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COALEX STATE INQUIRY REPORT - 348

February 1999

Tom Roan, Esquire

Attorney General's Office

123 Capitol Bldg.

Cheyenne, Wyoming 82002

TOPIC: WHAT CONSTITUTES "RECEIPT" OF A RECORD FOR A FOIA REQUEST? 

INQUIRY: A permittee asked the Wyoming regulatory authority (RA) to informally review 

its application for a permit amendment with its accompanying studies, maps and other 

records. The permittee did not intend to file the application formally unless its bid on a 

BLM coal lease on an adjacent area was accepted. The permittee requested the RA to 

consider these records confidential until they were filed formally. The BLM coal lease 

was awarded to the permittee's competitor who filed a FOIA request with the RA for the 

permittee's application for permit amendment and accompanying records. The permittee 

has requested that the records and the unfiled permit amendment be returned to him. 

Are the permittee's records considered "property" of the state even though the 

application was not filed formally? Are the application records considered "public 

records" subject to a FOIA request? Are the records subject to a FOIA exemption [5 

USCS sec. 552(b)(4)] because they contain "privileged commercial or financial 

information" that could provide the competitor with a financial advantage? Does it make 

a difference that the permittee requested that the records be considered confidential? 

SEARCH RESULTS: Research conducted using the COALEX Library and other LEXIS 

materials identified four relevant ANNOTATIONS and five relevant OSM DIRECTIVES. 

The ANNOTATIONS address the "public records" and "confidentiality" issues on federal 

and state levels. The DIRECTIVES provide OSM's policies and procedures for 

implementing the FOIA in its agency. 

Excerpts from the ANNOTATIONS and DIRECTIVES are quoted below. Copies of the 

documents listed below are attached.

ANNOTATION, "What are records' of agency which must be made available under 

the Freedom of Information Act (5 USCS sec. 552(a)(3)", 50 ALR Fed 336 (1998).

II. General Principles. 3. Definition of record.

"In order for requested materials to qualify as agency records,' for purposes of a 

Freedom of Information Act (FOIA) provision (5 USCS sec. 552(a)(4(B)) which 
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U.S. Department of the Interior

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authorizes an order for the production of any agency records improperly withheld,' the 

agency must (1) either create or obtain the requested materials, and (2) be in control of 

the requested materials at the time the FOIA request is made; thus, such agency 

records' are not restricted to materials generated internally...; the relevant issue is not 

(1) whether the organization from which the documents originated is itself covered by 

the FOIA, but (2) whether an agency covered by the FOIA has created or obtained the 

material sought; the FOIA applies to records which have in fact been obtained and not 

to records which merely could have been obtained; the control requirement for agency 

records' means that the materials must have come into the agency's possession in the 

legitimate conduct of the agency's official duties; such a control inquiry focuses on an 

agency's possession of the requested materials, not on the agency's power to alter the 

contents of the material the agency receives...."

ANNOTATION, "What are records' of agency which must be made available under 

State Freedom of Information Act", 27 ALR 4th 680 (1998).

I. Preliminary Matters. 2. Summary and comment.

"[D]efinitions of public records' as contained in state freedom of information acts vary 

widely.... In general, however, the definitions of public records' generally fall within four 

categories, two that allow liberal disclosure and two that are more restrictive. The most 

liberal public record' definition provides that all records in the possession of a public 

agency, regardless of their origin or the reason for their creation or acquisition, are 

public records unless the state codes specify otherwise. The second category of liberal 

definitions of public records' provides that any record made or received in connection 

with or relating to a law, duty of the agency, or the transaction of public business, or any 

record containing information regarding those matters is a public record. On the other 

hand, some states have enacted restrictive public records' definitions, most of which 

designate as public records only those materials required to be kept by law. The other 

category of restrictive definitions defines public records' as those made pursuant to law.

"In general, whether a record or document constitutes a public record' in a particular 

case and is thus subject to disclosure depends on the definition of the term public 

record' as provided by the particular state freedom of information law and the judicial 

application of that definition to the particular record or document under consideration."

See Section 13 Permit applications for a discussion of cases holding that permit and 

license applications filed with government agencies were " public records' within the 

purview of the state freedom of information law, and were thus subject to disclosure." 

ANNOTATION, "What constitutes trade secrets and commercial or financial 

information obtained from person and privileged or confidential,' exempt from 

disclosure under Freedom of Information Act (5 USCS sec. 552(b)(4)) [ 

"Exemption 4" of " FOIA"]", 139 ALR Fed 225 (1997).
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I. Preliminary Matters. 2. Summary and comment.

"In determining the scope and applicability of this exemption, the initial problem 

requiring resolution is the determination of what classes of documents are exempt. The 

courts have generally concluded that the specific language of the exemption requires 

recognition of only two classes of material: (1) trade secrets, and (2) information which 

is (a) commercial or financial, (b) obtained from a person, and (c ) privileged or 

confidential.

. . .

"It has been held that in determining whether documents requested under the Freedom 

of Information Act are confidential' within the meaning of the fourth exemption, the 

applicable test is whether release of the information contained in such documents is 

likely to have either of the following effects: (1) to impair the government's ability to 

obtain necessary information in the future; or (2) to cause substantial harm to the 

competitive position of the person from whom the information was obtained."

. . .

"The courts have held that a party need not show actual competitive harm' from 

disclosure of the information sought in order to qualify for the second prong of the 

exemption. A showing of actual competition and the likelihood of substantial competitive 

injury has been deemed sufficient.

. . .

"Several courts have adopted a more lenient test for determining the confidentiality of 

any information that was voluntarily submitted to the government."

