I. PURPOSE

This directive informs employees with access to Agency records of their responsibilities and limitations on the release of information (both Government and private sector). Employees may be personally liable for violations.

II. (RESERVED)

III. REASON FOR ISSUANCE

This directive clarifies the release of Agency information and records. It also specifies who may release these items.

A. FSIS fosters the principles of open government and takes seriously its obligation to provide the public with accurate information, including records, which shed light on its operations and decision-making processes. However, FSIS preserves the confidentiality of sensitive, personal, commercial, or government information.

B. This directive informs employees with access to records owned by the Federal Government or by private sector businesses of their responsibilities and limitations on the release of information. Employees may be personally liable for violations.

IV. REFERENCES

• FSIS Directive 1240.1, Communicating with External Entities
• FSIS Directive 1450.1, Freedom of Information and Privacy Acts
• FSIS Directive 4735.3, Employee Responsibilities and Conduct
• FSIS Directive 4735.6, Safeguarding Confidential Industry Information

V. ABBREVIATIONS AND FORMS

The following will appear in their shortened form in this directive:

• CPAO Congressional and Public Affairs Office
• EEO Equal Employment Opportunity
• EMS Executive Management Staff
• FOIA Freedom of Information Act
• HACCP Hazard Analysis and Critical Control Point
• SSOP’s Sanitation Standard Operating Procedures

VI. BACKGROUND

A. FOIA provides any person access to Federal records, except those records protected from disclosure. The Agency balances the desire for an open government with the obligation to preserve the confidentiality of sensitive, personal, commercial, or governmental information.

B. This directive contains procedures that identify records and information that may be released. These policies and procedures protect the Agency and its employees from personal liability for wrongfully disclosing privileged or confidential information. This is especially important because of the access FSIS employees have to company records and facilities. FSIS inplant personnel have access on a daily basis and are required to check company records as part of their inspection responsibilities. However, this access does not include the authority to copy plant records and provide them to others except as outlined in the laws, policies and procedures.

VII. RELEASE OF RECORDS AND INFORMATION

A. General.

1. Employees may release copies of publicly available Agency materials such as brochures, backgrounders, and key facts; materials published on the FSIS website; materials published in the Federal Register or Agency directives; and materials available at public meetings.
2. Agency records, of any medium, may not be released to organizations outside the Agency (including other government agencies), to the public, or to external groups without proper review and authorization. NOTE: Much of the information accessible to FSIS employees on Outlook or on shared electronic files is pre-decisional and is not intended for public distribution.
3. Employees responding to food safety issues, emergencies, and investigations, may share necessary information with public health agencies, enforcement agencies, or any involved public officials provided that procedures and approvals on the release of records are followed.

B. Media Requests. Refer media representatives to CPAO. CPAO consults with the EMS (the Agency FOIA office) and Agency staff to determine if a formal FOIA request is necessary. The address, and telephone and fax numbers are:

• USDA FSIS CPAO
• ROOM 1175 SOUTH BUILDING
• WASHINGTON DC 20250
• Telephone Number: (202) 720-3897
• FAX Number: (202) 720-5704

C. Non-Media Requests.

1. Refer telephone or written inquiries requesting Agency records not available to the public to EMS. (See exception in subparagraph 2.) The address, and telephone and fax numbers are:

• USDA FSIS EMS
• ROOM 1140 SOUTH BUILDING
• WASHINGTON DC 20250
• Telephone Number: (202) 720-2109
• FAX Number: (202) 690-3023

2. Authorized offices may handle information requests of a specified type outside of the FOIA process. (FSIS Directive 1450.1 contains specific procedures governing the FOIA process in FSIS.) EXAMPLES: Refer telephone calls from EEO investigators, administrative law judges, and others requesting records or information concerning an EEO complaint to the Civil Rights Division. The address, and telephone and fax numbers are:

• USDA FSIS CIVIL RIGHTS DIVISION
• MAILDROP 5261
• 5601 SUNNYSIDE AVENUE BELTSVILLE MD 20705-5261
• Telephone Number: 1 (800) 269-6912 or (301) 504-7756
• FAX Number: (301) 504-7746

D. Authority to Release Records Outside of the FOIA Process. Obtain authorization from the Director, EMS, and the appropriate deputy administrator or staff director. (See FSIS Directive 1450.1.)

