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    VII. Appendix A – FOIA Exemption 3 and the TREAD Act Disclosure Provision

    Exemption 3 of the Freedom of Information Act prevents the disclosure of information provided to the government when Congress evidences a clear intent through a statutory scheme that prohibits disclosure. The RMA argued that Congress referred specifically to all of the information submitted under the regulations issued to implement Section 30166(m)(1), and therefore all such information must be withheld from disclosure under Exemption 3.

    Exemption 3 is designed to incorporate into the FOIA exemptions other statutes that, on their face, clearly exempt information from FOIA’s disclosure requirements. See, e.g., Reporters Comm'n for Freedom of the Press v. Department of Justice, 816 F.2d 730, 735 (D.C. Cir.), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev’d on other grounds, 489 U.S. 749 (1989)(providing that "a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure"), and Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979)(stating that "[o]nly explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption."). An Exemption 3 statute must either make clear that the agency has no discretion on whether to disclose the information or must clearly circumscribe the determination by setting forth particular criteria or specifically identifying the information to be withheld from disclosure. The RMA claims that the TREAD Act’s disclosure provision does the latter.

    We disagree. Had Section 30166(m)(4)(C) stated only that "none of the information collected pursuant to the final rule promulgated under paragraph (1) shall be disclosed," then the provision would have provided unambiguous direction to the agency and clearly identified the information to be withheld. But that is not what the disclosure provision states. Instead, the provision makes reference to Section 30167(b) and states that "[n]one of the information collected pursuant to the final rule promulgated under paragraph (1) shall be disclosed pursuant to section 30167(b) unless the Secretary determines the disclosure of such information will assist in carrying out sections 30117(b) and 30118 through 30121."  By making reference to preexisting Section 30167(b), the provision suggests that Congress intended the Secretary to determine initially which of the early warning reporting information is entitled to confidential treatment as confidential business information, and, if so and only then, would consider whether disclosure was nonetheless necessary for the agency to fulfill its responsibilities.

    The colloquy between Congressmen Markey and Tauzin during the TREAD Act hearings suggests that Congress intended the agency to consider the confidentiality of the early warning reporting information by applying the same legal standards otherwise applicable to information the agency requires to be submitted:

    Mr. MARKEY:  First, under the section entitled "early warning requirements," we provide for the reporting of new information to NHTSA generally at an earlier stage than the stage when an actual recall takes place based on the finding of a defect. To protect the confidentiality of this new early stage information, the bill provides in Section 2(b) in the subsection titled "disclosure" that such information shall be treated as confidential unless the Secretary makes a finding that its disclosure would assist in ensuring public safety, but with respect to information that NHTSA currently requires be disclosed to the public it is my understanding of the committee’s intention that we not provide manufacturers with the ability to hide from public disclosure information which under current law must be disclosed. Would the gentleman from Louisiana (Mr. Tauzin) agree that this special disclosure provision for new early stage information is not intended to protect from disclosure [information] that is currently disclosed under existing law such as information about actual defects or recalls?

    *          *          *

    Mr. TAUZIN:  Mr. Speaker, the gentleman is correct. [22]

    The RMA and other commenters, however, pointed to other statutory schemes in which Congress’ intent to ensure the confidentiality of submitted information was made clear. The AIAM, citing the practices of several State and Federal agencies, noted that these "regulatory agencies receive product quality-related information from regulated parties for compliance evaluation purposes" and have "consistently follow[ed] policies of withholding such information from public disclosure."  AIAM admitted, however, that the statutory provisions for these agencies "differ from those affecting NHTSA" and "do not . . . provide controlling legal authority for NHTSA's handling of the early warning report information." 

    For example, the Supreme Court has held that the statute governing the activities of the Consumer Product Safety Commission (CPSC) contains a provision constituting an Exemption 3 statute. CPSC v. GTE Sylvania, 447 U.S. 102 (1980). The Court noted that Section 6(b) of the Consumer Product Safety Act, 15 U.S.C. § 2055, sets forth specific procedures that CPSC must follow prior to the release of information to the public. Id. at 105. Under that provision, the CPSC must ensure the accuracy of the information it plans to release, notify the manufacturer and provide it with a summary of the information that the CPSC intends to release if the summary would enable one to readily ascertain the identity of that manufacturer. Id.  The manufacturer is also afforded an opportunity to comment on the CPSC's summary.  Id.

