Monday, July 28, 2008

Denial of Freedom of Information Act Request for Antitrust Amnesty Agreements Vacated

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The Department of Justice could be required to disclose redacted versions of amnesty agreements entered into by the Antitrust Division since 1993 pursuant to a Freedom of Information Act (FOIA) request, the U.S. Court of Appeals in Washington, D.C. has ruled. An order denying access to the amnesty agreements (2007-1 CCH Trade Cases ¶75,659) was vacated, and the matter was remanded to the district court "to establish the feasibility of the release of redacted versions of the amnesty agreements."

Parcel tanker shipping company Stolt-Nielsen made a series of FOIA requests seeking various records pertaining to a grand jury investigation. The company sought approximately 100 amnesty agreements. Stolt-Nielsen said that it would accept the agreements "with the names and identities of the relevant companies or individuals redacted." When the government produced some documents but refused to release the amnesty agreements, Stolt-Nielsen filed suit under FOIA.

The district court sided with the government on its refusal to turn over the amnesty agreements. The court held that the government properly withheld the documents based on exemptions to FOIA disclosure. In addition, the district court concluded that, because no portions of the amnesty agreements were reasonably segregable, the release of redacted versions was not permissible.

FOIA Exemptions

Under FOIA, federal government agencies are required to disclose information to a requestor, unless an exemption to the disclosure requirement applies. FOIA Exemptions 7(A) and 7(D) could be applicable to the amnesty agreements, the appellate court ruled. Under subsection (b)(7) of FOIA, the government is permitted to withhold records or information compiled for law enforcement purposes, if the production of such records or information could reasonably be expected to interfere with enforcement proceedings (Exemption 7(A)) or to disclose the identity of a confidential source (Exemption 7(D)).

Release of Reasonably Segragable Information

Even if the documents were exempt from disclosure, "reasonably segregable" portions of the documents should have been provided after the deletion of the exempt portions, according to the appellate court. The government did not sufficiently justify withholding the agreements in the face of the redaction of identifying information.

The appellate court suggested that names and dates could be redacted from the documents if necessary. The government had argued that the dates of various documents could allow persons with expert knowledge of antitrust proceedings to determine what industries were under investigation. Also rejected was the government’s argument that disclosure was not necessary because the redacted documents without names and dates would provide no meaningful information. "FOIA mandate[d] disclosure of information, not solely disclosure of helpful information," the court stated.

The July 25, 2008, decision in Stolt-Nielsen Transportation Group,
Ltd. v. United States
, No. 07-5191, will appear CCH Trade Cases.

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