Non-Public
and Confidential
What expectations of
confidentiality from public disclosure should I have regarding information I
provide in the Hotline processes?
To encourage open and
effective use of the Hotline, we will treat all information and documents
not already available to the public and obtained through the Hotline as
non-public and confidential to the extent permitted by Federal law. As
stated in the regulation at 30 C.F.R. 291.102 (d), we will permit Hotline
callers to remain anonymous.
We believe that the
quality of our Hotline assistance will be enhanced if Hotline staff are
permitted to communicate freely with MMS subject matter experts and
supervisors. This in turn, should lead to better advice to participants.
Callers are advised that
we may share Hotline information with other MMS employees as we conduct fact
finding and research to respond to requests for advice. We may also refer
information generated in Hotline matters to other MMS operational and
compliance personnel for investigation and further action where appropriate.
However, we will not share confidential information with the MMS
Royalty-in-Kind program.
Protecting the
confidentiality of documents.
The regulation at 30
C.F.R. Part 291 governing Open and Nondiscriminatory Access to Oil and Gas
Pipelines under the Outer Continental Shelf Lands Act addresses directly the
confidentiality of Hotline documents as follows:\
§ 291.111 How does MMS
treat the confidential information I provide?
(a) Any person who
provides documents under this part in response to a request by MMS to inform
a decision on whether open access or nondiscriminatory access was denied may
claim that some or all of the information contained in a particular document
is confidential. If you claim confidential treatment, then when you provide
the document to MMS you must:
(1) Provide a complete
unredacted copy of the document and indicate on that copy that you are
making a request for confidential treatment for some or all of the
information in the document.
(2) Provide a statement
specifying the specific statutory justification for nondisclosure of the
information for which you claim confidential treatment. General claims of
confidentiality are not sufficient. You must furnish sufficient information
for MMS to make an informed decision on the request for confidential
treatment.
(3) Provide a second
copy of the document from which you have redacted the information for which
you wish to claim confidential treatment. If you do not submit a second
copy of the document with the confidential information redacted, MMS may
assume that there is no objection to public disclosure of the document in
its entirety.
(b) In making data and
information you submit available to the public, MMS will not disclose
documents exempt from disclosure under the Freedom of Information Act (5
U.S.C. 552) and will follow the procedures set forth in the implementing
regulations at 43 C.F.R. Part 2 to give submitters an opportunity to object
to disclosure.
(c) MMS retains the
right to make the determination with regard to any claim of
confidentiality. MMS will notify you of its decision to deny a claim, in
whole or in part, and, to the extent permitted by law, will give you an
opportunity to respond at least 10 days before its public disclosure.
The FOIA Act
As a Federal agency, MMS
is subject to the provisions of the Freedom of Information Act 5 U.S.C. §
552 (FOIA) which requires us to release information contained in government
records to persons requesting information pursuant to the procedures
prescribed in the FOIA. Accordingly, we would be required to disclose
Hotline records requested by a member of the public, unless it is
established that the information qualifies under one of nine specific
exemptions from disclosure prescribed in § 552(b) of the FOIA as follows:
-
Records classified as national defense or foreign policy materials (§
552(b)(1));
-
Internal personnel rules and agency practices (§ 552(b)(2));
-
Information specifically exempted from disclosure by another statute (§
552(b)(3));
-
Trade secrets and commercial or financial information obtained from a
person and privileged or confidential (§ 552(b)(4));
-
Inter- or intra-agency memoranda or letters which would not be available
to a party in litigation with the agency (§ 552(b)(5));
-
Personnel, medical and similar files, disclosure of which would
constitute a clearly unwarranted invasion of personal privacy (§
552(b)(6));
-
Records compiled for law enforcement purposes (§ 552(b)(7));
-
Records relating to the examination, operations, or condition of
financial institutions (§ 552(b)(8)); and
-
Oil
geological and geophysical information and data, including maps,
concerning wells (§ 552(b)(9)).
The applicability of
these exemptions from disclosure depends on the individual facts of each
case. For guidance on what MMS believes qualifies as non-releasable because
it constitutes “trade secrets and commercial or financial information
obtained from a person and privileged or confidential” under paragraph 4
above, see the
"Guide to Royalty Information". Also see 43 C.F.R., Part 2, the
Department of the Interior FOIA implementing regulations and the Trade
Secrets Act, which makes it a crime for a federal employee to disclose such
information. 18 U.S.C. § 1905.
If we should receive an
FOIA request for information generated during a Hotline matter, MMS FOIA
personnel will be contacted to determine whether or not the requested
information is exempt from disclosure. This may involve giving the person
that provided the information opportunity to respond prior to disclosure.
MMS FOIA personnel make
all final decisions in responding to FOIA requests and it should be
understood that records containing exempt information are normally released,
but with the exempt confidential information redacted.
The ADR Act
There may be additional
protections against disclosure of information that could, in some cases, be
afforded by the confidentiality provisions of the Administrative Dispute
Resolution Act of 1996 (5 U.S.C. §§ 571, 574). The
ADR Act applies to “dispute resolution communications” in a Federal
administrative program where there is a “neutral” accepted by the parties to
aid in the resolution of a controversy.
The confidentiality
protections provided by the ADR Act would apply when a Hotline matter or
Complaint is referred to Alternative Dispute Resolution pursuant to 30
C.F.R. 291.103 and where a “neutral” is accepted by the parties to help
resolve the dispute. The ADR Act prescribes generally in 5 U.S.C. 574(a)
with a number of specified qualifications that a “neutral” in such cases
shall not
voluntarily disclose or through discovery or compulsory process be
required to disclose any dispute resolution communication or any
communication provided in confidence to the neutral.
In this regard, MMS
staff that take Hotline calls and conduct fact finding and research to
assist callers will not be regarded as neutrals for purposes of the ADR Act
nor will the normal processing of a formal Complaint fall under the ADR
Act. The ADR Act and its confidentiality provisions will apply only when a
Hotline matter is formally referred to ADR pursuant to the provisions of
§103 of Part 291.
In Federal ADR
proceedings, the ADR Act prescribes non-disclosure obligations on the
parties and on the neutral. When a Hotline matter is referred to ADR, the
parties will be notified of the specific confidentiality obligations which
the ADR Act imposes on the parties and the neutral.
Conclusion
In operating the Hotline
and responding to requests for non-binding advice and opinions, we will
limit disclosure of information provided by participants to the extent
permitted by Federal law.
If and when a Hotline
matter is referred to ADR, the parties will be advised of the specific ADR
Act confidentiality protections applicable to the parties and by the person
serving as a neutral.
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Last Updated:
08/13/2008,
03:56:22 PM
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