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Freedom of Information Act Guide, May 2004

Exemption 9

Exemption 9 of the FOIA covers "geological and geophysical information and data, including maps, concerning wells." (1) This exemption has very rarely been invoked or interpreted, (2) and its boundaries remain substantially undefined to this day. As no court has examined Exemption 9 in any depth, it is still not clear exactly what types of geological or geophysical information are protected from disclosure under the exemption, or whether it was intended to apply to all types of "wells."

One court held twenty years ago that Exemption 9 applies only to "well information of a technical or scientific nature," and not to general mineral exploration data -- such as the location, depth, or number of exploration drill holes. (3) It is significant that this court pointed to the legislative history of the FOIA -- specifically, to evidence that Congress intended through Exemption 9 to protect the oil and gas exploration and extraction industry from unfair competitive harm by "speculators" -- in support of its decision to order the release of generalized well data where a competitive harm argument could not readily be supported. (4)

A recent decision, however, might give greater depth to Exemption 9. (5) In that case, the court held that information related to the presence of groundwater -- including "ground water inventories, [water] well yield in gallons per minute, and the thickness of the decomposed granite aquifer" -- was exempt from disclosure under both Exemption 4 (6) and Exemption 9. (7) Though the court discussed the two exemptions separately, with Exemption 9 receiving very little analysis, it emphasized that "water is a precious, limited resource" and that release of well data would place one party at a disadvantage in negotiations over its use. (8) Only two other decisions have mentioned Exemption 9 with respect to the regulation of natural gas producers; however, neither case discussed its scope or application in significant detail. (9)

A survey of all of the Exemption 9 cases decided to date suggests that its present boundaries are defined neither by the type of well nor the type of information. (10) In fact, what is clear from the Exemption 9 decisions thus far is that courts have applied it to all types of wells and to various information about these wells. (11) It also is reasonable to assume that both agencies and courts may apply Exemption 9 to protect well data in other compelling circumstances, such as when Exemption 9 protection is necessary to guard against an attack upon pooled natural resources intended to cause harm to the public. (12)

    1. 5 U.S.C.  552(b)(9) (2000).

    2. See, e.g., Nat'l Broad. Co. v. SBA, 836 F. Supp. 121, 124 n.2 (S.D.N.Y. 1993) (noting merely that document withheld under Exemption 4 "also contains geographic or geological information which is exempted from disclosure pursuant to FOIA Exemption 9").

    3. Black Hills Alliance v. United States Forest Serv., 603 F. Supp. 117, 122 (D.S.D. 1984) (requiring government to disclose number, locations, and depths of proposed uranium exploration drill holes in national forest under federally approved program, and noting that this geological exploration information "falls short of the technical and scientific information envisioned by Congress").

    4. Id. (stating that disclosure of "exploratory findings of oil companies would give speculators an unfair advantage over the companies which spent millions of dollars in exploration" (citing H.R. Rep. No. 89-1497, at 9 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2428)); cf. Petroleum Exploration v. Comm'r, 193 F.2d 59, 62 (4th Cir. 1951) (recognizing commercial value of information related to mineral exploration and extraction) (non-FOIA case); Prohosky v. Prudential Ins. Co. of Am., 584 F. Supp. 1337, 1340 (N.D. Ind. 1984) (acknowledging longstanding legal doctrine that subterranean water, oil, and natural gas are considered to be "ferae naturae" until actually pierced with well) (non-FOIA case).

    5. Starkey v. United States Dep't of the Interior, 238 F. Supp. 2d 1188, 1196 (S.D. Cal. 2002) (affirming action of agency in withholding commercially sensitive portions of "preliminary draft supplemental environmental assessment" related to groundwater tables and wells).

    6. 5 U.S.C. 552(b)(4) (2000) (protecting "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential").

    7. Starkey, 238 F. Supp. 2d at 1196.

    8. Id. at 1195.

    9. See Superior Oil Co. v. FERC, 563 F.2d 191, 203-04 & n.20 (5th Cir. 1977) (accepting without discussion that agency may choose to withhold information concerning regulated natural gas exploration and production by private companies under Exemption 9, but ruling that agency also may make discretionary disclosure of certain information despite risk of competitive harm) (non-FOIA case); Pennzoil Co. v. Federal Power Comm'n, 534 F.2d 627, 629-30 & n.2 (5th Cir. 1976) (ruling without significant discussion that Exemption 9 may allow, but does not require, agency to withhold information concerning natural gas "reserve data" reported by regulated private companies) (non-FOIA case); see also Ecee, Inc. v. FERC, 645 F.2d 339, 348-49 (5th Cir. 1981) (holding that requirement that producers of natural gas submit confidential geological information was valid) (non-FOIA case).

    10. See Superior Oil Co., 563 F.2d at 197 (natural gas exploration expenditure data); Pennzoil Co., 534 F.2d at 629 (natural gas reserve estimate data); Starkey, 238 F. Supp. 2d at 1195 (water table levels and well-yield data); Black Hills Alliance, 603 F. Supp. at 122 (uranium exploration test drilling data).

    11. Id.

    12. See Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321-22 (D. Utah 2003) (finding that disclosure of "inundation maps" could reasonably be expected to place at risk lives of individuals in downstream areas that would be flooded by breach of dams through increasing risk of terrorist attack on dams) (Exemption 7(F)); see also White House Memorandum for Heads of Executive Departments and Agencies Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002), reprinted in FOIA Post (posted 3/21/02) (emphasizing "obligation to safeguard" homeland security-related records).

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