew EPA proposed t o d i s c l o s e the information, w i l l
n o t i f y a responsible o f f i c i a l of each business t o determine I f they might desire
t o assert such a claim.
Such inquiry w i l l not apply, however, t o a business which
f a i l e d t o respond t o a previous EPA request f o r comments, or t o businesses which
have waived t h e i r claims.
An integral part of the i n i t i a l determination i s the ascertainment of
whether the information "may be e n t i t l e d " t o c o n f i d e n t i a l treatment or i s " c l e a r l y
not e n t i t l e d " t o c o n f i d e n t i a l treatment.
I f the p o s s i b i l i t y e x i s t s , comments are
Page 24
s o l i c i t e d from the submittor and the requestor i s n o t i f i e d of the i n i t i a l d e t e r mination that the information
w i l l not be d i s c l o s e d pending f u r t h e r examination.
The matter i s then r e f e r r e d t o the EPA Legal. O f f i c e .
A' f a i l u r e t o respond t o
comment requests c o n s t i t u t e s a waiver, ^ ' . f i f t e e n day period i s allowed f o r
r e c i e p t of the comments, but an extension can be gained in 'fcxtraordinary circumstances".
Extensions are always given with the consent of the requestor.
The
good f a i t h of the EPA i s again shown by the f a c t that the EPA w i l l even o r a l l y
n o t i f y the business that i t i s about t o r e c e i v e the n o t i c e !
comments are necessary regarding
Of course, no
information'already in the possession of the
i2i
2FA.
Even the comments w i l l be kept c o n f i d e n t i a l .
I f the information i s " c l e a r l y not e n t i t l e d " t o c o n f i d e n t i a l treatment,
there i s a notice given and a waiting period before the informalion i s released.
Notice i s given by c e r t i f i e d mail or personal d e l i v e r y which can be v e r i f i e d .
The notice w i l l state l ) the basis f o r the determination, 2 ) that the information
w i l l be made available on the 10th working day f o l l o w i n g r e c i e p t of the n o t i c e ,
3 ) that extensions are available i f the requirements are met, 4) that the Agency
action may be subject t o j u d i c i a l review under Chapter 7 of T i t l e 5 United States
Code, 5) thed the information d i s c l o s u r e w i l l be delayed upon commencement cf an
action in Federal Court, but 6) that the information w i l l be released i f there
i s a denial of the injunction.
In emergency s i t u a t i o n s , upon a f i n d i n g by General Counsel that d i s c l o s u r e
would "be helpful in a l l e v i a t i n g a situation posing an imminent' and substantial
danger t o the public health or s a f t e y " the periods f c r comment and post
determination waiting period may be shortened
The substantive c r i t e r i a are the heart of the regulations and c l o s e l y
p a r a l l e l the comments which accompany
a claim of c o n f i d e n t i a l i t y .
I 2.208
as set out in f u l l , states that business information i s e n t i t l e d t o c o n f i d e n t i a l
Page 2?
50^
VI.
(a) The "business has asserted a business c o n f i d e n t i a l i t y claim which
has not expired by i t s terms, nor been waived, nor withdrawn;
(b) The business has s a t i s f a c t o r i l y shown that i t has taken reasonable
measures t o protect the c o n f i d e n t i a l i t y of the information and that
i t intends t o continue t o take such measures;
( c ) The information i s not, and has not been, reasonably obtainable
without the business's consent by other persons (other than governmental
bodies) by use of legitimate means (other than by discovery based on a
showing of s p e c i a l need in a j u d i c i a l or q u a s i - j u d i c i a l proceeding;
Mo statute s p e c i f i c a l l y requires d i s c l o s u r e of the information; and
( e ) Either,
(1) The business has s a t i s f a c t o r i l y shown that d i s c l o s u r e of the
information i s l i k e l y t o cause substantial harm t o the business's
competitive p o s i t i o n ; or
(2) The information i s v o l u n t a r i l y submitted information and i t s
d i s c l o s u r e would be l i k e l y t o impair the Government's a b i l i t y
t o obtain necessary information in the f u t u r e .
