[Exhibit 30] EXCERPTS FROM EPA FOIA REGULATIONS §2.118 Exemption categories. (40 CFR 2.118, 2.119) (a) 5 U.S.C. 552 (b) establishes nine exclusive categories of matters which are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No request under 5 U.S.C. 552 for an existing, located record in EPA's possession shall be denied by any EPA office or employee unless the record contains (or its disclosure would reveal) matters that are (1) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order; (2) Related solely to the internal personnel rules and practices of an agency; (3) Specifically exempted from disclosure by statute; (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would: (i) Interfere with enforcement proceedings; (ii) deprive a person of a right to a fair trail or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the identity or a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source; (v) disclose investigative techniques and procedures; or (vi) endanger the life or physical safety of law enforcement personnel; (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells. (b) The fact that the applicability of an exemption permits nondisclosure of a requested record (or portion thereof) does not necessarily mean that the record must or should be withheld. Where the rights of third parties other than Federal agencies would not be prejudiced, disclosure of records in response to a request is encouraged unless there is an important reason for nondisclosure. §2.119 Discretionary release of exempt documents. (a) EPA may, in its discretion, release requested records despite the applicability of the exemptions listed in paragraphs (a) (2), (5), (7), (8), or (9) of §2.118. (b) As a matter of policy, EPA will not release a requested record if EPA determines that one or more of the exemptions listed in paragraphs (a) (1), (3), (4), or (6) of § 2.118 apply to the record, except when ordered to do so by a Federal court or in exceptional circumstances under appropriate restrictions with the approval of the Office of General Counsel or a Regional Counsel. [Exhibit 31] EXCERPTS FROM FTC FOIA REGULATIONS 34.10 Confidential information. (16 CFR 4.10) (a) The following records of the Commission are exempt from availability for public inspection and copying pursuant to 5 U.S.C. § 552; however, records exempt from disclosure by the provisions of this section may be made available to a requester for inspection and copying upon request for records under the procedures set forth in § 4.11 or by the Commission upon its own motion. (1) Records, except to the extent required to be disclosed under other laws or regulations, related solely to the internal personnel rules and practices of the Commission. This exemption applies to internal rules or instructions to Commission personnel which must be kept confidential in order to assure effective performance of the functions and activities for which the Commission is responsible and which do not affect members of the public. (2) Trade secrets and commercial or financial information obtained from a person and privileged or confidential. This exemption applies to information such as costs or various types of sales statistics and inventories. It would include trade secrets and names of customers in accordance with the restriction of section 6(f) of the Federal Trade Commission Act. Assurances of confidentiality given by Commission staff are not binding upon the Commission. (3) Interagency or intraagency memorandums or letters which would not be available by law to a private party in litigation with the Commission. This exemption preserves the existing freedom of Commission officials and employees to engage in full and frank communication with each other and with officials and employees of other governmental agencies. This exemption includes records of the deliberations of the Commission except for the record of the final votes of each member of the Commission in every agency proceeding. It includes intraagency and interagency reports, memorandums, letters, correspondence, word papers, and minutes of meetings, as well as staff papers prepared for use within the Commission or between the Commission and other governmental agencies. It also includes information scheduled for public release, but as to which premature release would be contrary to the public interest; (4) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy except to the extent such files or materials must be disclosed under other laws or regulations. This exemption applies to personnel and medical records and similar records containing private or personal information concerning any individual which, if disclosed to any person other than the individual concerned or his designated legal representative without his permission in writing, would constitute a clearly unwarranted invasion of personal privacy. Examples of files exempt from disclosure include, but are not limited to: (i) The personnel records of the Commission; (ii) files containing reports, records or other material pertaining to individual cases in which disciplinary or other administrative action has been or may be taken, including records of proceedings pertaining to the conduct or performance of duties by Commission personnel; (5) Investigatory records compiled for law enforcement purposes to the extent that release of information in such records would (i) interfere with enforcement activities, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) constitute an unwarranted invasion of personal privacy, (iv) disclose the identity of a confidential source, (v) disclose investigative techniques or procedures, or (vi) endanger the life or physical safety of law enforcement personnel. This exemption covers, but is not limited to information obtained by the Commission relating to alleged or possible violations of laws administered by the Commission, which information may be in many forms, including letters of complaints, reports of interviews conducted by Commission personnel, memoranda, transcripts of testimony in nonpublic investigational hearings, and evidentiary documents obtained during the course of investigation. (6) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; (7) Geological and geophysical information and data, including maps, concerning wells; and (8) Such other records of the Commission as may from time to time be designated by the Commission as confidential pursuant to statute or Executive order. This exempts from disclosure any information which has been designated nonpublic pursuant to the criteria and procedures prescribed by Executive order and which has not subsequently been declassified in accordance with applicable procedures. The exemption also preserves the full force and effect of statutes which restrict public access to specific Government records. Examples of information in Commission records specifically exempt by statute are trade secrets and names of customers as provided by section 6(f) of the Federal Trade Commission Act. (b) To the extent required to prevent clearly unwarranted invasions of personal privacy, the Commission may delete, with written explanation thereof, identifying details when it makes any of its records publicly available. (c) Under section 10 of the Federal Trade Commission Act, any officer or employee of the Commission who shall make public any information obtained by the Commission, without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and upon conviction thereof, may be punished by a fine not exceeding five thousand dollars ($5,000), or by imprisonment not exceeding 1 year, or by fine and imprisonment, in the discretion of the court [38 FR 1731, Jan. 18. 