Shortly after the passage of FOIA, this exemption was interpreted as preventing agencies from disclosing to a requestor information contained in his own files. The Conference Report on the 1974 amendments makes it clear that this was not the intent of the Act, stating that "disclosure of information about a person to that person does not constitute an invasion of his privacy."34 Even before that, however, the confusion had been corrected and for some time, up to the passage of the Privacy Act, FOIA was the only vehicle through which individuals could seek access to their own records. Trade Secrets, Business and Financial Data Although the Criminal Code imposes penalties for the unauthorized disclosure or misuse of such information by Government employees,35 there is no Federal law of general applicability protecting the confidentiality of commercial or business data as such.36 In other words, there is not, for the business community, a fair information practices law, similar to the Privacy Act, which gives business entities some degree of control over the collection, maintenance, use, and dissemination of the data which they supply to the Federal Government. As with the individual information it amasses, the executive branch, in connection with its regulatory, administrative, executive, and policy-making functions, needs to collect much of the data which it does, and, in many instances, the collection of such data is mandatory. In other instances, where, for example, business entities seek governmental benefits or privileges (e.g., leases, licenses, contracts), information is submitted on a voluntary basis, with or without a pledge of confidentiality. Fair information practice standards for business or commercial data, like those for personal individual information, have been enacted over the years on a piecemeal basis, limited to the type of information collected or the agency which collects it. Unlike controls enacted with respect to individual data, however, such laws have attempted to regulate only the dissemination of information. (In some instances, as with data collected by the Internal Revenue Service or by the Census Bureau, restrictions on disclosure apply equally to business and individual information.) 34 S. Rep. 1200, 93d Cong., 2d Sess., p. 13 (1974). 35 E.g., 18 U.S.C. §1902 (crop information); §1904 (information relating to 25 26 Historically, concerns over the dissemination of business or financial data were evinced long before any publicly voiced concerns for abuses of personal privacy.37 This history undoubtedly reflects not only the stronger lobbying position of the business community but also the gradual evolution of Federal regulatory activities and the Government's concomitant information needs. Statutory Approaches Used to Regulate the Dissemination of Business Data Staff research revealed a number of laws (approximately 90 in all) reflecting varied approaches to the regulation of the disclosure by Federal agencies of the information they collect from or maintain about business entities38 Trade Secret Information. Approximately half these laws restrict the disclosure of information characterized as "trade secrets." Although the term is not generally defined, in most instances it is described as data that would fall within the scope of 18 U.S.C. §1905, as information which "concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; . . ."'39 In a few instances, it is described as information encompassed within the scope of exemption (b)(4) of the Freedom of Information Act, discussed below.40 Among the numerous statutory provisions restricting the dissemination of "trade secrets," several approaches have been noted. Most merely label the material as "confidential" or provide that it shall be disclosed only to the Congress or to others, either in the same agency or in other Federal agencies, concerned with administering or enforcing that particular law.41 Others prescribe somewhat 37 See discussion of U.S. Census data, supra. 38 Most of the statutes reviewed were the product of a computer search 40 E.g., 21 U.S.C. §§360j(c) and 379. 41 E.g., 7 U.S.C. §§136e(d) and 136h(b); 15 U.S.C. §§79v, 1193(c), 1401(e), 1402(b)(2), 1914(b), 1944(f), 1990d(d), and 2055(a)(2); 19 U.S.C. §2155(g); 21 U.S.C. §§331(j) and 360j(c); 29 U.S.C. §664; 33 U.S.C. broader dissemination as, for example, to other Federal agencies for their own uses.42 Some leave the disclosure of such data to the discretion of the head of the agency.43 A few require that safeguards be provided to preserve the confidentiality of the data disclosed.44 Commercial and Financial Information. In addition to those laws regulating the dissemination of the confidential data encompassed within 18 U.S.C. §1905, other laws restrict the disclosure of specific types of discrete commercial and financial information. For example, included within this category are laws proscribing the release of certain marketing data, cost data, tax return information, employment records, credit information, and the like. Many prohibit the public disclosure of such material, at least in identifiable form.45 Some permit disclosure, in confidence, to other specified Federal agencies.46 Others provide for the discretionary release of certain credit or financial data.47 Research Information. Many agencies promulgate regulations which make research proposals, contract information, research methods, and certain research data confidential. Most statutory provisions restricting the disclosure of data obtained in the course of Federal or federally financed research activities are phrased in terms of protecting trade secrets or confidential commercial or financial information. Nevertheless, there are several statutes which treat research data separately.48 As the broad dissemination and §§1318(b)(2), 1322(g)(3), and 1369(a)(1); 42 U.S.C. §§300j-4(d), 1857c9(c), 1857f-6(b), 1857h-5(a)(1), 4912(b), and 5406(b); 46 U.S.C. §1463(b); and 49 U.S.C. §1681(d). 