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Another Take on FOIA Objections by Contractors

Last week, I wrote about the reviews conducted by outside entities that want to protect (or conceal) information that is being released through the Freedom of Information Act (FOIA). The reviews are permitted by Executive Order 12600. I think that the redactions made due to a non-governmental entity’s objections are all too frequently rubber stamped by the government. Furthermore, the redactions are not identified as having been made in response to a 12600 review. It’s POGO’s position that the FOIA requester has a right to know when a 12600 review is conducted, and when a redaction results from the review. The government should label those redactions in its FOIA response.

I received a thoughtful email from Tom Susman, who, since the 1970s, has worked to improve government openness and has counseled clients on numerous issues related to the topic. As you will see, he took a very conservative approach to 12600 reviews. We need more of Tom’s thinking inside and outside government, but as it stands right now, my fear is that the 12600 review process is being abused by those who don’t share his feelings about the public’s, and even a competitor’s, right to access government information.

You paint with too broad a brush in your recent posting.

When in private practice, I made many a claim of b(4) confidentiality protection for information in documents submitted by my clients to agencies. Most were honored, not because the agency used a rubber stamp, but because: (1) I always carefully specified redaction of only the information that I felt we could prove to be protected confidential business information (CBI) if challenged in court (which sometimes happened). (2) I provided specifics regarding competitive harm (which judges require). (3) I included an affidavit from an informed employee of the client to detail the claim of harm. (You would not be surprised to learn that this request by me often led the client to abandon many confidentiality claims.) The affidavit also illustrated the serious and credible nature of the claim should we wind up in court. And, (4) I always stood ready to discuss the claims with the agency should anyone have specific questions.

One reason this usually worked is that most requests for CBI were from competitors, so we knew the competitive implications. (Yes, I requested info with CBI submitted by contractors for my clients as well.)

Having said that, there is no question that agencies should routinely inform a requester if the submitter is being consulted. And, at the risk of divulging my trade secrets—wait, I'm no longer plying that trade—any request by the agency to the submitter and any correspondence from the submitter are fair game for a follow-on FOIA request.

On behalf of a submitter I would always routinely request copies of the initial request; agencies usually give that up without a FOIA. Sometime it would reveal the requester as a competitor. Sometime it would allow me to cut our the middle-man and negotiate directly with the requester—sometimes an efficient and usually speedy way to resolve things. That wouldn't work with a public interest organization or media person, needless to say.

In any event, I thought I’d provide you with some additional context. Feel free to post this as a comment to your thoughtful but overly generalized observations.

By: Scott H. Amey, J.D.
General Counsel, POGO

scott amey Scott Amey is General Counsel for the Project On Government Oversight. Some of Scott's investigations center on contract oversight, human trafficking, the revolving door, and ethics issues.

Topics: Open Government

Related Content: Government Secrecy, Contractor Accountability, FOIA, Information Access

Authors: Scott H. Amey, J.D.

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