FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1986
FOIA Update
Vol. VII, No. 3

FOIA Counselor:  Questions & Answers

Does the Trade Secrets Act, 18 U.S.C. § 1905, qualify as a nondisclosure statute under Exemption 3 of the FOIA?

No. Although at first glance the Trade Secrets Act -- which prohibits government employees from disclosing business-related information "to any extent not authorized by law" -- might appear to qualify as an Exemption 3 statute under the FOIA, there are compelling reasons why it does not. First and foremost, the Trade Secrets Act's broad and ill-defined wording fails to meet the standards of either subpart of Exemption 3. Its prohibition against disclosure is not absolute, thereby failing to satisfy the requirement of subpart (A). And because its general prohibition against disclosure -- which by its broad terms could reach virtually all agency-held business information -- does not with any meaningful specificity define or categorize the information to be withheld, nor does it include any criteria for withholding, § 1905 likewise fails to meet either requirement of Exemption 3's subpart (B). See, e.g., National Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 686-87 (D.C. Cir. 1976) (dictum); F1orida Medical Ass'n v. HEW, 479 F. Supp. 1291, 1302 (M.D. Fla. 1979); United Technologies Corp. v. Marshall, 464 F. Supp. 845, 851 (D. Conn. 1979); Westchester General Hospital v. HEW, 464 F. Supp. 236, 243 (M.D. Fla. 1979); see also AT&T Information Systems, Inc. v. GSA, 627 F. Supp. 1396, 1404-05 (D.D.C. 1986) (appeal pending); cf. Burnside-Ott Aviation Training Center, Inc. v. United States, 617 F. Supp. 279, 28S (S.D. Fla. 1985) (regarding § 1905 as impractically broad and ill-defined). But see, e.g., Burroughs Corp. v. Brown, 501 F. Supp. 375, 382-83 (E.D. Va. 1980), rev'd on other grounds sub nom. General Motors Corp. v. Marshall, 654 F.2d 294 (4th Cir. 1981).

Second, the legislative history of the 1976 amendment to Exemption 3 expressly states that §1905 was not intended to qualify as a nondisclosure statute under Exemption 3 as amended and that any FOIA analysis of trade secrets and commercial or financial information should focus instead on the applicability of Exemption 4. See H.R. Rep. No. 880, 94th Cong., 2d Sess. 23, reprinted in 1976 U.S. Code Cong. & Ad. News 2183, 2205. See, e.g., General Electric Co. v. NRC, 750 F.2d 1394, 1401-02 (7th Cir. 1984) ("If a supposed trade secret is not protected by [Exemption 4], the FOIA requires disclosure. and then the Trade Secrets Act by its own terms does not forbid it [as the disclosure would thus be 'authorized by law'] and exemption 3 does not come into play."); General Dynamics Corp. v. Marshall, 607 F.2d 234, 236-37 (8th Cir. 1979). See also FOIA Update, Summer 1985, at 3 (scope of § 1905 logically is no broader than that of Exemption 4).

Is an agency required to provide a Vaughn index at the administrative level?

No. The requirement of Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), that an agency should ordinarily provide an itemized index correlating each withheld document (or portion) with a specific exemption justification was fashioned only in connection with the adjudication of a defendant agency's motion for summary judgment in litigation. In fact, it has been specifically held that "[t]here is no requirement that administrative responses to FOIA requests contain the same documentation necessary in litigation." Crooker v. Central Intelligence Agency, Civil No. 83-1426, slip op. at 3 (D.D.C. Sept. 28, 1984). See also Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (encouraging agencies to provide requesters "with sufficient detail about the nature of the withheld documents and its exemption claims at the administrative level," but holding that where Vaughn requirements had been satisfied in district court proceedings, failure to provide a Vaughn index at the administrative level was not error); cf. Safecard Services, Inc. v. Securities & Exchange Comm'n, Civil No. 84-3073, slip op. at 1 (D.D.C. Apr. 21, 1986) ("No court has held that a requesting party may compel production of a Vaughn index before completing its administrative appeal."). Indeed, the statutory language of the FOIA requires only that an agency inform the requester of the reasons for the denial of an initial request, of the name and title of each person responsible for the denial, and of the right to an administrative appeal. See 5 U.S.C. § 552(a)(6)(A)(i), (6)(C).

Can factual information be protected under the deliberative process privilege of Exemption 5?

Yes. Although as a general rule factual portions of documents ordinarily are not covered by the deliberative process privilege, because their disclosure is viewed by the courts as generally not harmful to government decisionmaking, see EPA v. Mink, 410 U.S. 73, 87-88 (1973), it must be remembered that there exist two separate and distinct circumstances under which such material has been held to be privileged and thus protectible under Exemption 5. Facts can be protected either "if the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are 'inextricably intertwined' with the policy-making process." Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (footnotes omitted) (emphasis added). The Supreme Court recognized the "inextricably intertwined" rationale in the case that first delineated the fact/opinion dichotomy under Exemption 5, EPA v. Mink, 410 U.S. at 91, where it specifically held that facts need be disclosed only where "severable without compromising the private remainder of the documents." See, e.g.. Lead Industries Ass'n v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979); Soucie v. David, 448 F.2d 1067, 1078 (D.C. Cir. 1971); Cities Service Co. v. FTC, 627 F. Supp. 827, 836 (D.D.C. 1984), aff'd mem., 778 F.2d 889 (D.C. Cir. 1985).

The second circumstance warranting the protection of factual material under Exemption 5 is where its disclosure would "expose" the agency's deliberative process, which is based upon the premise that Exemption 5 is designed "to protect the deliberative process of government and not just deliberative material." Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). Thus, where disclosure of factual material would itself reveal an agency's deliberative process -- for example, by revealing which facts were selected by a decisionmaker's aides to assist that person in deciding an issue, as in the leading case of Montrose Chemical Corp. v. Train, 491 F.2d 63, 68, 71 (D.C. Cir. 1974) -- Exemption 5 protection is fully warranted. See, e.g., Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Williams v. Department of Justice, 556 F. Supp. 63, 65 (D.D.C. 1982).

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