FOIA Exemptions: Understanding Agency Discretion in Document Production

1. 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

2. 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

3. 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

4. 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

5. 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)

6. 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.

7. 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?

8. 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.

9. 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

10. 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?

11. 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

12. 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?

13. 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

14. 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?

15. 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

16. 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.

17. 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?