Page images
PDF
EPUB

$ 1504.107 Formal OFI proceedings issued the subpoena (and where approdiscovery.

priate served on the party applying for (a) To the extent that it undertakes

the subpoena) and shall set forth spean enforcement or other regulatory ac

cific reasons why the information retion which requires an agency hearing

quested is clearly not necessary for the on the record or which otherwise could

OFI to carry out its duties, or should result in the imposition of serious

otherwise be withheld. The OFI presidsanctions against the responding per

ing officer may deny or grant the moson, the OFI will gather the necessary

tion in whole or part; stay or extend information through interrogatories,

the time for compliance; or modify the document production, depositions, and

subpoena as appropriate. other forms of discovery.

8 1504.109 Formal OFI proceedings(b) The rules governing such discov

compliance orders. ery will appear as part of the OFI's rules of practice and procedure, 10 CFR

When a subpoena issued pursuant to part 1508.

$ 1504.108 has been neither quashed nor (c) Unjustified refusal to comply with satisfied, the OFI may issue a complidiscovery requests may result in the

ance order in accordance with the proOFI issuing a subpoena compelling cedures set forth in 3 1504.105. compliance, as per $ 1504.108.

81504.110 Formal OFI proceedingsg 1504.108 Formal OFI proceedings

judicial enforcement. subpoenas.

Judicial enforcement of a compliance (a) Justification. If the discovery re

order, issued under $1504.109, may be quest for information is refused, as per

sought in accordance with $1504.106. $1504.107(c), if a requested witness refuses to appear, or if a party refuses to

Subpart B-Treatment of “Senproduce evidence, the OFI may issue a

sitive" and "Business" Inforsubpoena compelling discovery, attend mation ance, or production under this section.

(b) Issuance. Subpoenas justified 1504.201 General policy. under $1504.108(a) may be issued by the (a) The OFI agrees in advance to reOFI presiding officer on his or her own sist disclosure of "sensitive" informamotion or on a motion filed with the tion, a narrow category including napresiding officer by any party to the tional security, trade secret, critical OFI proceeding. Subpoenas will be is procurement, and secrecy agreement sued if the presiding officer finds that information. the information requested is necessary (b) For “business" information, howto the duties of the OFI and should not ever, the OFI only agrees to the followotherwise be withheld.

ing: (1) To give to the submitter notice (c) Contents. Subpoenas will bear the and opportunity to object; and (2) to OFI name and seal, the name and posi balance the competing interests as to tion of the issuing officer, and the title disclosure. of the proceeding. Subpoenas will command a named person to testify or

8 1504.202 Document categories. produce reasonably described evidence (a) The “sensitive" category is very or information at a designated time narrow, only including documents and place. The subpoena will contain which, except under court order, should the statutory basis for the request of in no case be distributed outside the the information and how the requested government (and in most cases reinformation is relevant to the execu tained just within the OFI). The followtion of OFI's authority.

ing types of information are “sen(d) Service. Service will be accom- sitive": plished in accordance with $1504.104(d). (1) Documents classified for national

(e) Motion to quash. A motion to security reasons are “sensitive”, the quash a subpoena may be made no only contemplated examples of which more than 5 calendar days from the relate to the reciprocal procurement date of service. Such motion shall be review with the Northern Pipeline filled with the OFI presiding officer who Agency in Canada.

(2) Trade secrets, as explained and de- period of the procurement process, fined in $ 1504.203(b) for this particular while this information continues to be context, also come within the "sen "confidential,” the OFI will deny pubsitive" category.

lic access under FOIA exemption (b)(1), (3) Critical procurement information, that is, information properly classified particularly tentative bids, price and under Executive Order as "in the intervendor conditions, come within the est of national defense or foreign pol“sensitive" designation.

icy.” (See $ 1504.317(a)(1) of subpart C of (4) The "sensitive" category also in this part). cludes information originally received (b) Trade Secrets. Trade secrets are by the submitter under a bona fide se- the core of the "sensitive" category: crecy agreement from the third party (1) The ANGTS sponsors might have originator of the information.

