UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: August 15, 1996
MEMORANDUM
SUBJECT: Public Release of EPA Enforcement Information
FROM: Steven A. Herman
Assistant Administrator
TO: All Agency Employees
I. Purpose
This memorandum establishes Agency-wide Guidelines to ensure consistency in the
release or withholding of documents related to EPA enforcement matters, and supersedes the
September 16, 1985 document entitled "United States Environmental Protection Agency
Enforcement Document Release Guidelines".
All EPA personnel who participate in and support enforcement actions should exercise
extreme caution in their handling of enforcement-related documents, seek guidance concerning
both written and oral requests for such documents, and ensure that no documents are released
that are prohibited from disclosure or could harm any enforcement proceedings.
The Agency gathers and controls a vast amount of sensitive information. This
information is obtained in various ways. It may be submitted voluntarily by the entity to which
it pertains; it might be submitted as a requirement under an EPA statute or regulatory scheme; it
may be obtained through information requests sent by the Agency; or it may be seized by
judicial process of subpoena or warrant.
Regardless of the manner by which information comes into the possession of EPA, the
agency has numerous responsibilities that attend to the custody and control of sensitive,
enforcement-related information. These responsibilities include an obligation on the Agency and
its employees to balance many competing interests that influence the decision whether or not to
release to the public enforcement-related documents.
II. Goal
The goal of this policy is to conform with the "presumption of disclosure", which is the
foundation of the Freedom of Information Act (FOIA) and is reiterated by Attorney General
Janet Reno in her October 4, 1993) Memorandum for Heads of Departments and Agencies.
The presumption of disclosure does not extend, however, to certain categories of
information such as Confidential Business Information, personal privacy information or
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information prohibited from disclosure by statutes (such as the Grand Jury secrecy rule J), nor
does it routinely extend to documents whose release would interfere with enforcement
proceedings.
This policy is intended to encourage the greatest possible disclosure, but without
compromising enforcement matters or violating legal prohibitions against disclosure. The
purpose underlying this policy is to further EPA's mission by enhancing the Agency's ability, to
conduct its business without undue interference and to protect the rights of persons affected by
Agency investigative or enforcement activity; it is not intended to hide information from the
public, nor to curb Agency employees' freedom to have contact with the public. These purposes
are accomplished by balancing the legal protections available to the Agency with the interests of
the public to full access of information. In addition, the policy ensures that the constitutional
protections afforded to criminal targets or defendants are safeguarded.
III. Scope
This policy applies to any document which has been placed into an enforcement file, or is
otherwise being used, for an enforcement purpose. Documents which were not originally filed
or used for an enforcement purpose but are now so used or filed are covered by this policy.
This policy applies not only to those employees assigned to the Office of Enforcement
and Compliance Assurance, but to all Agency personnel who participate in enforcement actions,
including program, regulatory, technical, legal and support personnel.
IV. General Principles
The Freedom of Information Act was enacted based upon the fundamental principle that
an informed citizenry is essential to the democratic process and that the more the American
people know about their government the better they will be governed.
The FOIA also provides a mechanism, in its exemption provisions, to balance several
unique interests that conflict with its underlying principle of disclosure. The Act's exemptions
were designed to guard against specific harms to both governmental and private interests. The
mandatory exemptions dictated that certain information could not be disclosed. The
discretionary exemptions required the agencies to balance competing interests in determining
whether or not to withhold or release certain information.
In the past, the Department of Justice endorsed the withholding of information if federal
agencies had a "substantial legal basis" for doing so. On October 4, 1993, the Attorney General
issued a policy announcing that the Department of Justice would no longer defend an agency's
1 See Federal Rules of Criminal Procedure, Rule 6(e). See discussion addressing why
Rule 6(e) is considered a statute for the purposes of Exemption 3, below.
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withholding of information merely because there is a "substantial legal basis". Rather, the policy
declared a "presumption of disclosure", and directed that discretionary exemptions be applied
only after careful consideration of the reasonable expected consequences of disclosure in each
particular case.
The distinction between mandatory and discretionary exemptions is critical. EPA
personnel must understand that release of prohibited information may subject the agency to
lawsuits, and individuals to disciplinary action, or civil or criminal liability. On the other hand,
the agency is vulnerable to challenge if information is withheld improperly.
