Disclosure To Third Parties Of Information Filed With Government Agencies: The Agencies' Perspective

MR. KRAMER: Our next topic will be the agencies' perspective on disclosure to third parties. I think our first speaker on this topic is particularly qualified to express the agencies' perspective. He believes, and I certainly have no reason to disagree, that he hold the record for being the longest fulltime employee in the Office of Legal Counsel of the Department of Justice engaged with FOI A matters, and he is now Chairman of the Freedom of Information Committee of the Department of Justice. Mr. Robert Saloschin. ROBERT L. SALOSCHIN: An outline which was prepared too late for the program book has been distributed at the last minute. Before turning to that outline, to which I am not going to adhere too strictly, I would like to make a few comments on Mr. Wachtell's excellent address, to which I listened with great interest and took some notes. But even before that, I would like to say that I am addressing my remarks largely to people who, or whose clients, are, I take it, part of a wave of concern, or even almost panic, that has arisen in the corporate and legal world in the last year or two on this subject of the protection of business information in federal agencies' records. I hope that by the time I am done, you will agree that although I may have given you some bad news, I have also given you a little bit of good news. Herb Wachtell made a reference to discretion, and to the Attorney General's May 5 letter to the heads of agencies encouraging them to release exempt records. The encouragement of discretionary releases in that letter is not aimed at the area of business confidentiality, but is aimed primarly at internal government deliberations under exemption 5 of the Freedom of Information Act, although not exclusively confined to that. As far as the area of business confidentiality is concerned, the criterion in the order which has attracted the most attention is the criterion. Generally speaking, under exemption 4 (which is the exemption with which we are primarily concerned in the business confidentiality area) you do not have the exemption unless, as the exemption has been interpreted, you have a sufficient prospect of actual harm to legitimate public or particular private interests. So, broadly