FOIA Update: FOIA Counselor: Questions & Answers

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

FOIA Counselor:  Questions & Answers

Should a first-party access request which cites only the Privacy Act be processed under the Freedom of Information Act as well?

Yes. Not all federal record requesters are knowledgeable enough to cite the statutory authority applicable to their access requests. Particularly in the case of first-person requests, in which possibly unsophisticated persons seek access to records on themselves, agencies are expected to honor a requester's obvious intent. Cf Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985); accord Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (requiring federal courts to construe pro se submissions under "less stringent standards"). Moreover, were an agency to process an access request which cites only the Privacy Act (or, for that matter, no statute at all) under the Privacy Act alone, it would likely have to reprocess that request under the FOIA once the requester (or, ultimately, a court) realized the narrowness of the agency's action.

It is therefore good policy for agencies to treat all first-party access requests as FOIA requests (as well as possibly Privacy Act requests), regardless of whether the FOIA is cited in a requester's letter. Indeed, Congress specifically urged this policy when it clarified the substantive relationship of the FOIA and Privacy Act in the Central Intelligence Agency Information Act, Pub. L. 98-477 (Oct. 15, 1984). See H.R. Rep. 98-726 Pt. 2, 98th Cong., 2d Sess. 16-17, reprinted in 1984 U.S. Code Cong. & Ad. News at 3790-91. To the extent that the recent Privacy Act guidance issued by the Office of Management and Budget suggests otherwise -- see OMB Memorandum For The Senior Agency Officials For Information Resources Management (May 25, 1985) at 8-9 -- it should be disregarded on this matter of FOIA policy. See 5 U.S.C. § 552(d) (establishing Justice Department FOIA policy responsibility).

Is an agency compelled to release all portions of an awarded government contract under the FOIA?

No, not necessarily. Although general policy considerations strongly favor the disclosure of awarded contracts to permit the public "to evaluate the wisdom and efficiency of federal programs and expenditures," Racal-Milgo Government Systems, Inc. v. SBA, 559 F. Supp. 4, 6 (D.D.C. 1981), an agency is certainly not precluded from withholding portions of an awarded contract where warranted under Exemption 4. The few courts that have been confronted with FOIA requests for data contained in awarded contracts have evaluated those documents just as they would any document containing business information -- by determining if disclosure would cause one of the harms cognizable under Exemption 4. See Racal-Milgo Government Systems, Inc. v. SBA, supra (disclosure of unit prices contained in contract for computer equipment would not cause submitter substantial competitive harm or impair agency's ability to obtain similar data in the future); J. H. Lawrence Co. v. Smith, Civil Nos. 81-2993, 82-0361, slip op. at 8-9 (D. Md. Nov. 10, 1982); Sperry Univac Division v. Baldrige, 3 GDS ¶ 83,265, at 84,052 (E.D. Va. 1982), appeal dismissed, No. 82-1723 (4th Cir. Nov. 22, 1982). Cf. Goldstein v. ICC, Civil No. 82-1511, slip op. at 6 (D.D.C. July 31, 1985) (disclosure of names of shippers in rail carrier contracts required to be filed with agency would cause submitter substantial competitive harm). Thus, a standard Exemption 4 analysis should be employed in making FOIA disclosures of information contained in awarded government contracts, with particular attention paid to whether the data requested relates to the contract price, see, e.g., AT&T Information Svstems, Inc. v. GSA, Civil No. 85-1197, slip op. at 16 (D.D.C. Feb. 6, 1986) ("strong public interest in release of component and aggregate prices in Government contract awards"), and also to whether disclosure is required by some other statute or regulation, see, e.g., FOIA Update, Fall 1984, at 4 (data disclosable under the Federal Acquisition Regulation cannot be withheld under the FOIA). On the other hand, the existence of an unresolved bid protest could warrant a delay in agency disclosure. See, e.g., Racal-Milgo Government Systems, Inc. v. SBA, 559 F. Supp. at 7 (disclosure of unit prices stayed pending outcome of bid protest).

Are the names of individuals who write letters to government officials protectible under Exemptions 6 and/or 7(C) of the FOIA?

Yes, in most instances. In general, the identity of one who writes to a government official expressing a personal opinion may be withheld under one of the FOIA's personal privacy exemptions. Letter writers usually have some expectation of privacy when expressing their personal opinions, see Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (MacKinnon, J., concurring) (private citizen has "expectation that when he provides (usually voluntarily) information to the government he will not be damaged in his person or reputation by disclosure of the source"), and there is "a strong public interest in encouraging citizens to communicate their concerns . . . to their elected representatives." Holy Spirit Ass'n v. Department of State, 526 F. Supp. 1022, 1034 (S.D.N.Y. 1981). Cf. Brant Construction Co., Inc. v. EPA, 778 F.2d 1258, 1264 (7th Cir. 1985) (writer of unsolicited letter can be confidential source under Exemption 7(D)). But see Powell v. Department of Justice, Civil No. C82-0326-MHP, slip op. at 5 (N.D. Cal. Mar. 27, 1985) (individuals do not retain a privacy interest when writing to public officials) (appeal pending).

Indeed, providing protection to one who volunteers information to the government by letter is entirely consonant with the well-established principle that the identities of persons cooperating in government investigations are protectible under Exemption 7(C). See, e.g., New England Apple Council v. Donovan, 725 F. 2d 139, 144-45 (1st Cir. 1984); Iglesias v. CIA, 525 F. Supp. 547, 563 (D.D.C. 1981); Church of Scientology v. Department of State, 493 F. Supp. 418, 421 (D.D.C. 1980). On the other hand, the identity of a letter writer should be released where there is an indication that there is no expectation of privacy (e.g., where the letter has been distributed widely), cf. Brant Construction Co., 778 F. 2d at 1264, that the individual is writing on behalf of an organization and thus is not expressing personal views, or that the letter is itself a request for information under the FOIA, see FOIA Update, Winter 1985, at 6. Of course, even where the identity of the writer is protected, the substance of the correspondence should be released insofar as the substance itself is not identifying or otherwise exempt.

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