to contract for some highly specialized, (5) There could possibly be other doc- technical, and secret process or mechauments received under circumstances nism instrumental to the design or warranting limited or no distribution construction effort. Privileged information developed dur (2) Public disclosure of the process iting non-ANGTS litigation, for example, self-as contrasted to what was promight warrant an OFI agreement to re- duced by use of the process would sist disclosure. Privacy considerations cause the contractor severe economic might also be relevant here. Because and competitive loss. Disclosure of “sensitive" designation of this type of such trade secrets is not in the public information is presently only hypo- interest, for it could both hamper projthetical, it will receive no elaboration ect expedition and also escalate conin 81504.203.

struction costs. (b) The "business" category entails (3) The OFI will resist any FOLA reinformation either developed at a cost quest for such information, as well as and possessing demonstrable market discourage requests from other agenvalue or the release of which may sub cies or Congressional committees, unstantially impair the competitive posi- less adequate protections are provided. tion of the person who supplied it, FOIA exemption (4)while broader whether an ANGTS sponsor or another than just trade secrets will be emThis is basically proprietary informa ployed. (See $ 1504.317(a)(4) of subpart C tion, disclosure of which would reduce of this part). So too, the Trade Secrets or eliminate its value to the submitter. Act prohibition against unauthorized Unlike "sensitive" information, “busi- disclosure applies primarily to inforness" information may, under certain mation like these trade secrets. circumstances, be disclosed to the pub (4) While the term "trade secret" has lic. The OFI will balance the economic varying connotations depending on the impact of disclosure against the public legal context, the OFI will use the folinterest in access.

lowing criteria to discern if informa

tion is a trade secret, solely for the 8 1504.203 Factors governing designa- purpose of bringing it within the "sention of information as "sensitive".

sitive" category: (a) National Security. While relatively (i) The cost of developing the inforrare, the first type of "sensitive" infor- mation; mation to be protected by the OFI is (ii) The value of the information to “classified" information. Through a the owner and competitor, i.e., the exformal U.S.-Canadian exchange of dip tent of the competitive advantage it lomatic notes establishing reciprocal provides; procedures to administer procurement (iii) The extent to which the informaoversight, the OFI is required to main- tion is not independently known or tain the "confidentiality” of certain available to others; and information disclosed by the Northern (iv) The extent to which the owner Pipeline Agency. Such information has maintained its confidentiality. would constitute “foreign government (C) Secrecy agreements. The OFI will information” and as such would be scrutinize information under secrecy classified as "confidential" under Ex- agreements from a narrow perspective ecutive Order 12065. During the limited similar to that employed for trade se

crets. These secrecy agreements could submitter will then have the burden of well be insisted upon by the trade se proving to the OFI that the requested cret owner contracting with the information is truly valuable and that ANGTS sponsor. The OFI will closely disclosure will reduce or eliminate that review such secrecy agreements to as- value. sure that they are:

(c) Factors against disclosure. While (1) Necessary, in terms of the sponsor OFI disclosure of such information being able to gain possession of the in

would not, strictly speaking, impair formation on reasonable conditions; competitive position, it might reduce

(2) Enforceable against the submit or eliminate the potential for revenues ter, i.e., through civil damages; and

from a future sale. Beside this general (3) Not formed to circumvent the economic impact, the OFI will consider OFI'S regulations limiting special

the following ANGTS-specific factors treatment for "sensitive" information. militating against disclosure: (d) Critical Procurement. Critical pro

(1) For "business" information merecurement information will be protected

ly held by an ANGTS sponsor but through the FOIA (b)(4) exemption, and

owned by a third party, such as proincludes primarily tentative bids (price

curement-related information of a provendor, and conditions), disclosure of

spective vendor or contractor, public which before completion of the process

disclosure might be shown to impair could skew the procurement, leading to

the sponsor's ability to procure future delay and/or cost escalation. Critical

goods and services at a reasonable procurement information of the

price. ANGTS sponsors will also retain the

(2) To the extent that "business" in“sensitive" designation subsequent to

formation is utilized by the sponsors the award of a contract.

