FOIA Update: FOIA Focus: Linda L. Robinson

In the course of collecting information, regulating industries, procuring goods and contracting for services, the government acquires a great deal of material that falls within the ambit of Exemption 4, the business information exemption to the Freedom of Information Act. From the beginning, Exemption 4 has been a troublesome, complicated area. Over the years, court cases have established general standards governing the application of this exemption and the Justice Department has issued guidance encouraging adoption by all agencies of specific procedures to promote a balance among the various interests coming into play in Exemption 4 cases.

Agencies such as the Nuclear Regulatory Commission have long functioned with business data procedures which, in the language of the NRC regulations, are aimed at carrying out the commission's policy of achieving an "effective balance between legitimate concerns for protection of competitive positions and the right of the public to be fully apprised as to the basis for and effects of licensing or rule making actions . . . . "

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As at other agencies, the NRC's standardized Exemption 4 procedures -- whether spelled out in regulations or in its employee manual -- are put into effect at the desks of the FOIA analysts and attorneys, like Linda L. Robinson, who on a daily basis must carefully analyze the position of the data submitter as well as the rights of the FOIA requester, without losing sight of the spirit of the disclosure law.

Under the NRC's centralized approach, all FOIA requests come to the FOIA/PA branch of the Division of Rules and Records within its Office of Administration. There, seven professionals, including Ms. Robinson, work under the direction of a branch chief and a division director to handle between 600 and 700 FOIA requests yearly. Ms. Robinson, an attorney, specializes in contract management but also works in other FOIA/PA areas.

Ms. Robinson points out that the NRC probably has fewer FOIA requests than might be anticipated because the agency traditionally makes so much of its material public. The NRC Public Document Room (PDR), in Washington, D.C., contains more than two million documents, adds more than 300 documents each day, and is used by approximately 1,000 members of the public monthly. There are also PDRs near each of the nation's 79 nuclear reactor sites.

A great many of the NRC's documents reflect the technical, financial, and security aspects of building and operating the sources of the nation's domestic nuclear power. The NRC regulations (10 C.F.R. § 2.790(b)) call for submitters of this type of information to substantiate by detailed affidavit at the time of submission that material is indeed proprietary.

Besides this major Exemption 4 area, the NRC also maintains other commercial and financial data contained in contracts and proposals.

In processing FOIA requests in this area, her specialty, Ms. Robinson prefers the personal contact that comes through telephoning each requester and each submitter in an effort to negotiate a release satisfactory to both. (Written memoranda are maintained of these conversations to serve as an administrative record.)

She talks first to the requester, asking the requester to accept a redacted, "nonproprietary" version of the material. She explains that cost proposals and resumes are almost always deleted in making such releases and that additional proprietary information may be deleted upon review by the submitter and herself.

"I also tell the requester that I am contacting the submitter for review of the proposal and at that point I ask for an extension of the 10-day deadline in the event it may be necessary." In the three years during which Ms. Robinson has used this procedure, most requesters have agreed to accept "nonproprietary" versions. "Our typical FOIA requester is an unsuccessful bidder who wants to learn why the requested proposal was successful and usually doesn't seek proprietary information," she says. Interested parties also can see basic contracts, which contain prices, terms and conditions, at the PDR.

Ms. Robinson then turns her attention to the submitter who, if it followed the instruction of the NRC proposal request, has marked material as proprietary. With the submitter, Ms. Robinson reviews Exemption 4 and also stresses the FOIA's segregability requirement. Submitters are afforded a full week to review their material.

Ms. Robinson has found that agreement on a releasable version can usually be reached during such preliminary conversations. In those few cases where this does not occur, submitters then receive formal letters providing them with nonproprietary versions of proposals as prepared by the NRC and seeking the factual basis, in accordance with NRC regulations, which would support a finding of confidentiality for withholding any additional information.

These letters also express the NRC's willingness to meet with submitters. When such meetings occur, the NRC administrative and legal staff reviews proposals line-by-line, evaluates a submitter's objections to release and carefully documents all findings of the meeting as part of the administrative record.

In Ms. Robinson's only case in which agreement was not ultimately reached, the NRC provided a detailed written statement to the submitter of the agency's analysis of the submitter's disclosure objections, explaining their inapplicability. The letter also included notice that the document would be disclosed unless the submitter obtained a court order within 10 days. The document was promptly disclosed and placed in the PDR upon expiration of that deadline.

"We're taking the notice procedure very seriously and while personal contact has been very successful we are careful about building an adequate administrative record by documenting our activities," Ms. Robinson says.

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