42 Some laws require that the information be so disclosed. E.g., 15 U.S.C. §796(d) and 42 U.S.C. §5916. 43 E.g;, 7 U.S.C. §12-1 (to other agencies); 15 U.S.C. §1418 (a)(2)(B) and (C) and 2217; 21 U.S.C. §379 (to agency contractors); 33 U.S.C. §1513(b)(1); 42 U.S.C. §§263g(d) and 4912(b)(1) (to other agencies); 46 U.S.C. §1464(d); 49 U.S.C. §§1357(d)(2) and 1905(b). Within certain specific guidelines, the Federal Reports Act, 44 U.S.C. §§3507 and 3508, also provides for interagency disclosures at the discretion of the Director of the Office of Management and Budget. 44 E.g., 7 U.S.C. §12-1 (limitations on redisclosure); 21 U.S.C. §379 (safeguards required); 33 U.S.C. §1513(b)(1) (disclosure in a manner to preserve confidentiality); 42 U.S.C. §4912(b)(1) (disclosure in confidence); 42 U.S.C. §5916 (redisclosure to public prohibited); 49 U.S.C. §1905(b)(1) and (3) (disclosure in a manner to preserve confidentiality). 45 E.g., 7 U.S.C. §136h(b); 12 U.S.C. §1701z-2(g); 13 U.S.C. §9; 15 U.S.C. §§ 176a, 717g, and 1402(b)(2); 19 U.S.C. § 2155(g); 26 U.S.C. § 6103; 42 U.S.C. §§ 2000e-8(e) and 5406(b); 46 U.S.C. § 1173(c)(3); and 47 U.S.C. § 220(f). 46 E.g., 12 U.S.C. §§ 1442 and 2257 (authorizing disclosure, in confidence, 47 E.g., 12 U.S.C. §§ 161(a) and 1701z-2(d); 46 U.S.C. § 1173(d). 27 28 utilization of the results of the research are inherent in the purpose of such legislation, most, like the Census Act, restrict the disclosure of this material only to the extent that publication would reveal the identity of the information furnished by a particular person or establishment or would divulge trade secrets.49 A few laws do, however, leave the dissemination of research data to the discretion of the head of the agency.50 Public Disclosure of Business or Commercial Data or of "Trade Secrets": Freedom of Information Act Exemptions The FOIA contains four exemptions pursuant to which agencies may (3) specifically exempted from disclosure by statute (other (4) trade secrets and commercial or financial information (8) contained in or related to examination, operating, or (9) geological and geophysical information and data (includ- The 1974 amendments made no change in exemptions (b)(3), (4), 94-187; Fire Research and Safety Act of 1968, P.L. 90-259, as amended 49 E.g., Egg Research and Development Act of 1974, 7 U.S.C. § 2706(c); 50 E.g., Air Transportation Security Act, 49 U.S.C. § 1357(d)(2), and Solar Energy Research, Development, and Demonstration Act of 1974, 42 U.S.C. § 5557. 51 Another exemption, that provided in subsection (b)(5) for "inter-agency or intra-agency memorandums", although generally applicable to government-generated information, may sometimes encompass proprietary business data submitted to one agency and transferred to another. For discussion of this exemption, see notes 110-115, infra, and accompanying text. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempted under this subsection. Exemption (b)(3): Exemptions Conferred By Other Statutes. This exemption, as contained in both the 1966 FOIA and the Act as amended in 1974, permitted the withholding from public disclosure of any matter "specifically exempted from disclosure by statute.' Despite consistent judicial language holding that the FOIA exemptions were to be narrowly construed, 52 the Supreme Court, in FAA Administrator v. Robertson, 53 gave this exemption a rather broad interpretation. The data sought in that case were Systems Worthiness Analysis Program (SWAP) Reports, analyses by FAA staff of the operation and maintenance performance of commercial airlines, based, in part, on information furnished by the airlines under an assurance of confidentiality. Section 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information on the specific objection of a person involved if, in the Administrator's judgment, disclosure would adversely affect the interests of the objecting party and would not be required to serve the public interest. Despite the discretionary language of this provision, certainly not tantamount to a specific requirement or even specific authority to withhold data, the Court held that exemption (b)(3) did apply and that the SWAP reports were exempt from public disclosure. Chief Justice Burger, writing for a divided court, reasoned that "specific," as used in exemption (3), could not be read to mean that the exemption applied only to documents specified, either by naming them precisely in the statute or by describing the category in which they fell. Congress, he reasoned, was well aware of the nearly 100 statutes authorizing secrecy when it passed the FOIA54 and, by including exemption (3), intended to permit such confidentiality laws to stand. By permitting confidentiality, the public interest would be served by assuring a flow of relevant information to the regulatory authorities from the airlines. The Robertson decision, by allowing an administrator's discretion, pursuant to a general "public interest" standard, to determine whether information should be disclosed, seemed patently inconsistent with the general public disclosure thrust of the Freedom of Information Act. If there were any doubt as to Congress' intent when it drafted exemption (3), that doubt has now been resolved. The exemption was recently amended by the Government in the Sunshine Act,55 effective March 12, 1977, with the specific purpose of overruling the holding in the Robertson case.56 By adding the proviso language to exemption (3), Congress took issue with the 52 See cases cited in n. 7, supra. 53 422 U.S. 255 (1975). See also Parker v. E.E.O.C., Civ. No. 74-1262 (D.D.C., 1975), aff'd. 534 F.2d 977 (D.C. Cir., 1976). 54 A survey conducted by the Administrative Conference of the United States in 1962 indicated that there were close to 100 laws which imposed some limitations on disclosure, See H. Rep. 1497, n. 31, supra, p. 10. 55 P.L. 94-409, 5 U.S.C. §552b. 56 122 Cong. Rec. of July 28, 1976, pp. 7873, 7897. 29 |