FOIA Considerations in Furnishing Information and Documents to Federal Agencies

The Federal Bureau of Investigation ("FBI") has recently opened numerous avenues of inquiry with respect to terrorist activities. Among other things, the FBI is seeking information from manufacturing companies relating to products that could be used by terrorists. All corporations should cooperate fully with the FBI in these inquiries. However, companies should be cognizant of the fact that the information furnished may be confidential and may eventually be secured from the government by third parties and/or competitors pursuant to a Freedom of Information Act ("FOIA") request. The following are a few points to consider in furnishing information and/or documents to the FBI. As always, if you have any questions relating to these matters, please contact your attorney.

1. Assume that your company has agreed to allow an employee to be interviewed by the FBI. In the course of that interview, the employee provides confidential and proprietary information of and belonging to the company. To protect that information from being disclosed to third parties pursuant to an FOIA request, the employee should advise the FBI agent conducting the interview that (1) the information furnished has been designated by the company as confidential commercial information and (2) the information is being provided to assist a law enforcement investigation. The employee should then request that the FBI give FOIA confidential treatment to the information provided on the basis that (1) the information is being given to assist the FBI in a law enforcement investigation, and that (2) the disclosure to third parties of the information could reasonably be expected to cause substantial competitive harm to the corporation.
2. After the interview is completed, a letter should be sent to the FBI's FOIA officer in Washington, D.C. stating, for example, that John Smith, an employee of the XYZ Corporation was interviewed on a particular date by Special Agent Fred Jones of the FBI; that Mr. Smith provided confidential commercial information to Special Agent Jones; that such information is protected from disclosure by the provisions of the FOIA because (1) the information was furnished to the FBI to assist in a law enforcement investigation and (2) such disclosure could reasonably be expected to cause substantial competitive harm to the company.
3. If documents are requested, the best way to insure confidential treatment is to request that the company be served with a grand jury subpoena directing the production of the documents. Each page orsegregable portion of each page or group of pages should be marked with the words "Confidential Treatment Requested by XYZ Corporation" and an identifying number in code, such as a Bates number. Rule 6(e) of the Federal Rules of Criminal Procedure will govern future disclosure, if any.
4. In the event that no grand jury subpoena is sought by or served upon the company, and the company is willing to voluntarily produce the documents requested, the documents should be marked in the same way as the documents produced to the grand jury. That is, each page or segregable portion of each page or group of pages should be marked with the words "Confidential Treatment Requested by XYZ Corporation", and an identifying number in code, such as a Bates number. However, after the documents are produced, a letter should be sent to the local office of the FBI, the FOIA Officer of the FBI in Washington, D.C. and the FOIA Officer at the Department of Justice. Each letter should state that documents were produced by the corporation pursuant to a request by Special Agent Fred Jones and that the documents produced bear Bates numbers through . The letter should request that confidential treatment be given to these documents on the grounds that (1) they were produced pursuant to a request by the FBI; (2) they are intended to aid the government in a law enforcement investigation; and (3) disclosure could reasonably be expected to cause substantial competitive harm to XYZ Corporation. The letter should set forth the name and address of the person who should be contacted in the event that a third party seeks to obtain any document produced via an FOIA request to the Department of Justice or the FBI.
5. A confidential treatment request usually expires after 10 years from the date made. If you wish to renew the request before the expiration date, you must send another letter to the appropriate FOIA office setting forth the reasons for continued confidential treatment. That request will also expire in ten years unless another renewal request is made.

Arthur Holtzman is a partner in Pedersen & Houpt's Litigation and Dispute Resolution Practice Group.  He can be reached at 312 261 2111.

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