Several recent rulings have highlighted the uncertainty surrounding the discoverability of information provided to the government, either as a part of a government investigation or subsequent proceedings. The decisions suggest that the views of courts on such issues may vary widely, which creates uncertainty for companies interacting with the government.

On March 14, 2016, the U.S. Securities and Exchange Commission (“SEC”) was able to avoid producing documents it had collected during a foreign bribery investigation of Wal-Mart Stores, Inc. in Robbins Geller Rudman & Dowd LLP v. U.S. Securities and Exchange Commission, No. 14-cv-02197 (M.D. Tenn.). In 2014, a law firm brought an action for injunctive relief pursuant to the Freedom of Information Act, claiming that the SEC had failed to provide materials in response to a request that Wal-Mart had provided to the SEC in connection with the agency’s Foreign Corrupt Practices Act investigation into Wal-Mart. Notably, some of these materials had already been disclosed by Wal-Mart itself as well as by the New York Times. However, the SEC refused to produce any materials in response to the request, claiming that the materials were subject to exemption 7(A) of the Freedom of Information Act, which allows an agency to withhold information that was “compiled for law enforcement purposes” where its disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The SEC sought summary judgment on the same issue.
Continue Reading Freedom of Access or Freedom to Investigate? Uncertainty Remains Concerning the Discoverability of Materials Provided to the Government

There are 99 federal agencies that are subject to the Freedom of Information Act (FOIA) and—according to the Justice Department’s Office of Information Policy (OIP)—there are also 99 sets of FOIA regulations.  As Congress contemplates a move to further legislate agency responses to FOIA demands, the OIP is commencing an interagency effort this Spring to draft a single regulation to iron out inconsistences among the varied federal practices.  Additionally, a number of federal agencies have moved to adopt the FOIAOnline website, which allows users to submit FOIA requests online and track the progress of those requests. The renewed attention to FOIA and—relatedly—denials of FOIA requests, highlights the risks that accompany document productions made to federal authorities.  Consider the not-uncommon scenario:

  • Your Company gets subpoenaed by the federal government.
  • You produced thousands, if not hundreds of thousands, of Company records.
  • Now, your documents are subject to a FOIA request and possible public dissemination.

Is there any way to protect against this?

Continue Reading Take 4 – Protecting Confidential Commercial Information from FOIA