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FOIA Update: OIP Survey: Submitter Notice Practices

FOIA Update
Vol. III, No. 3

OIP Survey: Submitter Notice Practices

A survey of 50 major Federal Government agencies recently undertaken by the Office of Information and Privacy revealed that while it is the prevailing practice across the Government to notify and consult with the submitters of business information before deciding whether to release documents requested under the Freedom of Information Act, most agencies do not routinely notify submitters if they do not contemplate release as a possibility. Additionally, not all agencies have regulations or even formal guidelines governing such notice and consultation procedures. (See page 3 of this issue of FOIA Update for official policy guidance.)

Among agencies which do notify subrnitters of all FOIA requests -- whether or not release is contemplated -- are the Department of Defense, the General Services Administration, the Department of Transportation, and the Federal Emergency Management Agency.

The OIP survey found that 12 agencies have regulations which require them to notify/consult with submitters before releasing information, that two agencies follow a procedure spelled out by the Department of Justice in 1979 guidance memoranda, and that others have less formal procedures or long-standing practices which aim at consultation with the submitter before release. Several agencies do not necessarily notify and consult with submitters, at least not for all agency components or in all cases.

Agencies which do not have regulations in force follow a variety of approaches, although the result is usually the same: agency personnel give the submitter the opportunity to substantiate its position that material should be withheld or to agree that documents are not confidential before moving forward with release.

As a general matter, agency personnel readily agree that it is only sensible and fair to consult the submitter before making a release. For agencies possessing quantities of Exemption 4 material the consultation process undeniably adds days to the FOIA processing period, may involve extensive photocopying and even multiple copying of documents, and can end up pitting the submitter against the requester with the agency in the middle.

The OIP study revealed that one agency, the Food and Drug Administration, takes the position, by regulation, that it possesses the expertise to determine whether information is properly withholdable as confidential commercial information or a trade secret--without the necessity of any notice to, or consultation with, the submitter. The FDA publishes a daily log of FOIA requests which is available to submitters and, not surprisingly, the log is closely monitored. FDA regulations do provide for consultation when the agency determines that the issue of confidentiality is in doubt.

Agencies most heavily involved with business information include the Department of Labor and its components which monitor contracts, inspect businesses and industries, and compile labor statistics.

Department of Labor

Sofia Petters, counsel for administrative legal services in the Department of Labor's Office of the Solicitor, says that the department and its many offices and bureaus "early on got into a system of checking with the submitter. . . . We take the position that we might not be able to tell if competitive harm is involved, so we check . . . ."

Of the three Labor components most heavily involved with business information, only the Office of Federal Contract Compliance Programs has formal regulations setting forth a procedure for consulting with the submitter. Similar but less formal procedures are followed throughout the department.

The standard practice at Labor is to notify a submitter only when it is not clear that the submitter's request for confidential treatment can be honored. DOL personnel write the submitter informing it that there has been a FOIA request and asking for comments either supporting withholding or agreeing to disclosure. The submitter then has 5 to 10 days to respond. Under Labor's practices, the submitter also has a 10-day time period in which to seek judicial intervention if the department decides that it cannot withhold the material.

Ms. Petters says that this area can present tremendous problems for her department because there are often strong arguments both for and against release and DOL personnel often find themselves in the middle. Another difficulty is the massive quantity of records which must be handled and reviewed before release can be made. Ms. Petters says she also finds the entire area of legitimate concern to the business community. "There are pockets of problems here," she acknowledges.

Department of Health and Human Services

At the Department of Health and Human Services, regulations establishing a "notice-to-submitters" procedure were adopted in early 1982, thus converting to formal procedure what had been only an informal practice for many years.

According to the regulations, whenever there is a FOIA request for contract or procurement information, HHS officials are required to consult with the submitter of the material "if there is reason to believe the source may object to release of the record or part of the record." The submitter must provide its justification for withholding material within five working days. Once the decision is made to release, the submitter will receive a copy of the material as proposed for release. The submitter then has five working days to take further action.

Russell M. Roberts, FOIA officer at HHS, says that this procedure appears to work well, but notes that notification and review is a long and costly process for submitters. He has been told that some business submitters are considering adding the cost of the process to their bids on Government contracts.

From the agency point of view, Roberts says it is likewise burdensome for an agency to be caught between two opposing businesses. He suggests that there be some sort of corrective legislation in this area to allow agencies to process these requests in a fairly mechanical way. Should the requester then bring suit, the submitter should be joined with the agency in the suit, he says.

Agencies with Regulations

Of the agencies with regulations governing notice and consultation procedures, most -- like the Consumer Product Safety Commission, the Securities and Exchange Commission, and the U.S. Synthetic Fuels Corp. -- provide for records to be designated as confidential at the time of submission. Some agencies, such as the Commodity Futures Trading Commission, provide for submitters to file a formal petition for confidential treatment at the time of submission.

Most agencies do not make determinations of confidentiality until a FOIA request is received. Then, if the staff personnel do not agree with the submitter's confidentiality claim, the submitter is consulted and has an opportunity in which to provide further evidence of confidentiality.

The Environmental Protection Agency does some initial evaluation of requests for confidential treatment. Regulations of the Office of the Federal Inspector for the Alaskan Natural Gas Pipeline (OFI) provide for designation of material as either "business" or "sensitive." The OFI, describing "sensitive" as a narrow category agrees in advance to "resist disclosure of sensitive records. Submitters of "business" information are notified before a release is made and would have the opportunity to object.

General Practice Elsewhere

The OIP survey found that approximately 20 agencies have only informal notification procedures ranging from the precise to the casual. Included in the group are a number of Cabinet-level departments.

At one agency, there exists no formal practice whatsoever as to how to handle business material. Personnel at the agency's headquarters admit that they are uncertain as to how field and regional offices approach the problem. It was found that personnel at many agencies believe that practices in the field and at regional offices may vary from the Washington norm simply due to the numbers of offices and because, as a rule, practices tend to be "just a little more informal" away from headquarters whenever they are not governed by formal written guidelines.

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Updated August 13, 2014