. . .

"Finally, the courts have recognized that a decision as to the applicability and scope of 

section 552(b)(4) requires the court to strike a balance between the strong public 

interest in favor of disclosure of information and the rights of those submitting 

information to privacy and confidentiality."

ANNOTATION, "What constitutes trade secrets' exempt from disclosure under 

State Freedom of Information Act", 27 ALR 4th 773 (1996).

"In considering whether a particular matter constitutes a trade secret' for purposes of 

the state freedom of information law exemption, the courts have considered a number of 

factors, such as whether the information sought will be used for private or commercial 

purposes, whether the information is of a privileged or confidential nature, whether the 

release of the information would permit an unfair advantage to competitors, and whether 

the information is easily accessible to competitors."

The following decisions are also enclosed for your review:

1. NATIONAL PARKS & CONSERVATION ASSO. v MORTON, 498 F 2d 765 (App 

DC 1974).

2. CRITICAL MASS ENERGY PROJECT v NUCLEAR REGULATORY COMM'N, 

975 F 2nd 871 (App DC 1992), cert den 507 US 984.
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3. INDIAN LAW RESOURCE CENTER v DOI, 477 F Supp 144 (D DC 1979).

4. BURLINGTON NORTHERN RAILROAD CO. v OMAHA PUBLIC POWER 

DISTRICT, 888 F 2d 1228 (8th Cir 1989).

OSM DIRECTIVE, Subject No. INF-3, Transmittal No. 796, "Freedom of Information 

Act (FOIA)" (Issued 9/20/93). 

Definitions: 

"e. Agency Record is any form (paper, video cassette tape, or computer data tape, etc.) 

of information already maintained by the Agency that was created by the Agency or 

received from other sources in connection with the transaction of public business."

Procedures/Preparation:

"(14) Review of Documents for FOIA Exemptions. Under the FOIA, there are nine 

exemptions on the basis of which a document (or portion of a document) may be 

withheld from disclosure to the public. OSM will withhold information falling within an 

exemption category only if (a) release of the information is prohibited by statute or 

Executive Order (EO 12600 and SMCRA for example) or (b) should grounds exist for 

invoking one of the FOIA exemptions"

Also enclosed is:

1. DIRECTIVE INF-3, Transmittal No. 721, "FOIA" (Issued 5/14/92).

OSM DIRECTIVE, Subject No. REG-15, Transmittal No. 696, "Policy and 

Procedures for Maintaining Confidentiality of Permit Application Information" 

(Issued 11/21/91).

Definitions: 

"b. Confidential Information. In the context of this directive --

(1) For mining permits, revisions, and renewals, confidential information is defined as, 

and limited to, the information that has been clearly identified as confidential by the 

applicant and submitted separately from the remainder of the application, and pertains 

only to the analysis of the chemical and physical properties of the coal to be mined, 

except information on components of such coal which are potentially toxic in the 

environment, or is required under section 508 of SMCRA, but is not on public file 

pursuant to State law."

These two OSM DIRECTIVES are enclosed for background:

1. OSM DIRECTIVE, Subject No. REG-35, "Processing Applications for Federal 

Permits" (Issued 1/9/90). 
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2. OSM DIRECTIVE, Subject No. ADS-1, "Policies and Procedures for 

Implementing the Privacy Act of 1974" (Issued 3/1/91).

ATTACHMENTS

A. 5 USCS sec. 552 (b)(4) (1998). 

B. ANNOTATION, "What are records' of agency which must be made available 

under the Freedom of Information Act (5 USCS sec. 552(a)(3)", 50 ALR Fed 336 

(1998). 

C. ANNOTATION, "What are records' of agency which must be made available 

under State Freedom of Information Act", 27 ALR 4th 680 (1998). 

D. ANNOTATION, "What constitutes trade secrets and commercial or financial 

information obtained from person and privileged or confidential,' exempt from 

disclosure under Freedom of Information Act (5 USCS sec. 552(b)(4)) [ 

"Exemption 4" of " FOIA"]", 139 ALR Fed 225 (1997). 

E. ANNOTATION, "What constitutes trade secrets' exempt from disclosure under 

State Freedom of Information Act", 27 ALR 4th 773 (1996). 

F. NATIONAL PARKS & CONSERVATION ASSO. v MORTON, 498 F 2d 765 (App 

DC 1974). 

G. CRITICAL MASS ENERGY PROJECT v NUCLEAR REGULATORY COMM'N, 

975 F 2nd 871 (App DC 1992), cert den 507 US 984. 

H. INDIAN LAW RESOURCE CENTER v DOI, 477 F Supp 144 (D DC 1979). 

I. BURLINGTON NORTHERN RAILROAD CO. v OMAHA PUBLIC POWER 

DISTRICT, 888 F 2d 1228 (8th Cir 1989). 

J. OSM DIRECTIVE, Subject No. INF-3, Transmittal No. 796, "Freedom of 

Information Act (FOIA)" (Issued 9/20/93). 

K. OSM DIRECTIVE INF-3, Transmittal No. 721, "FOIA" (Issued 5/14/92). 

L. OSM DIRECTIVE, Subject No. REG-15, Transmittal No. 696, "Policy and 

Procedures for Maintaining Confidentiality of Permit Application Information" 

(Issued 11/21/91). 

M. OSM DIRECTIVE, Subject No. REG-35, "Processing Applications for Federal 

Permits" (Issued 1/9/90). 

N. OSM DIRECTIVE, Subject No. ADS-1, "Policies and Procedures for 

Implementing the Privacy Act of 1974" (Issued 3/1/91).