Saturday, April 05, 2003

Fun with FOIA

Back in January, I filed a fairly simple Freedom of Information Act (FOIA) request with the Federal Trade Commission. I asked the FTC to provide the overall budget allocation for the Bureau of Competition, the FTC’s antitrust enforcement unit, and the general amounts spent on seven cases prosecuted by the Bureau last year Last week, I got my reply...well, a partial reply anyway.

The FTC revealed that the Bureau of Competition received $31,704,634 during the last fiscal year, which ended October 30, 2002. As for the specific case expenditures, the FTC would only provide data for five of the seven cases I asked about. Two cases, involving the National Academy of Arbitrators and MSC.Software Corporation, had the information blacked out, or “exempted from disclosure” pursuant to government privilege under FOIA.

What exactly is this privilege? In their letter, the FTC said revealing how much was spent on the two cases in question “would reasonably be expected to interfere with the conduct of the Commission’s law enforcement activities.” I’m unsure what that means. All of the cases I requested information for were matters considered closed by the FTC. Indeed, most FTC cases aren’t made known to the public until after the investigation and settlement process is concluded. And given that they were willing to disclose the amounts spent on five other cases, what made these two particularly prone to compromise? The FTC wouldn’t elaborate.

Generally, the FOIA exemptions are designed to prevent individuals from using disclosure rules to get around the civil discovery process. For example, if you’re a defendant in a proceeding before an administrative agency, you can’t use FOIA to obtain materials collected during the government’s investigation which was not obtainable at discovery. This type of exemption makes sense, but it’s wholly inapplicable to cases where outside public policy groups request budgetary information. My objective in filing the FOIA request was to provide oversight, not to interfere with ongoing FTC enforcement actions. Rest assured, I will appeal the FTC’s decision to withhold this information, if necessary wasting the time of a U.S. district judge in order to get what I asked for.

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