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Thomas M. Susman,Ppt Thomas M. Susman,Ppt Presentation Transcript

  • Freedom of Information And Open Government Thomas M. Susman Santiago, Chile – November 6, 2007 1 Tokyo, Japan
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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.
  • 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)
  • 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 . . . .
  • 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
  • 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”
  • “ 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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)
  • 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
  • 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)
    • QUESTIONS?
    • Thomas M. Susman
    • Ropes & Gray LLP
    • 700 Twelfth Street, NW
    • Suite 900
    • Washington, DC 20005
    • 011-202-508-4620
    • [email_address]
    • 7275355_3