Content:
    Peter Christnacht

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    OEMM Web Team

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:

1. Records classified as national defense or foreign policy materials (§ 552(b)(1));

2. Internal personnel rules and agency practices (§ 552(b)(2));

3. Information specifically exempted from disclosure by another statute (§ 552(b)(3));

4. Trade secrets and commercial or financial information obtained from a person and privileged or confidential (§ 552(b)(4));

5. Inter- or intra-agency memoranda or letters which would not be available to a party in litigation with the agency (§ 552(b)(5));

6. Personnel, medical and similar files, disclosure of which would constitute a clearly unwarranted invasion of personal privacy (§ 552(b)(6));

7. Records compiled for law enforcement purposes (§ 552(b)(7));

8. Records relating to the examination, operations, or condition of financial institutions (§ 552(b)(8)); and

9. 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.