Your SlideShare is downloading. ×
Thomas M. Susman,Ppt
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Thomas M. Susman,Ppt

573

Published on

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
573
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
7
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide
  • Transcript

    • 1. Freedom of Information And Open Government Thomas M. Susman Santiago, Chile – November 6, 2007 1 Tokyo, Japan
    • 2. Freedom of Information Affects Public, Government, and Businesses
      • Benefits of open government
        • To the public, including businesses
        • To the government
      • Impact on business—
        • Public disclosure of information submitted to government by businesses
        • Disclosure of agency information to businesses
    • 3. Benefits to Public, Including Businesses
      • More effective participation in policy formulation by government
      • Improved ability to comply with laws
      • Commercial, scientific, and environmental benefits
      • More competitive procurement and contracting
      • More efficient resource allocation
    • 4. Benefits to Government
      • Higher quality of decision-making
      • Improved compliance with laws and regulations
      • Greater public confidence in government
      • Greater accountability of officials and thus less potential for corruption
    • 5. History of U.S. FOIA
      • Before the Freedom of Information Act (“FOIA”): principles of transparency respected, but no rights
        • Constitutional history; democratic ideals
        • Information disclosed that government wanted to release
        • Requester must show particular interest
      • Brief history in U.S.
        • FOIA enacted in 1966, 5 U.S.C. § 552
        • Subsequent amendments
    • 6. Government Disclosure of Business Information Under FOIA
      • FOIA legislative history reflects little consideration given by Congress to disclosure of business information
      • Text of statute: FOIA disclosure mandate does not apply to—
      • trade secrets and commercial or financial information obtained from a person and privileged or confidential
    • 7. Meaning of FOIA Exemption for Confidential Business Information
      • Scope and meaning of exemption unclear on its face
      • Courts have interpreted and given substance through many litigated cases
    • 8. Meaning of FOIA Exemption for Confidential Business Information
      • Commercial information is protected from disclosure if it is either —
        • Submitted to the government under compulsion, when release would cause substantial competitive harm or impair the government’s ability to obtain information; or
        • Submitted to the government voluntarily when the information would not customarily be released by the submitter to the public.
    • 9. Comparison to Proposed Legislation in Chile and Elsewhere
      • Every access-to-information law or regulation respects need for confidentiality of some business information
      • Most often identifies “trade secrets” (although the term may have multiple meanings)
    • 10. Comparison to Proposed Legislation in Chile and Elsewhere
      • Chile’s draft access to government-held information bill would not apply where—
      • (b) [disclosure] may harm commercial or other economic rights, whether public or private . . . .
      • (d) [the information] has been obtained from a third party as confidential information . . . .
    • 11. Submitter Must be Given Notice Before Disclosure
      • Executive Order 12600, issued in 1987, requires notice to submitter and opportunity to comment to agency when request made for information designated by submitter as “confidential”
      • Agency has ultimate authority over decision to disclose
    • 12. No Balancing or Public Interest Override for Business Information
      • If information qualifies as trade secret or confidential commercial information, it must be withheld (through interaction of Trade Secret Act’s confidentiality requirement)
      • FOIA has no balancing of benefits to public from disclosure; no matter how great, benefits do not override nondisclosure requirement
      • Chile’s proposed law allows withholding only if the “risk of danger outweighs the public interest promoting…disclosure”
    • 13. “ Reverse-FOIA” Action
      • Suit may be brought by submitter against agency to prevent disclosure under FOIA
      • Suit under Administrative Procedure Act, not FOIA (therefore burden of proof is on the submitter to justify nondisclosure)
      • Court may enjoin agency from disclosing trade secret or confidential commercial information
    • 14. When Is FOIA Used by Businesses?
      • Public policy advocacy or oversight
      • Firms under investigation
      • In litigation with an agency (or private litigation)
      • For commercial (competitive) advantage
      • Contracting with the government
      • Rulemakings affecting business
      • Government benefits, plans, activities
    • 15. Business-Use Examples: Discovery of Agency “Secret Law”
      • Internal Revenue Service memoranda reflecting agency’s positions to guide personnel
      • National Labor Relations Board general counsel memoranda reflecting decisions not to file complaints
      • Monetary policy directives by Federal Reserve Board
      • Antitrust Division and other government guidance manuals for staff
    • 16. Business-Use Examples: Responding to Regulation or Enforcement Activities
      • Medical and pharmacological reviews prepared in the course of agency review of new drug applications
      • Scientific studies on potential dangers of gasoline additive
      • Memoranda reflecting reasons why Federal Trade Commission (FTC) supported staff request for subpoena
      • Files of closed customs and antitrust investigations
    • 17. Business-Use Examples: Litigation with Agency or with Third-Party
      • Use in whistleblower case to obtain company Food & Drug Administration (FDA) filings
      • Use in case by Indian tribes against energy companies alleging fraud
      • Use by government contractor to obtain investigative report of accident
    • 18. Business-Use Examples: Obtaining Information about Competitors
      • Reports filed by competing contractors disclosing numbers of employees and types of positions
      • Prices and terms contained in government contracts
      • Internal efficiency studies
      • Securities & Exchange Commission (SEC) and FTC investigative files
      • FDA, Agriculture Department, and Product Safety Commission records on products
    • 19. Attitude of Businesses Has Changed
      • For much of first two decades under FOIA, businesses were hostile toward the law
        • No required notice or consultation (until 1987)
        • Example of mistaken release by Environmental Protection Agency (EPA) of Monsanto’s valuable pesticide formula (1982)
        • No distinction between information voluntarily submitted and required to be submitted (until 1992)
        • Right to challenge disclosure in court not recognized (until 1979)
    • 20. Businesses Now See Value in FOIA
      • Businesses and their representatives are now the # 1 users of FOIA
      • Agencies afford reasonably predictable protection for trade secrets and confidential information
      • Agencies listen to business arguments for nondisclosure
      • Businesses in 2007 supported congressional amendments to strengthen disclosure under FOIA
    • 21. Also: Government-Required Disclosure by Companies and Individuals
      • Many U.S. laws require persons and companies to disclose information to the public
      • Information disclosure used to combat business corruption or as regulatory tool; examples include—
        • SEC (corporate information), FDA (food and drug research), EPA (pollutants)
        • Ethics in Government Act (financial disclosure)
    • 22.
      • QUESTIONS?
      • Thomas M. Susman
      • Ropes & Gray LLP
      • 700 Twelfth Street, NW
      • Suite 900
      • Washington, DC 20005
      • 011-202-508-4620
      • [email_address]
      • 7275355_3

    ×