cafeteria regulations, as well as certain manuals that relate to the internal management and organization of particular agencies. But staff manuals instructing inspectors or agents how to perform their jobs are not exempt.

(3) Specifically exempted from disclosure by statute.

This exempts documents and information that are exempt from disclosure by other laws. The matters principally affected are income tax returns and applications to the Social Security Administration for

benefits.

(4) Trade secrets and commercial or financial information
obtained from a person and privileged or confidential.

Busi

Under this section, agencies may withhold information only if it is either a trade secret or commercial or financial information. ness information not in one of these categories is disclosable. This exemption applies only to information submitted to the government; government prepared documents can never be exempt under this section. The courts have said that information can be withheld under this exemption only if the disclosure would constitute a substantial competitive injury to the commercial interests of the person who submitted the information to the government. A general demonstration of commercial interest is not sufficient grounds for non-disclosure.

(5) Inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other
than an agency in litigation with an agency.

This exemption is the one most widely used by the government.

In general, the dividing line between what may and may not be revealed

78

under this exemption is the line between opinion and fact. Opinions would include, for example, memos from a staff member to supervisors recommending that a policy be formulated. But factual reports or analyses of facts are not exempt even if they are part of policy recommendations. Thus, a judge might not consider certain reports of inspectors or field personnel exempt. The material might contain opinions, but if it can be determined that it is more factual analysis than policy recommendation, it must be made available.

(6) Personnel and medical files and similar files, the
disclosure of which would constitute a clearly un-
warranted invasion of personal privacy.

the one case, in other

This exemption is self-explanatory. It should be pointed out, however, that this is the only exemption that encourages a balancing of interests between disclosure and non-disclosure words, in which the reason behind your request may be material. If a request involves this exemption, a brief explanation of why the information is wanted should be made so that it can be determined whether the disclosure of information would be a clearly unwarranted invasion of personal privacy.

(7) Investigatory records compiled for law enforcement
purposes, but only to the extent that the production
of such records would (A) interfere with enforcement
proceedings; (B) deprive a person of a right to a
fair trial or an impartial adjudication; (C) consti-
tute an unwarranted invasion of personal privacy;
(D) disclose the identity of a confidential source
and, in the case of a record compiled by a criminal
Law enforcement authority, in the course of a crimi-
nal investigation, or by an agency conducting a law-
ful national security intelligence investigation,
confidential information furnished only by the con-
fidential source; (E) disclose investigative tech-
niques and procedures; or (F) endanger the life or
physical safety of law enforcement personnel.

77

This exemption is also over-used since a regulatory agency can claim that almost any information in its possession is an "investiatory file." However, in most cases, only where a law enforcement proceeding is presently active or contemplated can the exemption be used. While documents like annual surveys or inspections may be investigatory, they are not compiled for law enforcement purposes, and, therefore, are not exempt under this section. The section requires an agency, upon request, to examine each investigatory file in its possession to determine if the release of any of the records contained in the file would come under one of the six reasons specified in the exemption. Only records or parts of records exempt may be withheld. The non-exempt portions must be released.

(8) Contained in or related to examination, operating,
or condition reports prepared by, on behalf of, or
for the use of any agency responsible for the regu-
lation or supervision of financial institutions;

(9) Geological and geophysical information and data
(including maps) concerning wells.

These last two exemptions are widely known as the two special interest exemptions. Exemption (8) refers to the reports prepared by various federal bank examining agencies about institutions they regulate. Exemption 9 protects oil well information, especially maps, that oil companies in certain situations must file with the Department of the Interior. They are actually fail-safe exemptions in the sense that the matters they cover are already exempted under the trade secrets exemption (exemption 4). They are noteworthy more as a reflection of the influence or persuasiveness of two important Washington lobbies than as barriers to the ordinary citizen seeking information from the federal government.

78

Although these nine exemptions may seem broad and all encompassing, the courts have declared that they are to be interpreted narrowly. Indeed, plaintiffs have been very successful, having won 60 to 70% of all the cases that have been brought against federal agencies. The new amendments make the Freedom of Information Act even easier for citizens and their attorneys to use. Justice Brandeis once said, "Sunshine is the best disinfectant." And this will be true for the Federal government if, and only if, concerned citizens and members of the press make use of their rights.

THE FEDERAL ADVISORY COMMITTEE ACT

ཌ

79

There is no general federal "sunshine" or open meetings law, although U.S. Senators Lawton Chiles and Richard Stone of Florida are planning to introduce an open meetings bill in the 94th Congress.

There is, however, a law enacted in 1972, the Federal Advisory Committee Act, Public Law 92-463, designed to open federal advisory committees to public participation. Advisory committees are those groups, composed primarily or exclusively of private citizens, formed or used by federal agencies to obtain advice or recommendations. Several thousand

of these committees exist. Many have had a substantial impact on the way federal agencies develop and execute policy.

Detailed information about the law can be obtained from its principal sponsors, Senator Lee Metcalf (D-Montana) or Senator Charles Percy (R-Illinois) or from the Senate Committee on Government Operations. eir mailing addresses are the same: Senate Office Building, Washington, D.C. 20510. For additional information, contact the Freedom of Information Clearinghouse, P.O. Box 19367, Washington, D.C. 20036.

Under the law most meetings of federal advisory committees must be open, certain records must be kept and made available to the public, and there must be advance notice of meetings. Meetings must be announced in the Federal Register, the daily gazette of proposed and final actions of federal agencies. It is available in selected libraries, especially law libraries, or by subscription from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 ($45.00 per year).