Do other laws establish exemptions to the Freedom of Information Act?

In response to a recent column about the Freedom of Information Act (FOIA) a reader suggested that the fiscal 1997 National Defense Authorization Act had established an important exemption to FOIA for certain vendor-proposal documents. Another reader has asked if a vendor could protect documents from release pursuant to FOIA by marking them as copyrighted. Together these questions raise the issue: When might another law provide an exemption to FOIA?

Under FOIA Exemption 3 documents are considered to be exempt from disclosure if another statute:

* "Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue."

* "Establishes particular criteria for withholding or refers to particular types of matters to be withheld."In the fiscal 1997 National Defense Authorization Act [Pub. L. 104-201 110 Stat. 2609 2660 Paragraph 821(b)] Congress stated that proposal documents in the possession or control of an executive agency may not be made available under FOIA unless the documents are mentioned or referenced in a contract between an agency and the contractor that submitted the proposal. The statute defines a proposal for this purpose as "including a technical management or cost proposal submitted by a contractor in response to the requirements of a solicitation for a competitive proposal." This provision is paraphrased in the current version of Federal Acquisition Regulation 24.202.

Clearly this statute fits within FOIA Exemption 3. However equally clearly the statute has almost no relevance.

Of particular importance the statute's exemption does not apply to any information incorporated into the resulting contract. Thus for example it applies to pricing information which is always incorporated into the contract. Similarly it does not apply to any other information incorporated directly or by reference into the final contract. In this regard it is important to note that the successful offeror's technical proposal often is incorporated by reference in negotiated procurements.

Indeed anytime an agency conducts any type of cost/technical trade-off analysis it is assessing the extent to which each offeror exceeds some minimal threshold and whether those perceived advantages are worth their proposed cost.

The only way that those attributes become enforceable is when the government incorporates the offeror's proposal into the final contract.

Little Impact on Offerors

Thus the new exemption provided by the fiscal 1997 National Defense Authorization Act may have little relevance to the successful offeror in most procurements. Almost all FOIA requests for proposal documents ask for the successful offeror's documents. In fact all the procurement cases I discussed in my Sept. 22 column involved requests for the successful offeror's contract. Obviously the new statute will have little impact.

On a related point another reader asked if a vendor could protect documents from release pursuant to FOIA by marking them as copyrighted. The reader asked the question because a services company had begun to mark all its proposal information as copyrighted and an agency that had awarded the company a contract was not sure if the copyright would protect documents under FOIA.

The question of whether the Copyright Act is considered a FOIA Exemption 3 statute has been litigated and the answer is negative. In Weisberg v. U.S. Department of Justice [631 F.2d 824 (D.C. Cir. 1980)] the U.S. Court of Appeals held that "the mere existence of copyright by itself does not automatically render FOIA inapplicable to materials that are clearly agency record." According to St. Paul's Benevolent Educational and Missionary Institute [506 F. Supp. 822 (N.D.Ga. 1980)] "FOIA does not provide any specific exemption for copyright materials nor does the Copyright Act meet the exemption standards" under Exemption 3.

Other statutes may provide specific exemptions from FOIA under narrow conditions. Such statutes are uncommon. However they may be important in some cases.

-- Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C. Readers are encouraged to submit topics by e-mail to carl@carl.com.