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Script: Freedom of Information Act - Part II |
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Intro:
Welcome to USDA’s Food Safety and Inspection Service podcast. Each episode
will bring you cutting edge news and information about how FSIS is working to
ensure public health protection through food safety. While we’re on the job,
you can rest assured that your meat, poultry, and processed egg products are
safe, wholesome, properly labeled, and packaged correctly. So turn up your volume
and listen in.
Host:
Hello and welcome. I’m Alexandra Tarrant from FSIS. Joining me again is Jeff
Ovall to continue our discussion on the Freedom of Information Act – or FOIA.
Jeff has more than 13 years experience in this field. He is currently the Supervisory
FOIA Specialist for the FSIS Freedom of Information Act Service Center.
As promised last week, today we’re going to discuss the exemptions that the
Agency most frequently cites when withholding records to protect the commercial
or financial business information of plants under FSIS jurisdiction.
Jeff, thanks so much again for joining us.
Guest:
Glad to be back!
Host:
Okay, so last time you said that there were nine exemptions provided for in
the FOIA.
The records or portions of records that fall under these exemptions are protected
by law and don’t have to be released to the public. Have I got that right?
Guest:
Yes, you have, with one important caveat: Under the FOIA, we are required to
review records using a presumption in favor of disclosure.
Therefore, while a specific record or portion of record may fall under one of
the nine FOIA exemptions, agencies often make discretionary releases depending
on the nature of the documents in question.
The two exemptions most commonly cited by FSIS when withholding records or portions
of records are exemptions 4 and 6.
Host:
Could you go into a little more detail on these exemptions for us?
Guest:
Sure, I’d be happy too. As you may recall, exemption 4 deals with trade secrets
and other confidential business information.
This relates directly to the type of information that plant owners and operators
are most concerned about, such as Hazard Analysis and Critical Control Point
– HACCP plans, and Sanitation Standard Operating Procedures – SSOP records.
Host:
So those types of records are covered under exemption 4 from release?
Guest:
Generally that is correct. But remember, each FOIA request must be evaluated
on a case by case basis depending on the facts.
However, exemption 4 generally protects records that contain commercial or financial
information that was obtained from a person and which is privileged or confidential
from being released.
In this case, person is defined as an individual, a partnership, or a corporation,
which of course includes the plants under FSIS jurisdiction.
Court decisions have held that a record qualifies for withholding if the competitive
position of the person who submitted the information would likely be substantially
harmed by government disclosure.
Host:
Could you give us some examples of other items that can qualify as confidential
business information?
Guest:
Sure. Detailed information on a company's marketing plans, profits, or costs
can qualify as confidential business information.
Exemption 4 also allows information to be withheld if disclosure would be likely
to make it difficult for the government to obtain the same type of information
in the future.
Host:
Very interesting. And what is exemption 6?
Guest:
Exemption 6 deals with information involving matters of personal privacy. This
means that FSIS would not release records or information that could be considered
a clearly unwarranted invasion of personal privacy.
For example, we would not give out medical records or Social Security numbers,
or FSIS personnel records such as performance appraisals.
Host:
What else does the Agency do to protect the commercial or financial information
that it might collect from a plant?
Guest:
Well, the FOIA has a “Submitter Notice” process, which FSIS often refers to
as a “pre-release review.”
Host:
What’s that?
Guest:
While completing a review of records, the FOIA Specialist may find commercial
information which we have not already determined to be confidential commercial
information that should be withheld.
In that case, the Agency will provide a copy of the proposed record release
for the business to review. The business then has an opportunity to demonstrate
to FSIS that the information sought under a FOIA request qualifies to be withheld.
Host:
What if the Agency disagrees and decides the records must be released?
Guest:
Well, if that happens, a submitter may take legal action to block disclosure
under the FOIA.
Such actions may include lawsuits. These are generally referred to as “reverse”
FOIA lawsuits because the FOIA is being used in an attempt to prevent rather
than to require the disclosure of information.
Host:
Is there anything else you want to add, Jeff?
Guest:
Yes, I’d like to mention that the Agency posts its FOIA logs on the FSIS Internet
Electronic Reading Room every month. If businesses wish, they may review these
FOIA logs to see if any requests came in concerning their company.
FSIS often gets requests from plant owners who have reviewed the FOIA logs and
noticed that we received a FOIA request for records associated with their plant.
The plant owner’s request to review responsive records submitted by the plant
prior to their release. FSIS treats these requests similarly to the “submitter
notice” process mentioned earlier.
Host:
How can plant owners and operators get more information on FOIA and FOIA requests?
Guest:
Well, they can call the FSIS Freedom of Information Act Service Center at (202)
690-3882. They can also find more information, including a link to the FSIS
electronic reading room, on the FSIS Web site, at
www.fsis.usda.gov.
Host:
Well that is all very interesting and helpful. Thanks for coming, Jeff.
Guest:
I’ve enjoyed being here. Thank you!
Host:
And to our listeners, be sure to stay tuned to the FSIS Web site for all our
future podcasts.
Outro:
Well, that’s all for this episode. We’d like your feedback on our podcast.
Or if you have ideas for future podcasts, send us an e-mail at
podcast@fsis.usda.gov. To learn more about food safety, try our web site
at www.fsis.usda.gov. Thanks
for tuning in.
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Last Modified: March 24, 2009 |
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