and International Studies Programs.
American Society of Access Professionals.
Personal Research Notes of the
Annual Symposium, December 2001.
(Jeremy Lewis, Ph.D., Montgomery AL;
these are raw notes -- additions and corrections welcome; revised 26 Jan '02.)
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Wednesday December 12, 2001.
ASAP '01 page 17 Business Day
Harry: bothered me that Paperwork red Act is almost never enforced and became basis for this decision.
Melanie - creative lawyering, agency hadn't really argued Paperwork Red act itself.
Melanie, next case: BLM environmental approval, needed info on
pipeline project. Ct relied on above case to look for legal authority.
BLM regulations said some items required submitted but others may submit.
The "may" stuff was requested. Ct held voluntary -- despite agency
Tom -- but this makes bright line rule, easier to deal with than
judgment of competitive harm under National Parks. IF voluntary submission,
then does the Co normally not release the info to competitors and public.
Cortes v NASA case older, ceiling price rate was only requested, not written into contract.
Instead of saying whole scheme is required, now agency has to look at each piece of info and language calling for it.
Mallencrott was the case above.
Tom: submitters had done so poorly that law has really changed this year.
Melanie: Henny v FDA, regular FOIA case where info withheld under competitive harm, for medical device catheter. Device withdrawn from approval; but Ct agreed that comp harm could still happen because Cos often come back with device later.
Judicial Watch v Export Import Bank (frequent requester of DOJ) wanted export ins applications (rather than usual fare of hottest issue current) a required submission, detailed info on Co -- and harm to future comp position was found by Ct.
Very few cases under 3rd prong of national parks, agency protecting program -- here Export Import Bank could argue Cos would be put off if info could be disclosed.
Utah v Department Interior upheld competitive harm. Unusual for state to request -- and be denied info on leases between 2 private parties, Ct said would harm the parties negotiating position in future. 10th Circuit talked about a balancing test under b4 -- but last year DC Circuit said no need, laid this long argument to rest.
TOM McDonnell DOuglas 2 years ago Ct said Government was setting bar too high on competitive harm -- Dc circuit is saying comp harm test is not hat difficult -- if info would harm negotiating position, that's comp harm.
Mel: Animal welfare group alleged HHS contractor was maltreating animals for research. Ct rejected agency' withholding co's financials on conclusory showing -- need economic analysis to demo comp harm. The only rejection of comp harm in year and half.
Harry: UTah concern was indian tribes were negotiating nuke waste
on their reservation -- UT f
Tom: true not legislative history of b4 --congress threw it over wall
and left us to worry about "confidentiality" meaning.
Mel: Center for Auto Safety relied on in new case ??, agency said had only requested info -- but Ct said groups funded for animal research are required by regulation to supply info -- so request is really a demand. Ct relied on objective test under Center for Auto SAfety test.
Animals case is slip opinion, civil action no. September 28, 2001, Judge Hogan - may be n Dc district ct web site.
Mel: case where government lost sensitive sec info because had
ASAP '01 page 19 business II
b5: incorporates fed rules of civl procedures, leading case FOMC
v Merrill (1979) -- info collected to enable process of assessing contracts.
Works where contracting repeated annually.
"clearly releasable" info with note that it is not denial. [Like FDA minor deletions policy?]
negotiations, notifications, but document everything., because attorneys
get amnesia after negotiations by phone, and change position.
Joycelene Charry, Anteon Corporation,
Patricia Ann Ades Vanstory, of Hyman,
Phelps & McNamara.
Susan Cornell of NIH.
Susan -- usually better deal with lawyers than with passionate
researcher. Insist on dealing only with one party -- either lawyer
r requester, not both.
ASAP '01 page 20
Melanie, DOJ. First part of decision says these are not really unit pricing -- we would agree too detailed pricing. Rest of decision is problem -- addresses unit pricing of FAR
DOJ had problem that regulations ordered disclosure but only with carve outs (exemptions) if not confidentiality commercial info. Vulnerable to MCI & Sprint argument separation of info for protection.
Tom Papson: agencies now
giving notice again instead of just relesaing unit pricing. MCi settles
so many issues unclear for a long time.
David Schuman, NASA, McD-Douglas counsel. 5 cases with this Co and successful only in one. Case did not give analysis of how to determine what to release -- Ct simply dismissed agency argument. Reverse FOIA harder -- under FOIA, de novo review . NASA was following comp harm test from previous cases -- otherwise release. But DC Circuit took opposite tack. No longer bias in favor of release. Need case with good administrative record to try, unlike the MCI case.
Ted Fredman, Navy Counsel: hill has been eroded but still giant fortress on top. DOD going over to commercial products instead of militarized -- and so very competitive and contentious what is releaseable -- need to reevaluate entire area of public contract documents.
Mel: DOJ position is it is prudent to give notice, but not required universally. Audience is saying they have many small contracts where pricing has routinely been made public. Univeral predisclosure notification is a major burden.
Formal End of Conference
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