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FOIA Update: OIP Guidance: Discretionary Disclosure and Exemption 4
FOIA Update
Vol. VI, No. 3
1985 The Logical Scope of § 1905 Discretionary Disclosure Conclusion
Vol. VI, No. 3
1985
OIP Guidance
Discretionary Disclosure and Exemption 4
It is well known that federal agencies generally have discretion under the Freedom of Information Act to decide whether to invoke applicable FOIA exemptions. As the Supreme Court held in Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979), FOIA exemptions are not "mandatory bars to disclosure." However, in the case of "business" information, such a disclosure prohibition does exist independently in the form of the Trade Secrets Act, 18 U.S.C.
Additionally, any contemplated agency disclosure of information that would arguably be in violation of
The scope of the Trade Secrets Act has always been somewhat unclear. By its express terms, it prohibits agency employees from disclosing, unless otherwise "authorized by law" to do so, any information which "concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity,
Although the Supreme Court in Chrysler expressly declined to "determine the relative ambits of Exemption 4 and
Moreover, it must be remembered that
Therefore, when considering disclosure of information which is arguably encompassed within the seemingly broad language of
Of course, where Exemption 4 does apply to the information in question, "section 1905 must be considered to ascertain whether the agency is forbidden from disclosing the information." H.R. Rep. No 880, 94th Cong., 2d Sess., pt. 1, at 23, reprinted in 1976 U.S. Code Cong. & Ad. News 2183, 2205. The FOIA itself cannot be the "authorization by law" to release exempt information because by its very terms, the FOIA "does not apply" to material encompassed within its exemptions. 5 U.S.C.
In sum, agencies should be aware that
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* In those instances where Exemption 4 could be invoked to protect solely the interests of the government -- for example, where disclosure would impair an agency's ability to obtain such information in the future, see National Parks & Conservation Ass'n v. Morton, 497 F.2d 765, 770 (D.C. Cir. 1974), or would affect its "program effectiveness," id. at 770 n.17, it is not at all clear that
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Updated August 13, 2014
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