Reasons For Adoption of The EPA Approach
1.
The regulation has extensive substantive and procedural c r i t e r i a ,
eliminating uncertainty.
Since other agencies have no regulations on s p e c i f i c
subjects or exemptions, the development of the area i s l a r g e l y l e f t t o ingenious
interpretation of non-existent agency regulation and t o agency d i s c r e t i o n .
The
interests of the a f f e c t e d business, the agency, and the people, rarely c o i n c i d e ,
so e f f e c t i v e and s p e c i f i c regulation Is needed t o maintain f a i r dealing and
protect the i n t e r e s t of each.
2.
The need f o r j u d i c i a l review i s reduced but at the same time agency
discre-tior. i s not increased.
This i s due t o the d e f i n i t e framework in which the
operation of the Act takes place.
In camera inspection i s kept t o a minimum.
While in camera inspection i s usually a worthy goal, i t Is subject t o abuse in
that agencies r e c k l e s s l y claiming exemptions can overburden the court in a time
consuming e f f o r t t o determine what is c o n f i d e n t i a l and what i s not.
3.
The EPA regulation f a c i l i t a t e d the use of an indexing system whereby
the businesses are required t o s p e c i f i c a l l y i d e n t i f y what portions are claimed
exempt, and f o r what duration.
In camera inspection becomes necessary, the e f f o r t
w i l l be vastly l e s s time consuming.
Since the comments l i k e l y t o be requested by the EPA pursuant t o a
Page 2?
50^
c o n f i d e n t i a l i t y claim are extensive, and since time and e f f o r t i s needed in the
preparation of them, empty claims of c o n f i d e n t i a l i t y are discouraged,
5.
The regulations c a r e f u l l y consider the recent amendments.
For example,
the regulations c i t e as one of i t s goals, the e d i f i c a t i o n of i t s employees as t o
exactly what should and should not be d i s c l o s e d , thereby f a c i l i t a t i n g the e f f e c t i v e
operation of the sanctions p r o v i s i o n .
6.
One unique feature of the EPA process o f c o n f i d e n t i a l i t y determination
i s the weight a f f o r d e d previous determinations.
I f a Federal Court or the Agency
i t s e l f has c l a s s i f i e d the Information upon court order or p r i o r request, the
requestor w i l l be furnished a c i t e t o the appropriate case or EPA regulation.
This does not mean that requests previously denied w i l l ultimately be denied.
F i r s t , one must consider that i t i s only an i n i t i a l determinstion, and secondly,
that provision i s made f o r subsequent modification in the case of newly discovered
or changed f a c t s or because the e a r l i e r decision was c l e a r l y erroneous.
7.
The EPA attempts t o meet i t s 10-day deadline by providing oral advance
n o t i c e that notice t o respond t o comments i s about t o be received.
However, the
time l i m i t on response only begins t o run upon r e c i e p t of the written n o t i c e .
Extensions can be obtained and the b e n e f i t of the doubt consistently goes t o the
submittor.
8.
The regulations make c l e a r that they are i n e x t r i c a b l y intertwined
with other enactments and that information provided under those acts are treated
in a manner f u l l y explained in the regulations.
Information has often been
provided under acts such as the Clean Air Act, The Federal Water Pollution Control
Act, The r o i s e Control Act, The Safe Drinking Water Act, The Federal Food, Drug,
and Cosmetic Act. The Marine Protection, Research, and Sanctuaries Act, and
The Federal I n s e c t i c i d e , Fungicide, and P.odenticide Act.
9.
I f EPA possesses related items of business information and there are
c h a r a c t e r i s t i c s common t o a l l , they may be treated as a c l a s s f o r one or more
Page 2?
50^
purposes i f i t would serve a u s e f u l purpose.
The r a t i o n a l e f o r c l a s s determin-
ations i s t o make the agencies p o s i t i o n known on information of a c e r t a i n type.
10.
The "broad p o l i c y of d i s c l o s u r e i s e f f e c t u a t e d by putting the burden
of proof on he who seeks t o have information declared c o n f i d e n t i a l .
