ASAP '01 page 17 Business Day

Melanie Pustay, attorney DOJ, OIP.
Critical Mass the main case; contract submission though have been considered required submissions; not much happened for a while.  Center for Auto SAfety v NHTSA argued submission was compelled of ten auto manufacturers on airbags; agency said required, hence National Parks Test.  Ct said submission not required, hence Critical Mass.  Ten or more submissions under Paperwork reduction Act, would go via OMB.  Ct held submission voluntary even though agency and manufacturers had worked under mandatory language, understand was mandatory.  But DC circuit said no subjective factors -- under critical mass objective test only -- did agency have legal authority to require info??  Found not because of Paperwork Red Act -- hence legally only voluntary.  Good decision.  agency had only "flashed its badge" to get info -- cannot get into feelings and expectations in deciding. 

Tom Papson, McKenna & Cuneo.
Good to have categorical rules to aid admin.  Test of literal compulsion though affects the gray areas after critical mass. 

Harry: bothered me that Paperwork red Act is almost never enforced and became basis for this decision. 

Melanie - creative lawyering, agency hadn't really argued Paperwork Red act itself.

Melanie, next case: BLM environmental approval, needed info on pipeline project.  Ct relied on above case to look for legal authority.  BLM regulations said some items required submitted but others may submit.  The "may" stuff was requested.  Ct held voluntary -- despite agency view. 
Effect is to add a certain layer of complexity.

Tom -- but this makes bright line rule, easier to deal with than judgment of competitive harm under National Parks.  IF voluntary submission, then does the Co normally not release the info to competitors and public.
Submitters should mark info now as required or voluntary submissions to help agency in future.
** case was Parker v BLM. **
Harry: ironically, Critical Mass test actually involved info that was routinely shared across industry -- not typical.
Next case:  reverse FOIA, Mellencroft(?) v VA
Rebate & incentive figures in a contract -- agency said same as pricing info which is releasable under usual practices.  CT said not required under National Parks.  Wording was must vs "should," Ct said should is voluntary. 

Cortes v NASA case older, ceiling price rate was only requested, not written into contract. 

Instead of saying whole scheme is required, now agency has to look at each piece of info and language calling for it. 

Mallencrott was the case above.

Tom: submitters had done so poorly that law has really changed this year.

Melanie: Henny v FDA, regular FOIA case where info withheld under competitive harm, for medical device catheter.  Device withdrawn from approval; but Ct agreed that comp harm could still happen because Cos often come back with device later. 

Judicial Watch v Export Import Bank (frequent requester of DOJ) wanted export ins applications (rather than usual fare of hottest issue current) a required submission, detailed info on Co -- and harm to future comp position was found by Ct. 

Very few cases under 3rd prong of national parks, agency protecting program  -- here Export Import Bank could argue Cos would be put off if info could be disclosed. 

Utah v Department Interior upheld competitive harm.  Unusual for state to request -- and be denied info on leases between 2 private parties, Ct said would harm the parties negotiating position in future.  10th Circuit talked about a balancing test under b4 -- but last year DC Circuit said no need, laid this long argument to rest. 

TOM McDonnell DOuglas 2 years ago Ct said Government was setting bar too high on competitive harm -- Dc circuit is saying comp harm test is not hat difficult -- if info would harm negotiating position, that's comp harm.

Mel: Animal welfare group alleged HHS contractor was maltreating animals for research.   Ct rejected agency' withholding co's financials on conclusory showing -- need economic analysis to demo comp harm.  The only rejection of comp harm in year and half.

Harry: UTah concern was indian tribes were negotiating nuke waste on their reservation -- UT f
ASAP '01 page 18 business cases
Harry: DC district judges still rule against Reporters Committee.

Tom: true not legislative history of b4 --congress threw it over wall and left us to worry about "confidentiality" meaning.
Attorney General's memo October 2 -- including imp of sensitive bus info in his list of fundamental values. 

Mel: Center for Auto Safety relied on in new case ??, agency said had only requested info -- but Ct said groups funded for animal research are required by regulation to supply info -- so request is really a demand.  Ct relied on objective test under Center for Auto SAfety test. 

Animals case is slip opinion, civil action no. September 28, 2001, Judge Hogan - may be n Dc district ct web site.

Mel: case where government lost sensitive sec info because had relied on 
b7a and when that was denied by ct, was unable to rely on other exemptions like b7c & d, even though had mentioned them in brief.  Sup Ct denied cert.  see DOJ web.

