Disclosure To Third Parties Of Information Filed With Government Agencies: Discussion

MR. KRAMER: We will begin the last part of today's program on the FOI A with the discussion on the area of disclosure to third parties, and again our discussant will be Professor Marson. PROFESSOR CHARLES C. MARSON: I am going to take another crack at this horribly arcane area of the relationship of the b(3) exemption to the b(4) exemption, and the Criminal Statute,1 not because I think Herb Wachtell did not do a good job I think he was excellent but because the area is in such chaos. I want to leave with you the suggestion that if you are after protecting your client's secrets as a reverse FOIA plaintiff, there may be not one but two ways in which you can assert the protection of the criminal statute section 1905. Let me preface my comments by backing up and talking a little bit about the b(3) exemption. When Congress set about to draft the Freedom of Information Act in 1966, it addressed for the first time the problem of making universal federal government-wide rules about disclosure and confidentiality. That was revolutionary in the sense that it is the first time they tried to do it across the board, but it was not the first (or the tenth or the hundredth time) they had tried to do it in small or less than universal terms. In fact, all the way back to the first few Congresses there have been statutes on particular subject matters that have contained various provisions for disclosure and confidentiality. Thus, the statutes are encrusted with provisions about the confidentiality and disclosure of census information, of prison records, of VA records, of military records, of income tax returns, of EEO reports. There are all kinds of specific rules in specific statutes. The list is very, very long. As a matter of fact, I do not know anyone who has an accurate list of all those kinds of less than universal confidentiality and disclosure statutes. Congress had the choice to irresponsibly throw up their hands (which it sometimes uncharacteristically avoided in 1966); or to amend all those statutes to make them conform with the new one; or to do what it eventually did in the b(3) exemption: which was to incorporate these statutes, or some of them, by reference. The b(3) exemption provides that matter is exempt if it is specifically exempted by statute. Now since the Robertson amendment, there are some provisos on that.