1973; as amended at 39 FR 4661, Feb. 6, 1974; 40 FR 7629, Feb. 21, 1975; 40 FR 23278, May 29, 1975] LEGISLATIVE HISTORY [Exhibit 32] EXCERPT FROM HOUSE REPORT No. 1497 ON FOIA, 4. Trade secrets and commercial or financial information obtained from any person and privileged or confidential: This exemption would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies. It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government. The exemption would include business sales statistics, inventories, customer lists, scientific or manufacturing processes or developments, and negotiation positions or requirements in the case of labor-management mediations. It would include information customarily subject to the doctor-patient, lawyerclient, or lender-borrower privileges such as technical or financial data submitted by an applicant to a Government lending or loan guarantee agency. It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations. [Exhibit 33] EXCERPT FROM SENATE REPORT No. 813 ON FOIA, 89TH CONGRESS, 1ST SESSION, OCTOBER 4, 1965 Exemption No. 4 is for "trade secrets and commercial or financial information obtained from any person and privileged or confidential." This exception is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained. This would include business sales statistics, inventories, customer lists, and manufacturing processes. It would also include information customarily subject to the doctor-patient, lawyer-client, lender-borrower, and other such privileges. Specifically it would include any commercial, technical, and financial data, submitted by an applicant or a borrower to a lending agency in connection with any loan application or loan. [Exhibit 34] EXCERPT FROM ATTORNEY GENERAL'S MEMORANDUM ON THE PUBLIC INFORMATION SECTION OF THE ADMINISTRATIVE PROCEDURE ACT, JUNE 1967 (4) INFORMATION GIVEN IN CONFIDENCE The scope of this exemption is particularly difficult to determine. The terms used are general and undefined. Moreover, the sentence structure makes it susceptible of several readings, none of which is entirely satisfactory. The exemption can be read, for example, as covering three kinds of matters: i.e., "matters that are *** [a] trade secrets and [b] commercial or financial information obtained from any person and [c] privileged or confidential." (bracketed initials added). Alternatively, clause [c] can be read as modifying clause [b]. Or, from a strictly grammatical standpoint, it could even be argued that all three clauses have to be satisfied for the exemption to apply. In view of the uncertain meaning of the statutory language, a detailed review of the legislative history of the provision is important. Exemption (4) first appeared in the bill (S. 1666) following full committee consideration by the Senate Committee on the Judiciary in the second session of the 88th Congress. It then provided for the exemption of "trade secrets and other information obtained from the public and customarily privileged or confidential.” The Senate report explained the addition of exemption (4) as follows: "This exception is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained. This would include business sales statistics, inventories, customer lists, and manufacturing processes. It would also include information customarily subject to the doctor-patient, lawyer-client, and other such privileges." (S. Rept., 88th Cong., 6). When S. 1160 was introduced in the 89th Congress, exemption (4) differed in two respects from the previous version. The words "commercial or financial" had been substituted for the word "other," and the word "customarily" had been deleted. While the first of these two changes could be read as narrowing the exemption, a comparison of the Senate reports in the 88th and 89th Congress indicates, rather, that it was intended to make sure that commercial and financial data submitted with loan applications would come within the exemption. The description of exemption 4 at page 9 of the Senate report in the 89th Congress is the same as that quoted above from the report in the 88th Congress, except that reference to the "lender-borrower privilege" is inserted and the following sentence is added: "Specifically it would include any commercial, technical, and financial data, submitted by an applicant or a borrower to a lending agency in connection with any loan application or loan." The Senate report in the 89th Congress thus treats the change as expanding rather than contracting the coverage of the exemption, since it not only adds the above language, but also continues to refer to the doctor-patient and lawyerclient privileges, which certainly are not "commercial or financial," and all the other material referred to as exempt in the previous report. Deletion of the word "customarily" apparently had a different basis. While at first glance the reach of "privileged” might be considered extended by removal of the modifying word "customarily," the change also serves a narrowing function by negating the possibility of a privilege created simply by agency custom. The word "customarily" is still used in the report, but with examples of the kinds of privileges which are protected by the exemption. The House report on this exemption generally parallels the Senate language with several additions, including such matters as disclosures or negotiation positions in labor-management mediations, and scientific or manufacturing processes or developments. The report states at page 10: "This exemption would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies. It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government. The exemption would include business sales statistics, inventories, customer lists, scientific or manufacturing processes or developments, and negotiation positions or requirements in the case of labor-management mediations. It would include information customarily subject to the doctor-patient, lawyer-client, or lender-borrower privileges such as technical or financial data submitted by an applicant to a Government lending or loan guarantee agency. It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations." The last two sentences, in particular, underline the protection afforded by this exemption to information given to the Government in confidence, whether or not involving commerce or finance. It seems obvious from these committee reports that Congress neither intended to exempt all commercial and financial information on the one hand, nor to require disclosure of all other privileged or confidential information on the other. Agencies |