ASAP '01 page 19 business II

"Working with Exemption 4"
Looking at administrative level, how do you process request once you receive it?
Judy Wise, Navsea, contracting info.
DOD only processes perfected FOIA requests, incl. agreement to pay charges.  b3 includes offerors proposals act and source selection info for procurement.  Proposals not incorporated into contract must be withheld; but those incurred into contract are processed under national parks test. 
Look in Contract cover, section B cost/pricing info, Sect C statement of work.  Source selection info, withheld before award of contract, under procurement Integrity act, 41 USC 2403.  Evaluations & rankings (CPARS latest system) and bid price info all protected.   Can protect process of procurement. 
Executive Order 12600 imp for processing contracts info.  Notify submitter.  Now instead of general notice on web site, give out notification w every response, lots of work -- and first letter from submitter never tells you why not to release, so need a follow-up to get reasons.    Then can defend withholding -- and need to talk to engineers to get argument for competitive harm.  IDA is Inital Denial Authority. 

b5: incorporates fed rules of civl procedures, leading case FOMC v Merrill (1979) -- info collected to enable process of assessing contracts.  Works where contracting repeated annually. 
Withhold A76 studies to protect governments ability to put in comp bid.

"clearly releasable" info with note that it is not denial.  [Like FDA minor deletions policy?]

negotiations, notifications, but document everything., because attorneys get amnesia after negotiations by phone, and change position.
Mail still held up but soon may be deluged.  Cannot get contracts up on web site, forbidden by superiors.
[Audience: INS does have contracts online.]

Joycelene Charry, Anteon Corporation, contractor.
Keeping ships safe, looking for copy of contracts at NavSea, asking for only clearly releasable portions to save time.  Always need it right away.  Normally put cost limit of $60.   9 years experience. 

Patricia Ann Ades Vanstory, of Hyman, Phelps & McNamara.
Deals with FDA Devices frequently.  Usually trying to protect drug Cos device & biologics Cos data submitted to FDA, developed over years.  Imp to establish good faith relation with FOIA officer, credibility. 

Susan Cornell of NIH. 
Contracting, decentralized institution with 27 able to release, I'm only denial authority.  Most requests are for funded applications but unfunded ones are exempt under b4 and other exemptions.  Recently lost b6 for name & address of grantee.  Perfected requests only processed -- general request not enough for major document search -- can explore online system of abstracts first so limit the search.  Most requesters are individuals who don't pay for search time so need to save it.  Predisclosure Notification, but 5 days not enough in regulations so give 10 days.  PI of grant may be in remote village and may not check email every week.  We check ot remove any patent, new science marked up in grants, and need program official to check it.  Sometimes have to tell grantee cannot withhold basic info or whole grant, always segregate portions.  Sometimes prove stuff is in public domain. 
Tech transfer program, government gets patent on research but licenses to drug or bio tech firms, protected under b4 --  but Public Citizen filed suit to get royalty amounts and sales figs recently.  Could work out how much each Co is making.  DOJ defending.  GIve out redacted material without formal denial -- requester normally takes it, doesn't appeal. 

QT:
ANy mediation used in FOIA negotiations?  Not used.
Judy -- there are 2 requesters totally unreasonable, data brokers who accept nothing less than total release (for profitable re-release.) 

Susan -- usually better deal with lawyers than with passionate researcher.  Insist on dealing only with one party -- either lawyer r requester, not both. 
 

ASAP '01 page 20 

Business roundtable
Unit pricing after MCI v GSA decision.
Tom Wheeler, Piper, Marbury.
Used previous case to show flip in agency's position; argued detailed info went below unit pricing to little components pricing, 90K pp of material.  Case precipitated by Qwest communications, competitor, reverse FOIA but chose not to intervene -- felt might be submitter next time.  DOJ did not appeal.  Judge Kessler decision is well reasoned, hard to overturn all Kessler's arguments. 

Melanie, DOJ.  First part of decision says these are not really unit pricing -- we would agree too detailed pricing.  Rest of decision is problem -- addresses unit pricing of FAR 

DOJ had problem that regulations ordered disclosure but only with carve outs (exemptions) if not confidentiality commercial info.  Vulnerable to MCI & Sprint argument separation of info for protection.

Tom Papson: agencies now giving notice again instead of just relesaing unit pricing.  MCi settles so many issues unclear for a long time. 
Mcdonnell-Douglas case did have actual pricing for satellite launch.  The 2 procurement statutes that authority the FAR; 

David Schuman, NASA, McD-Douglas counsel.  5 cases with this Co and successful only in one.  Case  did not give analysis of how to determine what to release -- Ct simply dismissed agency argument.  Reverse FOIA harder -- under FOIA, de novo review .  NASA was following comp harm test from previous cases -- otherwise release.  But DC Circuit took opposite tack.  No longer bias in favor of release.  Need case with good administrative record to try, unlike the MCI case. 

Ted Fredman, Navy Counsel: hill has been eroded but still giant fortress on top.  DOD going over to commercial products instead of militarized -- and so very competitive and contentious what is releaseable -- need to reevaluate entire area of public contract documents.

Mel: DOJ position is it is prudent to give notice, but not required universally.  Audience is saying they have many small contracts where pricing has routinely been made public.  Univeral predisclosure notification is a major burden. 

Formal End of Conference