    Similarly, some of the statutory provisions regarding the disclosure of information the Federal Aviation Administration (FAA) receives involve very specific instances or types of information. For example, in Public Citizen v. FAA, 988 F.2d 186 (D.C. Cir. 1993), the court determined that information concerning air transportation security could be withheld under the agency's Air Security Improvement Act of 1990. Under the provisions of that Act, the court determined that "Congress's intent was to broaden the FAA's power to withhold sensitive information" held by the agency. Id. at 195 (emphasis in original).

    Indeed, the extent of protection afforded to submitters of information under federal programs varies. [23]   For example, while the Food and Drug Administration (FDA) must adhere to a statutory scheme that governs the public disclosure of information (21 U.S.C. § 360j), the D.C. Circuit noted that a lower court's reading of the FDA statute as an Exemption 3 provision was "contradicted by the language of Section 360j(h), its legislative history, and its interrelation with other provisions of the Medical Device Amendments."  Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1284 (D.C. Cir. 1983). Under the FDA's statutory provisions, the agency must release a summary of information relating to the safety of medical devices. The court noted that the statutory provision's "legislative history repudiates the proposition that Section 360j(h) specifically prohibits the disclosure of health and safety data that do not qualify for protection under Exemption 4 to the FOIA or [Trade Secrets Act]."  Id. at 1285.

    The Tenth Circuit Court of Appeals considered whether another provision of the FDA statute, 21 U.S.C. § 331(j), qualifies as an Exemption 3 statute. See Anderson v. HHS, 907 F.2d 936, 950 (D.C. Cir. 1990). Section 331(j) provides that any information acquired under the FDA's various information-collection statutes must not be disclosed if the information "concern[s] any method or process which as a trade secret is entitled to protection."  Id. While the court indicated that Section 331(j) qualified as an Exemption 3 statute, it held that the scope of the statute is not broader than Exemption 4 and "cannot provide any independent justification for nondisclosure." Id.

    The colloquy between Congressmen Markey and Tauzin suggests no intent to create a statutory scheme like that governing the disclosure of information from the CPSC or other provisions prohibiting disclosure. Rather, the limited legislative history of Section 30166(m)(4)(C), and the reference to Section 30167(b) in that provision, shows that Congress intended the agency to determine the confidentiality of the early warning reporting information in accordance with its long standing practice of considering whether the data constitutes confidential business information. Congress is presumed to be aware of agency practice when promulgating statutes and, therefore, is presumed to have been aware of NHTSA’s practice  of analyzing confidentiality claims pursuant to Exemption 4 of the FOIA. See e.g., U.S. v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002) ("Congress is presumed to preserve, not abrogate, the background understandings against which it legislates"). [24]



    [22]   146 Cong. Rec. H9629 (daily ed. Oct. 10, 2000) (emphasis added).

    [23]   We note that the U.S. District Court for the District of Columbia has rejected the notion that the Vehicle Safety Act generally provides Exemption 3 protection for information the agency requires be submitted. Ditlow v. Volpe, 362 F. Supp. 1321, 1324 (D.D.C. 1973) (specifically rejecting application of Exemption 3 to the Motor Vehicle Safety Act), rev'd on other grounds, Ditlow v. Brinegar, 494 F.2d 1073 (D.C. Cir. 1974).

    [24]   The Alliance suggests that Exemption 7 may also be applicable. Exemption 7 protects records from disclosure relating to law enforcement purposes when disclosure could reasonably be expected to interfere with the enforcement proceedings. NHTSA has historically not invoked Exemption 7 to withhold information received from manufacturers during the course of defect investigations. See CNA v. Donovan, 830 F.2d 1132, 1139 (D.C. Cir. 1987).

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