FALL 2008

Trade Secrets

 

Course No. 9200-704 (and 804)-801

ID No. 16545

MW 3:00 - 4:30 p.m.
Room L-134
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu
Copyright © 2000, 2002, 2003, 2006, 2008   Jay Dratler, Jr.   For permission, see CMI.

Freedom of Information Act, 5 U.S.C. § 552 (edited)


§ 552.  Public information; agency rules, opinions, orders, records, and proceedings
    (a)  Each agency shall make available to the public information as follows:
      (1)  Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—

        (A)  descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

        (B)  statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

        (C)  rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

        (D)  substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

        (E)  each amendment, revision, or repeal of the foregoing.

      Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.  For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

      (2)  Each agency, in accordance with published rules, shall make available for public inspection and copying—

        (A)  final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

        (B)  those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

        (C)  administrative staff manuals and instructions to staff that affect a member of the public;

        (D)  copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and

        (E)  a general index of the records referred to under subparagraph (D);


    unless the materials are promptly published and copies offered for sale.  For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.  To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D).  However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made.  If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.  Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published.  Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.  Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication.  A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
          (i)  it has been indexed and either made available or published as provided by this paragraph; or

          (ii)  the party has actual and timely notice of the terms thereof.
      (3)
        (A)  Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
* * *
        (E)  An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to—

          (i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

          (ii) a representative of a government entity described in clause (i).
      (4)
        (A)
          (i)  In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced.  Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.

      * * *

          (iv)  Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. * * *

          (v)  No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $ 250.

* * *

        (B)  On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.  In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. * * *

      * * *
        (D)  [Repealed]

        (E)
          (i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

          (ii)  For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—

            (I) a judicial order, or an enforceable written agreement or consent decree; or

            (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.

        (F)  (i)  Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. * * *

        * * *

        (G)  In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
      (5)  Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
* * *
    (b)  This section does not apply to matters that are—
      (1)  (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) 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 (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

      (4)  trade secrets and commercial or financial information obtained from a person and privileged or confidential;

      (5)  inter-agency 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)  records or information compiled for law enforcement purposes. . . .

      (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 or geophysical information and data, including maps, concerning wells.
    Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.  The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made.  If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.
* * *
    (d)  This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.  This section is not authority to withhold information from Congress.
* * *
    (f)  For purposes of this section, the term—
      (1)  "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and

      (2)  ) "record" and any other term used in this section in reference to information includes—

        (A)  any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and

        (B)  any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.
    (g)  The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including—
      (1)  an index of all major information systems of the agency;

      (2)  a description of major information and record locator systems maintained by the agency; and

      (3)  a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44 [44 USCS §§ 3501 et seq.], and under this section.
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