FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1983

FOIA Update
Vol. IV, No. 4
1983


FOIA Counselor: Questions & Answers

What form of notice should agencies give FOIA requesters about "cut-off" dates?

A "cut-off" date is used in FOIA processing to establish the records to be included as responsive to a FOIA request; records which post-date such a date are not included. Agencies use a variety of different "cut-off" dates, such as the date of a FOIA request; the date of its receipt at the proper office in the agency; the point at which a record search is initiated or the time of its completion; or even the point at which all FOIA processing is concluded. Although there is generally no obligation to respond to a FOIA request with agency records that are generated subsequent to it, see, e.g., Tuchinsky v. Selective Service System, 418 F.2d 155, 158-59 (7th Cir. 1969), agencies should give requesters notice of the "cut-off" dates they use, particularly the earlier ones. See McGehee v. CIA, 697 F.2d 1095, 1100-05 (D.C. Cir.), vacated on other grounds on panel reh'g, reh'g en banc denied, 711 F.2d 1076 (D.C. Cir. 1983). Such notice can be given by promulgating a specific regulation addressing this point, see, e.g., 28 C.F.R. § 16.40)). (proposed), 48 Fed. Reg. 35895 (August 8, 1983), and all agencies should do so. Accord McGehee v. CIA, 697 F.2d at 1105.

Can Exemption 4 be invoked to protect personal financial information?

Yes. Exemption 4 protection can be extended to any privileged or confidential financial information, regardless of whether it concerns a business or an individual. This was first recognized expressly in Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 78 (D.C. Cir. 1974) (personal financial information derived from loan applications), and was emphasized more recently in Washington Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982) (personal financial data of agency consultants). Indeed, Exemption 4 should always be considered as a means of protecting personal financial information because its applicability to such data may in some instances be even greater than that of Exemption 6. See, e.g., id. at 269.

Does commercial information lose its Exemption 4 protection with the passage of time?

Not necessarily. Commercial information remains entitled to Exemption 4 protection so long as its disclosure would be likely to cause substantial competitive harm. For example, in Timken Co. v. United States Customs Service, 531 F. Supp. 194, 200-01 (D.D.C. 1981), the U.S. District Court for the District of Columbia upheld the application of Exemption 4 to records containing business data as much as ten years old; notwithstanding the age of the information the court found that disclosure was likely to result in substantial competitive harm to the submitter by permitting competitors to make projections of the company's current and future market strategies and competitive structure. See also, e.g., Braintree Electric Light Department v. DOE, 49 F. Supp. 287, 290-91 (D.D.C. 1980) (six-year-old data protected). Of course, the likelihood of there being substantial competitive harm resulting from a FOIA disclosure does generally diminish with the aging of data, so this factor is always a significant consideration.

How should the fourth criterion of the Justice Department's fee waiver guidelines (see FOIA Update, Jan. 1983 at 3-4) be applied to established media representatives?

Under the fourth fee waiver criterion, an agency considering a fee waiver request should evaluate the requester's ability and intention to disseminate the information in question to the general public. Established media representatives, as well as representatives of other organizations possessing manifest publication capabilities should readily be able to satisfy this dissemination criterion. As a practical matter, such requesters need not be required to specify a particular published work or broadcast in which the requested information will appear; their ability and intention to disseminate significant information can be accepted at face value. Therefore, absent some specific compelling reason to doubt that such a requester will disseminate requested information to the general public, his or her plain statement of intention to do so should be taken in satisfaction of this one criterion.

Can commercial information ever be protected under Exemption 5?

Yes. In Federal Open Market Committee v. Merrill, 443 U.S. 340, 360 (1979), the Supreme Court held that "qualified privilege for confidential commercial information," based upon Fed.R.Civ.P. 26(c)(7), is incorporated into Exemption 5. This privilege is temporal in nature and protects commercial information "generated by the government itself" in connection with its business activities. For example, in Government Land Bank v. GSA, 671 F.2d 663, 665-66 (1st Cir. 1982), the First Circuit Court of Appeals held that this privilege properly protects appraisal reports prepared in anticipation of the sale of government land, because otherwise the FOIA would "allow the Government's customers to pick the taxpayers' pockets." See also Hack v. DOE, 538 F. Supp. 1098, 1100 (D.D.C. 1982) (protecting reports used in contracting for architectural and engineering services); cf. Hoover v. Department of the Interior, 611 F.2d 1132, 1141 (5th Cir. 1980) (protecting realty appraisal report based upon similar privilege). On the other hand, such protection has been held not to extend to legal memoranda prepared in aid of government contract negotiations. See Shermco Industries, Inc. v. Secretary of the Air Force, 613 F.2d 1314, 1319-20 n.11 (5th Cir. 1980); see also American Society of Pension Actuaries v. Pension Benefit Guaranty Corp., Civil No. 82-2086, slip op. at 3-4 (D.D.C. July 22, 1983) (documents containing mere advice on investment of monies not protected). It remains to be seen to what extent this privilege will be interpreted to extend Exemption 5 protection to other types of government-generated information having commercial implications. See, e.g., Belazis, The Government Commercial Information Privilege. Technical Information and the FOIA's Exemption 5, 33 Ad.L.Rev. 415 (1981) (advocating extension to technological data).

Apart from the two "National Parks tests" commonly applied in determining confidentiality under Exemption 4, is there any other standard by which a document may qualify for such protection?

Yes. In National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), the D.C. Circuit expressly left open the possibility of a third test: whether disclosure would impair "other governmental interests" such as "compliance and program effectiveness." Id. at 770 n.17. While the courts have occasionally alluded to such a "third test," see, e.g., Washington Post Co. v. HHS, 690 F.2d 252, 268 n.51 (D.C. Cir. 1982), its only significant application is found in Comstock International, Inc. v. Export-Import Bank of the United States, 464 F. Supp. 804, 808 (D.D.C. 1979), in which the terms of a loan agreement between a corporation and the Export-Import Bank were found properly withheld under Exemption 4, on the grounds that disclosure would impair the effectiveness of the bank and that promoting exports is a protectible government interest within the logical contemplation of this third National Parks test. Cf. Orion Research, Inc. v. EPA, 615 F.2d 551, 554 (1st Cir.) (technical proposals in bids for government contracts properly withheld where disclosure might impair agency's capacity to make informed choices in future awards), cert. denied, 449 U.S. 833 (1980). It remains to be seen how this relatively little-known aspect of National Parks can be applied further.

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