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More Exemptions from FoIA Recommended

Magazine article Editor & Publisher

More Exemptions from FoIA Recommended

Article excerpt

AMIDST CONCERNS THAT confidentiality provisions in the Alternative Dispute Resolution Act might be "trumped" by the Freedom of Information Act, the Administrative Conference of the United States has recommended exempting certain documents from disclosure.

Members of the Administrative Conference - an independent agency that reviews federal government administrative processes for effectiveness and efficiency and makes recommendations to Congress - voted in favor of the recommendation at a recent plenary meeting.

The ADRA provides federal agencies and their employees with methods other than legal action to settle disputes. In some cases, government employees act as neutrals, or mediators.

The Conference's Committee on Administration noted that in cases where the government is a neutral party, settlement communications may become agency records, whose confidentiality is governed by FoIA, rather than the ADRA regulations regarding disclosure.

"While some dispute resolution communications that become agency records - for example, because they come under the control of a government-employee neutral - may be exempt from mandatory disclosure under FoIA, the scope of exemptions and possible gaps in coverage create uncertainty as to the confidentiality of such records," the committee reported. "This uncertainty, in turn, has become a disincentive to the use of ADR."

The Conference agreed that the ADRA should be amended to include in the FoIA exemption documents created for cases in which the neutral is a government employee. In cases where the neutral is a private party, such documents already are exempt.

Among the items not exempt from disclosure are pre-existing documents, otherwise discoverable evidence, and the resolution of the ADR proceeding.

In addition, in certain cases, dispute communications can be disclosed. For example, if all parties agree; if it already has been made public or is required by statute to be public; or when a court determines disclosure is required to prevent manifest injustice, establish a violation of law, or prevent harm to the health and safety of the public.

The Conference also agreed to narrow the scope of the ADRA confidentiality clause by removing the phrase "any information concerning" in connection with dispute resolution communication.

The Reporters Committee for Freedom of the Press filed comments with the Commission calling for a rejection of the committee proposal. …

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