for ANGTS construction, the associ$1604.204 Factors governing designa ated costs will be capitalized for rate tion of information as "business".

base inclusion. As such, the consumers

of Alaskan gas will pay for such “busi(a) Proprietary nature. “Business” information is proprietary, commercial

ness" information. The revenues from or financial information, the release of

any subsequent sale of this "business" which may substantially impair the

information should be used as a credit competitive position of the person who

to rate base, thereby benefitting the supplied it, whether an ANGTS sponsor

gas consumer, who has been paying for or another. In the majority of cases,

such information. Therefore, when rulthe ANGTS sponsor will incur substan

ing on requests for public disclosure of tial costs to develop or purchase nu

the sponsors' “business" information,

the OFI will consider, on the one hand, merous studies, plans, designs, methods, systems, etc., associated with

the likelihood and magnitude of future project completion. While not "sen

gas consumer rate reduction if access sitive" information, these documents

is denied and, on the other hand, the nonetheless possess some value; that

purpose to be served if access is grantis, the sponsors might at some time

ed. find a willing buyer for the informa

(3) While the OFI's authority to gathtion.

er information is expansive (see sub(b) Treatment. “Business” informa part A of this part), public disclosure of tion generally comes within FOLA ex

certain types of “business" informaemption b(4), but the OFI is not com- tion might increase submitter resistmitted necessarily to resisting its pub ance and thereby increase the OFI's lic disclosure. Instead, the OFI will need to use compulsory rather than balance the economic harm of disclo voluntary process for subsequent inforsure against the public interest sup mation gathering. This eventuality porting the access request. In so doing, could impair the OFI's ability to expethe OFI will first notify the submitter dite ANGTS construction, something of "business" information that a re- which the OFI would try to avoid. quest for access has been made or that (d) Factors favoring disclosure. (1) Disthe OFI on its own initiative intends to closure is the statutory preference disclose it, as detailed in $1504.208. The under FOIA.

sider petitioning the OFI for a “business" designation, as per $1504.207; or

(iii) The petition is inadequate for making a final determination, in which case the petitioner will have five calendar days from receipt of the determination in which to cure the petition.

(2) For "business" information related to its overall role of administering the equal opportunity program for ANGTS preconstuction and construction (see 43 CFR part 34 and 10 CFR part 1534), the OFI will accord the maximum public access permitted within relevant legal parameters, as described in this subpart. 8 1504.205 Procedures to designate in

formation as "sensitive". (a) Any person, who has been requested by the OFI to provide information, including computerized data, which that person believes to be “sensitive," must so designate the information on its face and also submit, simultaneously with the information, a petition justifying that “sensitive" designation.

(b) A petition for "sensitive" designation must contain the following:

(1) A thorough statement (including documentary support and sworn affidavits if appropriate) explaining why the information is "sensitive," pursuant to the criteria set forth in $$ 1504.202 and 1504.203;

(2) When appropriate, the length of time and the circumstances under which the information should remain designated "sensitive”; and

(3) The name and address by which the petitioner can promptly be reached by the OFI (through letter or telegram) concerning the petitioned-for designation.

(c) Upon receipt of the petition, the OFI General Counsel or designee will determine whether the information will be designated as "sensitive.”

(1) The General Counsel or designee will make this determination as soon after receipt of the petition as is practicable, but in the interim the petitioner may not assume that the petition has been approved.

(2) The General Counsel or designee will notify the petitioner of one of the three following determinations:

(1) The information is designated as “sensitive" and thus will be protected from public disclosure under all circumstances, as per $ 1504.206;

(11) The information is not designated as "sensitive," in which case the petitioner may, where appropriate, con

8 1504.206 Treatment of "gensitive" in

formation. (a) For information designated by the OFI as "sensitive,” under $ 1504.205(c)(2)(A), the OFI will take the following internal steps:

(1) The designated information will be officially stamped on its face as “sensitive,” with the notations that public disclosure is prohibited; that the OFI General Counsel must first ap prove disclosure within the Government; and that internal distribution and copying is also prohibited unless approved by the OFI Security Officer. The "sensitive" designation will remain unless the General Counsel determines that changed circumstances make it necessary to remove such a designation, in which case the submitter will be so notified immediately.