Claims must
be substantiated t o a degree of "substantial l i k l i h o o d " , and a l l untimely claims
may be considered a waiver.
3ut EPA w i l l p r o t e c t the claim i f
"administratively
practicable".
11.
I f a business i s hesitant t o submit information voluntarily,
i t may
submit comments in the same manner as provided f o r in the normal review process
and may obtain an advance c o n f i d e n t i a l i t y determination.
The Agency w i l l keep
the comments c o n f i d e n t i a l and w i l l not consider the information a part of i t s
records.
I f the information i s found not t o be c o n f i d e n t i a l , i t w i l l be returned.
This greatly f a c i l i t a t e s the voluntary submission of information and i s perhaps
the most important f e a t u r e created by the regulations,
12.
The EPA w i l l refuse t o excercise i t s d i s c r e t i o n t o release the i n f o r -
mation, where i t i s not required t o release the information, i f EPA determines
that the situation so j u s t i f i e s .
13.
The regulation provides f o r d i s c l o s u r e in s p e c i a l circumstances
notwithstanding the f a c t that the information has been determined t o be c o n fidential.
These s i t u a t i o n s include a) d i s c l o s u r e t o Congress or the Comptroller
General, b) d i s c l o s u r e t o other Federal Agencies, c ) court ordered d i s c l o s u r e ,
d) disclosure within the EPA, and disclosure with the consent cf the business.
In addition, an extensive record of a i l d i s c l o s u r e s i s maintained.
14.
The EFA regulation i s not s p e c i f i c a l l y t a i l o r e d t o the EPA.
Its
general rules are the same as other agencies, but i t has formulated a d e t a i l e d
rule dealing with i t s s p e c i a l problem.
I t i s suggested here that a l l agencies
do likewise, and that they d r a f t t h e i r rules in such a way as t o promote uniformity.
FOOTNOTES
1.
Act of June .11, 1946, ch. 324, § 3, 60 Stat. 238 (1946)
(hereinafter c i t e d as A.P.A. i 3)
2.
Id.
3.
House Conm on Government Operations, Clarifying and Protecting The Right of
the Public t o information, rteport "to Accompany b. llbU, h.it. Doc. z:o. l4yy,
c -J zn. 'Jong., bess.
4.
A.P.A. s 3 0 0 (1946)
5.
A.T.A. 5 3 ( c ) (19^6),
6.
Id.
7.
5 U.S.C. § 552 (1970), as amended, 5 U.S.C.A. i 552 (Supp. Feb. 1975).
8.
The comentators agree.
9.
5 U.3.C. -S 552 ( a ) ( 3 ) .
10.
5 U.S.C. I ( a ) ( 4 ) ( B ) .
11.
F.QIA.c (b).
(Hereinafter cited as FOZjV ( l ? 6 6 ) j j (aji
12 Senate Comm. on the Judiciary, Clarifying and Protecting the Right Of The
Public t o Information, And For Other Purposes, Report t o Accompany S.1160,
S. -Doc :To. 813. 89th Cong. , 1st Session. (1965).
13.
410 U.S. 73 (1973).
m.
119 Cong Rec. Index No. V 40 (1973), also 119 Cong Roc. Index " c . VI *»?
(1973); 119 Cong. Rec. Index Ho. VII
15.
16.
A dm ir. is t r at ion and operations of the Freedom of Information Act:
Hearings on U.S. Government Information P o l i c i e s and Practices, Before a
Subconm. of the House Comm. on Government Operations, 92d Cong., 2d Sess,
pts. IV-VI (1972).
H^R. Reg. No. 1419, 92d Cong., 2d Sess. (1972).
17.
10 Weekly Com? of Pres.Doc, 1318 (1974).
18.
120 Cong. Rec. S 19823 (daily ed. IIov. 21, 1974).
120 Cong. Rec. H 10875 (daily ed. Nov..20, 1974).
19.
FOIA ( b ) ( 1 ) (1974),
20.
Freedom of Information Act Amendments, H.R. Rep. No. 1380, 93rd Cong., 2d
Sess. (1974); S. Rep Ho. 1200, 93rd CongTT 2cT3ess7 (1974),
21.
