Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The federal Freedom of Information Act (“FOIA”) contains nine exemptions. Under the exemptions, the government can withhold information that might otherwise be available for disclosure. See 5 U.S.C. § 552(b)(1)-(9). FOIA “Exemption 4” applies to “trade secrets and commercial or financial information obtained from a person and privileged and confidential.” In a recent decision, the 9th Circuit Court of Appeals applied Exemption 4 to Notices of Seizure issued by the United States Bureau of Customs and Border Protection (“CBP”) to an importer of merchandise potentially infringing on a U.S. trademark.. CBP had heavily redacted the Notices of Seizure in responding to a FOIA request.

For application of Exemption 4, the 9th Circuit requires a government agency to demonstrate the information to be withheld is “(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged or confidential.” (Watkins v. U.S. Bureau of Customs and Border Protection, No. 09-35996, 5/6/11). The Court found that the Notices contained “plainly commercial information, which discloses intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise.”

But, under a separate statute, Notices must be disclosed to a trademark owner that may be aggrieved by the purported violation by the importer.

When disclosure is made to a trademark owner, the government imposes no restriction on the owner’s use of the information in the notice. He can freely disseminate the notices to his attorneys, business affiliates, trade organizations, the importer’s competitors, or the media in a way that would compromise the purportedly sensitive information about an offending importer’s trade operations. This no-strings-attached disclosure thus voids any claims to confidentiality and constitutes waiver of Exemption 4. FOIA accordingly creates an obligation for the government to disclose the requested documents.

In addition to other specific exemptions from disclosure, the Washington Public Records Act contains a similar provision that allows an agency to withhold “financial, commercial and proprietary information.” R.C.W. 42.56.270. That exemption from disclosure also includes:

proprietary data, trade secrets, or other information that relates to: (a) A vendor’s unique methods of conducting business; (b) data unique to the product or services of the vendor; or (c) determining prices or rates to be charged for services [for certain social and health services and health care activities].

R.C.W. 42.56.270(11).

The Uniform Trade Secrets Act, Ch. 19.108 RCW, also provides exemptions from disclosure under the Public Records Act through the “other statute” provisions of RCW 42.56.070(1) (formerly RCW 42.17.260(1)). Progressive Animal Welfare Soc’y v. University of Washington, 125 Wn.2d 242, 262, 884 P.2d 592 (1994).

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In a decision issued on May 16, 2011, the United States Supreme Court examined the meaning of the term “report” under the Freedom of Information Act (“FOIA”). (Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188, 2011).

The case arose when Daniel Kirk, a Vietnam veteran, sued his former employer, Schindler Elevator, under the federal False Claims Act. He asserted that Schindler, a government contractor, had submitted false claims by failing to file Vietnam Veterans Act reporting forms that were required under Schindler’s government contract. Kirk had confirmed the lack of Vietnam Veterans Act reporting through a FOIA request.

The False Claims Act, however, has a “public disclosure bar.” 31 U.S.C. § 3730(e)(4)(A). That bar precludes a whistleblower suit based on information (including reports) obtained through a FOIA request. The Supreme Court reversed the Second Circuit Court of Appeals and rejected an argument that the word “report” should receive a narrower meaning than simply “something that gives information.” The Supreme Court looked to the ordinary meaning of the word “report.” Citing dictionary definitions, the Supreme Court defined the term to include “something that gives information,” a “notification,” and “[a]n official or formal statement of facts or proceedings.” As a result, the disclosure of public records in response to a FOIA request constitutes a “report” and a False Claims Act case cannot be maintained based upon such a disclosure.

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Has the Obama Administration effected real change in FOIA responsiveness? A recent Associated Press article, claims that the federal Freedom of Information Act is unwieldy and difficult, and that only the most patient and persistent requesters actually obtain the sought-for information. The article is critical of agencies’ efforts in implementing President Obama’s promise to make government more open and release more information rapidly.

During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”

But perhaps there has been a change in how the Administration views the FOIA – now that it is on the inside. In a blog posted March 16 to celebrate Sunshine Week, Steve Croley, a Special Assistant to the President for Justice and Regulatory Policy, points out that it is not in the public’s interests to release every document: “Our government also owes its citizens, among other things, protection of their personal privacy and business confidentiality, effective law enforcement, and a strong national defense.”