(2) The OFI will impose stringent internal control procedures for the designated information, including special locked storage facilities, an assigned custodian, and a system of written logs to assure limitation on distribution and copying.

(b) When a request for public disclosure of the designated information is received, the OFI Freedom of Information Officer will so notify the original submitter of the "sensitive" informetion.

(c) Any information designated "sensitive," which is released pursuant to either a joint federal/state agreement or any other arrangement, shall not be released to the public by the State or any other entity receiving it.

(d) To the extent that a state agency or any other respective entity does not agree in advance to $1504.206(c), the OFI will not release such information to it.

(e) If the OFI subsequently encounters difficulties in resisting public disclosure of sensitive" information, the OFI General Counsel or designee will so notify the original submitter, affording an opportunity for the submitter to

take whatever supplemental legal ac- (b) When a request for public disclotion it deems appropriate to assist the sure of the information stamped "busiOFI in resisting disclosure.

ness" is received or when the OFI on

its own initiative intends to make $ 1504.207 Procedures to designate in. pubic disclosure, the OFI Freedom of formation as "business”.

Information Officer will so notify the (a) Any person, who has been re original submitter of the information, quested by the OFI to provide informa giving the submitter up to five days to tion, including computerized data, supplement the original petition for which that person believes to be “busi- “business” designation, first filed purness," must so designate the informa- suant to $1504.207(a). This tion on its face and also submit, simul- supplementation may be accompanied taneously with the information, a peti by a sworn affidavit if appropriate and tion justifying that “business" des should include the following: ignation.

(1) Statement of any change in facts (b) A petition for “business" designa- since the petition was first filed (intion must contain the following:

cluding whether the petition has be(1) A concise statement explaining come unnecessary); why the information is "business," (2) Detailed explanation of the marpursuant to the criteria set forth in ket value of the information at issue $1504.204 of this part, including particu- and why disclosure would reduce or lar analysis of the factors for and eliminate that value; and against disclosure;

(3) Suggested ways to minimize eco(2) When appropriate, the length of nomic harm from disclosure while still time and the circumstances under affording public access, such as isolatwhich the information should remain ing the specific portions of documents designated "business”; and

warranting special treatment. (3) The name and address of a respon- (c) As part of the OFI initial detersible person, who can speak for the pe- mination on any FOLA request for titioner and who can promptly be stamped information (under $$ 1504.309 reached by the OFI (through letter or and 1504.312 of subpart C) or as part of telegram) concerning the petitioned an independent OFI decision to disclose for designation.

that stamped information to the pub(c) Upon receipt of the petition, the lic, the OFI General Counsel or desOFI General Counsel will briefly review ignee will make one of the following the matter and reject petitions which decisions on the pending petition for are patently inadequate. This brief re- “business" designation: view, however, does not constitute (1) The information is not "business" final action on the petition. Until the within the meaning of $ 1504.204(a), and petition is formally considered (see the petition is therefore denied. If $ 1504.208 of this part) by the OFI, the there is no other reason to withhold petitioner may not assume that the pe public disclosure, the OFI Freedom of tition has been approved.

Information Office will then grant the

FOIA request. $ 1504.208 Treatment of "business" in (2) The information is “business" formation.

within the meaning of 1504.204(a). The (a) For information petitioned to be petition is therefore granted and the designated as “business," for which the information is designated as “busipetition has not been rejected as pa ness.” However, when balancing the tently inadequate under $1504.207(c), competing factors as to disclosure the OFI will stamp “'business' petition under $1504.204(b) through (d), the pubpending," with the notation that pub- lic interest favors disclosure. Thus, the lic disclosure is not allowed without OFI Freedom of Information Office will prior official OFI approval pursuant to then grant the FOIA request. this section, whether in the case of (3) The information is “business" FOIA requests or disclosure at the OFI within the meaning of $1504.204(a). The employee's own initiative. Otherwise, petition is therefore granted, and the the OFI will impose no special proce information is designated as “busidures for internal control.

ness.” When balancing the competing

« PreviousContinue »