H.R. Rep. ITo. 93-1380, reprinted in 0-972£) U^S. Code Cong, and Ad. "cvrs 6290
THere i n c i t e r c i t e d as Conference Report). " ~
497
Page 2
22. Ccnfcrcnce Report, supra note 21 at 6290.
23.
United States v . I'archetti, 466 F.2d 1309 ( 4 t h Cir), c e r t , j/enied,
409 U.S.,1063 (1972)j Alfred A. Knopf Inc. v . Colby, 509 P. 2d
1362 (4
C i r . ) c e r t , pfenlrd, 421 U.S. 992 (1975).
24.
P.O.I.A. § ( b )
25.
F.0.I.A.f"(b)(?)
26.
F.O.I.A. i ( b ) ( 7 )
27.
Conference Report, supra note 21 at 6292.
28.
F.O.I.A. i
(a)(3)(l966).
29.
F.O.I.A. I
(a)(3)(A)(l974).
30.
F.O.I.A. I
(a)(2)(C)(lo66).
(1974) (concluding paragraph),
(1966).
(1974).
31. P.O.I.A. .1 (a)(3)(c)(l966).
32.
F.O.I.A. i
33.
Id'
3^.
F.O.I.A. i
(A)(2)(1974).
(A)(2)(1974).
35.
3-'
U.S. Environmental Protection Agency;
(I975)i
Index of P o l i c i e s And Final Opinions
(hereafter c i t e d as EPA Index ) .
37.
40 Fed. Reg. 21,991 (1975), (hereinafter cited as EPA Regs).
38.
EPA Index 1 (1975).
EFA Index 183 (1975).
40.
F.O.I.A. ( a ) ( 4 ) ( A )
41.
EPA Regs.
• —
»
TA
— O.
W A
§
(197?).
2.120 ( d ) .
«
-TSX'
**
U9/5)
44.
EPA regs § 2.120 ( d ) .
»!5.
F.O.I.A. 5 (A)(4)(E) (1974).
46.
Id.
47.
F.O.I.A. 1 (e) (1974).
48.
F.C.I.A. § ( a ) ( £ ) ( A ) ( i )
(1974).
498
50^
Page 2?
49.
F.O.I.A. § ( a ) ( 4 ) ( c )
(1974).
50.
Fed. R. Civ. P. 1 2 ( a ) .
51.
F.O.I.A. s ( a ) ( 6 ) ( A ) ( i i ) .
52.
F.O.I.A. § (a)(4)(D).
(1974).
53.
F.O.I.A. § ( a ) ( 4 ) ( D ) :
(1974).
54.
F.O.I.A. § ( a ) ( 6 ) ( B ) .
(1974).
55.
F.O.I.A. s (a)(6)(B).
(1974).
56.
F.O.I.A. § ( a ) ( 6 ) ( 3 ) ( i ) - ( i i i )
58.
F.O.I.A. I (a)(6)(C).
(1974).
(1974).
(1974),
59a.
60. E.P.A. Regs. I 2.211.
61.
S.P.A. Ann. Rep. (1975).
62.
F.O.I.A. § ( d ) .
63.
S.P.A. Ann. Re£. (1975).
6*J.
Consumer Product Saftey Commission Ann, Rep. (1974),
65.
Consumer Product Saftcy Commission Ann. Rep. (1975).
66.
C.I.A. Ann. Ren. (1974).
67.
C.I.A. Ann. Rep. (1975).
68.
F . B . I . Ann.Rep. (1975).
69.
Department of Justice Ann. Rep. (1975).
70.
F.O.I.A, s (d)(1)
71.
72.
F . O . I . A . 5 (d)
(1974).
S.P.A. Ann. Ren. (1975).
73.
Id.
74.-
Id.
75.
Id.
?6.
Id.
(1975).
(1974).
7?.
Id.
nr
i
79.
80.
IcL
81.
F.B.I
82.
Department of Justice Ana* Rep, (1975).
83.
Department of Labor Ann. Hep, (1975) .