In Washington State on the other hand, the courts continue to liberally construe the state’s Public Records Act, and continue to extended its reach. See, for example, the expansive interpretation of the Public Records Act to include records contained on a city council member’s home computer discussed in our blog post of December 22, 2010, “City of Monroe, Washington Pays $157,394 to Settle Public Records Act Case.”
 

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The New York Times has been reporting on how open public records laws are being enlisted in the fight against governmental corruption – not here in the United States – but on the other side of the world, in rural India. In 2005, India joined a growing list of developing countries to enact a national open public records law, known as the Right to Information Act (“RIA”).  The legislation’s preamble asserted that “democracy requires an informed citizenry and transparent information” and identified curbing governmental corruption as a central goal of the RIA. The RIA requires governmental agencies to respond to citizen requests for information within 30 days of receiving a request. Similar to Washington’s Public Records Act, 42.56 R.C.W., and the federal Freedom of Information Act, 5 U.S.C. § 551-559, governmental agencies that fail to comply with information requests are subject to daily penalties. 

In 2010, the New York Times reported on how the RIA was leveling the playing field between corrupt governmental bureaucrats and India’s poor.  Right-To-Know Law Gives India’s Poor a Lever, New York Times, June 28, 2010. The piece included a number of stories illustrating how India’s poorest citizens used the RIA to spur governmental bureaucrats into action.  One story involved an impoverished mother of three who had been waiting for four years to receive a housing assistance grant. After seeing her well-to-do neighbors receive grants ahead of her, the mother used the RIA to request records detailing who had received grants in her community and why. Days after submitting the request, governmental officials approved her grant. In another village, community members became fed up with a public health care worker who rarely showed up to staff the community health clinic. The citizens utilized the RIA to request copies of the clinic’s attendance records. With her attendance record revealed, the health care worker started showing up every day. Success stories like these have provided hope to good governance advocates that India is moving in the direction of open and transparent government.

However, on January 22, 2011, the New York Times published a follow-up story showing how opponents of open government have begun using violence to intimidate and silence requesters. High Price for India’s Information Law, New York Times, January 22, 2011. The article described one case where a requester was murdered after uncovering evidence about an illegal mining operation that may have involved government officials. The author estimated that at least a dozen requesters have been murdered since the RIA was enacted in 2005 and scores of others have been beaten and harassed. This violence is apparently having a chilling effect on many would-be activists. 

Time will tell whether India’s nascent open public records policies can survive this backlash. 

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Update 7/12/09

Here is another article from Florida on whether governments should use web 2.0 sites:
"Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter"

Update 7/7/09

Spies should also stay off Facebook:  "British spy chief outed on wife's Facebook page" 

Update 6/2

Apparently Judges should stay off Facebook too.  Here's an article about a Judge who was reprimanded after accessing a litigant's Facebook site. 

Original Post  5/18

As the benefits of Web 2.0 personalized communication -- like Facebook, YouTube and Twitter -- become more apparent, public agencies and politicians are quickly looking to these tools to communicate with the public. Several Washington State agencies, including the Secretary of State and Attorney General (links Twitter, Facebook and YouTube at the bottom of the AG's homepage) use Web 2.0 sites such as Facebook.  Here's a PowerPoint presentation from the Secretary of State's office explaining the benefits of Web 2.0 sites. 

Use of Web 2.0 sites is not without risk, however.  As highlighted in this article about the advice of a city attorney in Florida to his city council -- stay off Facebook, there are concerns about whether the use of such sites affects a government's ability to comply with public records, records retention and open public meetings laws.  The city featured in the article concludes:

It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government.  For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology. 

Earlier this year the Obama administration highlighted some other issues with the "terms of service" users of YouTube and other Web 2.0 sites, such as one-sided reimbursement clauses and sites' use of cookies to track visitors.  Both were inconsistent with federal law or federal policy. 

Here is an article reviewing the use of Web 2.0 products by governments throughout the country.

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Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman.  It was inspired by George Will's recent statement on ABC's This Week:  "The problem with transparency is that it’s transparent for the terrorists as well.”

Update 5/13:  Here's the Og-Blog's take on the editorial.  As it correctly notes, President Obama's administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout. 

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