Vol. V, No. 4
FOIA Counselor: Questions & Answers
What is the status of the legal position that the Privacy Act can serve as an Exemption 3 statute under the FOIA?
This position is now expressly precluded by statute. More than two years ago, the Department of Justice determined to advance in the courts the argument that information exempt from a first-party requester under the Privacy Act was also therefore withholdable under the FOIA's Exemption 3; this position, though, was never applied at the administrative level. See FOIA Update, Spring 1983, at 3. Eventually, there arose a conflict among the circuit courts of appeals on this issue and the Supreme Court agreed to decide it in the consolidated Provenzano and Shapiro cases. See FOIA Update, Spring 1984, at 13. However, as part of the recently enacted Central Intelligence Agency Information Act, Congress unequivocally specified that the Privacy Act may not serve as an Exemption 3 statute under the FOIA. See Pub. L. 98-477, 98 Stat. 2209, Sec. 2(c) (effective Oct. 15, 1984) (amending subsection (q) of the Privacy Act of 1974, 5 U.S.C. § 552a(q)). Consequently, the Supreme Court has dismissed the issue as moot, see 53 U.S.L.W. 3396 (U.S. Nov. 26, 1984), and the position is no longer viable.
Does the new Federal Acquisition Regulation affect the possible applicability of Exemption 4 to unit prices contained in government contracts?
Yes. In 1983, the Office of Information and Privacy formally advised federal agencies to be cautious in considering Exemption 4 protection for unit prices contained in awarded government contracts; at the same time, it was recognized that in exceptional situations a submitter might be able to demonstrate that disclosure of its unit prices would cause substantial competitive harm cognizable under Exemption 4. See FOIA Update, Fall 1983, at 10-11. However, the new Federal Acquisition Regulation -- which was promulgated jointly by the Department of Defense, the General Services Administration and the National Aeronautics and Space Administration to govern the federal procurement process governmentwide -- has virtually eliminated that possibility. This new regulation mandates, for all contracts awarded in excess of $10,000, the automatic disclosure of unit prices to all unsuccessful bidders (with very limited exceptions) through an extensive post-award notice process. See 48 Fed. Reg. 42102, 42218 (1983) (to be codified at 48 C.F.R. § 15.1001(c)(1)(iv)). (Even for contracts awarded in amounts less than $10,000, the unit prices can be made available to unsuccessful bidders upon request. See id. at § 15.1001(c)(3).) Exemption 4 protection is, of course, vitiated if the information is publicly available. See, e.g., Continental Stock Transfer & Trust Co. v. SEC, 566 F.2d 373, 375 (2d Cir. 1977); Trend Imports Sales, Inc. v. EPA, 3 GDS ¶ 83,115 at 83,707 (D.D.C. 1983). Thus, for contract bids made subsequent to the effective date of this new regulation (April 1, 1984), the unit prices required to be released pursuant to it may not be considered for protection under Exemption 4.
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