FOIA Exemptions by gnw27033

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									       FOIA Exemptions

   There are 9 classes of documents that the agency
    may refuse to produce
      This is a discretionary decision unless other

       law further restricts disclosure
      For example, there are additional law protecting

       trade secrets and classified materials


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       Confidential Private Information - Chrysler
       Corp. v. Brown
   What did Chrysler try to enjoin?
   Does the APA create a direct right to enjoin such
    disclosures?
   How could the APA be used to support the
    injunction?
      Sec 10 of the APA which prohibits agency
       actions contrary to law
   What is the best argument for blocking release?
      If that fails, you are left with arbitrary and
       capricious - hard to make
                                                        2
       What if the Agency Does Not Want to
       Admit the Document Exists?
   Ordinarily, any proper request must receive an answer
    stating whether there is any responsive information, even
    if the requested information is exempt from disclosure.
   In some narrow circumstances, acknowledgement of the
    existence of a record can produce consequences similar
    to those resulting from disclosure of the record itself.
      Admitting you have a record about a confidential
        informant would give away the identity


                                                                3
    What if You Ask for an Excluded Record?
   The exclusions allow an agency to treat certain
    exempt records as if the records were not
    subject to the FOIA.
   An agency is not required to confirm the
    existence of these records.
   If these records are requested, the agency may
    respond that there are no disclosable records
    responsive to the request.
      Glomar response
                                                      4
        Glomar Response
   As you may know, a "Glomar" response is an agency's express
    refusal even to confirm or deny the existence of any records
    responsive to a FOIA request. This type of response was first
    judicially recognized in the national security context. Phillippi v.
    CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether
    CIA could refuse to confirm or deny its ties to Howard Hughes'
    submarine retrieval ship, the Glomar Explorer). Although the
    "Glomarization" principle originated in a FOIA exemption (1) case,
    it can be applied in cases involving other FOIA exemptions as well,
    in particular privacy exemptions (6) and (7)(C).
   A "Glomar" response can be justified only when the confirmation
    or denial of the existence of responsive records would, in and of
    itself, reveal exempt information. (DOJ memo)

                                                                           5
       Exemption 1.--Classified Documents

   The first FOIA exemption permits the withholding
    of properly classified documents. Information may
    be classified in the interest of national defense or
    foreign policy.
   The government will often refuse to confirm or
    deny if the record even exists.


                                                           6
       Frugone v. CIA, 169 F.3d 772 (D.C. Cir.
       1999)

   Plaintiff claims he worked for the CIA for 15 years
    and deserves a pension
   He asks for his CIA employment records to
    document his employment
   CIA refuses to admit he worked for them or to
    produce any records, because showing he was an
    agent would hurt agency work
      Does he get his records?

      Where does this leave him if he does not?
                                                          7
      Exemption 2.--Internal Personnel Rules
      and Practices

   The second FOIA exemption covers matters that
    are related solely to an agency's internal
    personnel rules and practices.




                                                    8
      Exemption 2 – Types of Documents
      Exempted
   First, information relating to personnel rules or internal
    agency practices is exempt if it is a administrative matter
    that does not affect the public
      Low Exemption 2 cases

   Second, an internal administrative manual can be
    exempt if disclosure would risk circumvention of law or
    agency regulations
   In order to fall into this category, the material will
    normally have to regulate internal agency conduct rather
    than public behavior.
      High Exemption 2 cases

                                                              9
       Examples

   Forest Service does not want to release the spotted owl
    location maps to the bird watchers
      Is this exemption 2?

      Do the maps relate to personnel matters?

   HHS does not want to release the Medicare Policy
    Guidelines Manual, which directs how to pay claims
      Is this exemption 2?

      Is it a high exemption 2?


                                                              10
       Exemption 3.--Information Exempt Under
       Other Laws

   The third exemption incorporates into the FOIA other
    laws that restrict the availability of information.
      (A) requires that the matters be withheld from the

       public in such a manner as to leave no discretion on
       the issue, or
      (B) establishes particular criteria for withholding or

       refers to particular types of matters to be withheld. IRS
       records are one example

                                                               11
       Example
   Chinese dissident wants to get a US visa, but is denied
   He asks for all info related to his visa, fearing Chinese
    government interference
   INS refuses, relies on statute:
      The court observed that Section 1202(f) does not give
       the Secretary of State any discretion on the issue of
       whether visa records should “be withheld from the
       public”; it just gives the Secretary discretion to
       disclose visa records to a court in some situations.
   Why would Congress want to protect the information in
    the Visa process? Even the margin notes?
                                                                12
       Exemption 4.--Confidential Business
       Information
   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
      DCC - 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
                                                                  13
       Commercial and Financial Information

   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?
                                                                14
       Are trade secret protections absolute?

   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


                                                   15
       E.O. 12600
    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.
                                                             16
       Clinical Trial Data

   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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