V. Withholding Documents
A. Prohibitions Against Disclosure
Statutes such as the Privacy Act and the Trade Secrets Act prohibit disclosure of types of
information within their purview. Moreover, EPA regulations establish that as a matter of
policy, certain information, even if not covered by such statutes, may not be released unless
ordered to do so by a Federal court or in exceptional circumstances2. Releases under
"exceptional circumstances" are determined on a case-by-case basis, and must be approved by
the Office of General Counsel or Regional Counsel.
1. Personal Privacy Information (FOIA Exemption 6)
Exemption 6 of the FOIA exempts from disclosure information relating to an individual,
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any enforcement-related information related to an individual (whether in one's personal or
entrepreneurial capacity) must always be carefully scrutinized for Exemption 6 applicability.
Information which qualifies for Exemption 6 protection may not be released except by order of a
court of competent jurisdiction, or under "exceptional circumstances".
Exemption 6 permits the withholding of all information about individuals in "personnel,
medical, and similar files, the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." Personal information, which includes any information about a
particular individual which is identifiable to that individual, may be disclosed only if there is no
expectation of privacy in the information, or if the privacy interest is outweighed by the public
interest in disclosure of the information. Several examples follow in order to illustrate EPA's
practice in implementing Exemption 6:
Example 1 EPA has relied on Exemption 6 in declining to provide the identities of
individual residents whose drinking water wells or lawn soils have been sampled by the
See_40CFR§2.119(b).
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Superfund program and tested for contamination. In these cases, the Agency has
determined that the privacy interest in not being harassed by PRPs is not outweighed by
the public interest in disclosure of this information.
Example 2 The Agency routinely relies on Exemption 6 to withhold EPA employees'
social security numbers that appear on CERCLA timesheets.
Case law has resulted in clarification of several phrases that are often critical for
interpreting Exemption 6. Below is a summary of how the courts have interpreted these phrases
in construing Exemption 6.
Privacy interest: Encompasses the individual's reasonable expectation of privacy and
control over the dissemination of personal information about himself. Individuals have an
expectation of privacy with respect to information which, by its nature, is personal, embarrassing
or otherwise injurious to the individual. Privacy interests also include the right to be free from
secondary effects of disclosure, such as harassment or unwanted intrusions, even if the
information itself is not inherently harmful.
Public interest: There is a public interest in a particular Agency record if disclosure of
that record sheds light on the operations or activities of the government.
Glomar: Occasionally a FOIA request is worded in such a way that it would not be
possible to deny the record under Exemption 6 without revealing the very information which is
protected under the Exemption. For example, a request seeking the information contained in a
criminal investigation file targeting a named individual would normally be withholdable under
Exemption 6 (and Exemption 7(C)). However, if the Agency denied the FOIA request for such
records in reliance on Exemption 6, the Agency would be revealing the existence of such
records, the very information which is protected. To guard against such inadvertent disclosures,
the Agency may provide a "Glomar" response; that is, neither confirming nor denying the
existence of records in response to all requests for criminal files pertaining to individuals.
Before a "Glomar" response is issued, however, the Office of General Counsel, Finance and
Operations Division, must be consulted.
Example 1 A recent FOIA request from a newspaper sought "copies of any
correspondence since January 1, 1990, between [EPA] and [a United States Senator], his
office, his staff, or any of his political organizations" including campaign organizations
which were listed by name in the request. In the response supplying this information to
the newspaper, which included constituent requests forwarded by the Senator's office, the
names of individual constituents, as well as other personal information such as home
addresses and telephone numbers, were redacted.
Example 2 EPA specifically developed a policy regarding FOIA responses to the public
for a multi-county site contaminated with lead-mining wastes, affecting many residential
properties. The Agency decided that prior to issuing the Agency's response action
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decision documents, the Agency would release the lead level information only to the
property owners, to the exclusion of all others.
Example 3 Personal information in enforcement files concerning EPA employees, e.g.,
employees' social security numbers on time sheets, are withheld from FOIA requestors
under Exemption 6.
Example 4 EPA routinely seeks and obtains financial information, including copies of
stare and federal tax returns, from potentially responsible parties (PRPs) in accordance
with Section 104(e)(2)(C) of CERCLA in order to assess the ability of PRPs to fund or
otherwise finance a response action. Individual income tax returns, in contrast to
business tax returns, may not be "business information" within the meaning of 40 C-F.R.