.
An^Rej^ ( ^ I S ) -
Department of Thc_Trcasury Ann. Rep. (1975).
p5.
C.I.A. Ann. Rep, (1975).
86.
F.O.I.A. I (b)(4)(1966).
87.
Bristol-Meyers Co.-v. FTC, 424 F.2d 935, cert denied 400 US. 824 (1970);
Soucie v. David 448 F.2d 1067 (1971); Fisher v. Renegotiation Ed, 473^
F.2d 109 (1972).
88.
Barcelcneta Shoe Corp v. Ccmpton, 271 F.ltupp 591 (D.P.R. 1967).
?9.
R Clark, Attorney Generals Memorandum on the Public Information Section
of the Adminstrative Procedure Act ?2 (1967) (hereafter cltcd as Attorney
General* Memorandum).
90.
Her bach " Kueistciner, The Freedom of Information Act: An Semination
of the Commercial or Financial n'nomtlcn, lb Santa Uigra 17 Rev. I94Yl?76).
91.
Id.
92.
national Paries and Conservation Association v. McrW. , 498 F.2d 765
(D.C. Cir. 1974), noted in 88 Harv. ^ Rev. -'J?0 (1974).
93.
M.A. Schapiro v. Sfcx, 339 FJupp (D.D.C. 1972).
94.
Brockman v. Department of the Air Force, 370 sTsupp 73O (M.D. Io;:a 197^').
95-
Herback, supra note 90.
96.
F.O.I.A. ^(b)(4)(1966).
S.- RgP. ^ 1 2 1 9 ,
T
88 t h Cong., 2d Sess. 6 (1964).
S. 5sg. 'To. 813, 8 9 t h
rq^
Cong. , l ^ S e s s . 9 (1965) .
r;
Grumman Aircraft Engineering Corp. v. Renegotiation Board, 425 F.2d
57" (D.C. Cir. 1970).
99.
Rabbit v. Department of-fche Air Force, 3?3 F.Supp IO65 (S.D.F.Y. 1974).
100.
101.
102.
Attorney General^ Memorandum, supra note 89.
Page
103.
S. Hep. 1219, 8 8 t h Cong., 2d Sess. 6 (1964).
Sess. 9 (1965).
2?
S. Rep. 813, 8 9 t h Cong.,
104. "X WKf tofM "Uif«, o k .
105.
f o r examnle, see Dept of I n t e r i o r (43 CFR i l 2 . 1 - 2 . 5 ) ;
—
Dept of Labor (29 CFR i s '70.1-70.79);
C i v i l Service Com (5 CFR s i 294.101-294.1101),
106.
40 Fed. Reg 21,99/ (1975)(proposed EPA Reg. I I 2.201 e i S q . ) .
107.
Benson v. General Services Admstration, 289 K Supp 590 (tf.D. Wash. 1968), *£fd,
415 P.2d 873 ( 9 ° n Cir 1969).
'
108.
Grumman A i r c r a f t Engineering Corp. v. Renegotiation Board, 4-25 F.2d
578 (D.C. Ci-r. 1970).
109.
National Parks
Conservation Association v . Morton, 498 E2d 765
(D.C. Cir, 1974).
110.
Id. at 770.
111.
EPA-T-vg 40 Fed, Reg.21,991 (1975) (Proposed EPA Reg I I 2 . 2 0 8 )
112.
EPA Regs 2.208
113.
Vaughn v.
114.
40 Fed.Re'g. 21987 (1975).
115.
He Fed. Reg. Z i ^ - I D
(1975).
116.
H0 Fed. Reg.
(1975).
11?.
iil Fed. Reg. 36902 (1976).
118.
EPA Rfigs. I 2.203.
119.
EPA, Regs. 1 2.204.
120.
EPA Regs. I 2.204
121.
EPA Regs.12.204 ( d ) ( l ) ( 2 ) , 2.204 ( e ) .
122.
EPA Regs.|2.205 ( f ) .
123.
EPA Regs.I2.205 ( g ) .
i<84 E2d 828 (1973).
(c)(2)(i).
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