VIII. GUIDANCE

A. Agency Records.

1. Availability. Copies of Agency records are available through FOIA when the records do not:

• a. Invade personal privacy.
• b. Violate statutes.
• c. Cause competitive harm to businesses.
• d. Compromise the integrity of governmental decision-making processes or law enforcement proceedings.

2. Protection Procedures. Formal procedures and processes exist to guard against improper or harmful release of information and to protect employees from personal liability for unlawful disclosure. (See FSIS Directive 1450.1.)

3. Material Exempt from Disclosure. FOIA requirements have safeguards against improper or harmful release of information. FOIA officials review materials for possible exemption when the material relates solely to the internal administrative and personnel matters of the Agency. EXAMPLES:

• a. Crediting plans showing how candidates are rated for promotion. The plans are considered a part of the test or examination materials and are exempt from disclosure. Release of the information would compromise the objectivity or fairness of the testing or examination process.
• b. Manuals containing criteria to identify businesses for review.
• c. Personnel, medical, or similar files that may invade personal privacy. The Privacy Act protects systems of records that relate to individuals.

(1) Employees are entitled to most records about themselves.

(2) Employees must give permission to release such records to others.

(3) Disclosure to anyone other than the named employee may constitute an invasion of personal privacy. Unauthorized release of such records may cause an employee to be personally liable for violations of the Privacy Act.

• d. Investigation records compiled for law enforcement purposes when release of these records may:

(1) Interfere with enforcement proceedings.

(2) Deprive a person of the right to a fair trial.

(3) Constitute an unwarranted invasion of personal privacy.

(4) Disclose the identity of a confidential source.

(5) Disclose investigative techniques and procedures, or endanger the life of law enforcement personnel. NOTE: Records that are not directly a part of an investigation file may be withheld when the release could lead the public (or the target of an investigation) to determine the focus of an investigation. EXAMPLE: Process deficiency records, noncompliance records, and review and compliance records are sometimes withheld during an investigation if the investigation relates to conditions of the establishment as reflected on these records.

• e. Inter- or intra-agency memoranda, letters, or other records that are pre-decisional or a part of a deliberative process. Internal communications between subordinates and superiors may be protected from release when release of such information may interfere with the Agency’s decision-making process. The impact of releasing such information before a final decision is made may confuse the public, and may hinder the rulemaking process.

B. Non-Agency Records. FSIS inspection personnel review company records on a daily basis as part of their inspection responsibilities. Records, such as the HACCP plans, SSOP’s, E. coli testing results, and other company records are company-owned records. Company-owned records are not a part of Agency files. FSIS personnel have no right to copy these records unless they receive specific authorization from the circuit supervisor or higher level official. The public has no right to company-owned records unless the company chooses to release such records.

1. Safeguard company records when they become part of Agency files (i.e., copies are needed for an investigation or enforcement action relating to the HACCP plans or SSOP’s). Company-owned records that become part of an Agency file are protected from release under FOIA on the basis of their commercial value and proprietary nature, and on the basis of an open investigation or enforcement notice. Forward questions on the release of these records to the FOIA office.
2. Trade secrets and commercial or financial information are privileged or confidential information. Unlawful disclosure of commercial or financial information could cause competitive harm to the company that owns the information. The protection of this information is not discretionary and individuals can be held personally liable for unlawful release. Examples include:

• a. Product formulations.
• b. HACCP plans and SSOP’s.
• c. Production data and line speeds.
• d. Financial information.

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