2.20 1 (C) and thus may not be elicible for confidential treatment under Exemption 4.
Nonetheless, there is a privacy interest in such tax returns which is unlikely to be
counterbalanced by any public interest in their disclosure. This information is of the type
contemplated for protection under Exemptions 6 and 7(C).3
2. The Privacy Act
The Privacy Act protects information contained within a Privacy Act system of "records;
i.e., information about or pertaining to an individual which is maintained or retrieved by the
individual's name or other personal identifier (e. a., Social Security Number). A collection of
information which is not identifiable to an individual is not a record for Privacy Act purposes;
nor is information which contains an individual's name, but is not about or does not pertain to
him.
Although EPA is required to publish a notice of the existence and character of a Privacy
Act system of records in the Federal Register, information contained within a Privacy Act
system of records is subject to the restrictions of the Privacy Act regardless of whether the
Agency has complied with the requirement of publishing & Federal Register notice.
The Privacy Act prohibits disclosure of records covered by the Act (subject to civil and
criminal penalties) unless the records fall within one or more of twelve exceptions set
forth in the Act. One exception permits disclosure if the records are required to be
released under FOIA. Thus, if a Privacy Act record is required to be disclosed under
FOIA (i.e., is not exempt under FOIA), the Privacy Act will not preclude disclosure.
However, if such a record is exempt under the FOIA, the Privacy Act will prohibit the
Agency from releasing the record in its discretion. Accordingly, personal information in
law enforcement records which is exempt under FOIA exemptions 6 and 7(C) may not be
disclosed in the Agency's discretion.
3 See, however, discussion of withholdability of CERCLA §104 information, below.
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The Agency is currently considering whether any civil enforcement records are of
Privacy Act systems of records. If in doubt concerning the Privacy Act status of a record,
contact the Office of General Counsel.
3. Confidential Business Information (Exemption 4)
FOIA Exemption 4 protects trade secrets and commercial or financial information that is
privileged or confidential. Generally, if information relates to a business or trade, it should be
examined to determine whether the information is confidential or whether the business asserts a
claim of confidentiality. By regulation, business information may not be disclosed unless the
Agency has ascertained that there is no claim of confidentiality applicable to the information, or
a final determination of nonconfidenitiality has already been made and the appropriate period
allowed for comment by the business has ended.
• If a FOIA request includes business information within its scope, the office responding to
the request must first ascertain whether a confidentiality claim has been asserted for the
information.
• If no confidentiality claim has been made but the information is of a type where the
submitter might be expected to object to its release, EPA must still contact the business to
ascertain whether the business wishes to assert a claim for the information, unless when
the information was requested EPA gave notice that the information was subject to
release if no confidentiality claim was asserted.
• If the information is claimed as confidential, the EPA office should follow the procedures
outlined in Chapter 8 of the FOIA manual.
Following is a list of types of information frequently claimed as confidential by the
submitting company. This list is not exhaustive, however, and the Agency must treat the
claimed information as confidential until a final confidentiality determination is made.
- Trade secret formulas, devices and identities of chemicals
- identities of pesticide inerts
- The fact that a company is manufacturing, importing, processing, etc. a particular
chemical
- Production volumes of chemicals, or amount stored at a company facility
- Industrial process information
- Any financial data regarding a company (e.g.,. assets, profits, taxes), obtained
from any source
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- Contractor cost-structure and other contractor-supplied financial information such
as direct labor rates, indirect rates, proposals, fees
• If no confidentiality claim is asserted for a record, the Agency may not use Exemption 4
as grounds for withholding.
With some exceptions, the Agency deems commercial or financial information to be
entitled to Exemption 4 protection if 1) its disclosure is likely to cause substantial harm to the
competitive position of the submitter, 2) the information was voluntarily submitted to the
Agency and is of a type that the submitter would not customarily disclose to the public, or 3)
information is privileged.
Example of Settlement Documents In the course of settling claims, the Agency
frequently sends correspondence to, and receives correspondence from, private entities against
whom claims have been asserted. The private entity may claim its correspondence as
confidential. If so, the correspondence is likely to be eligible for confidential treatment under
the settlement privilege.4 Correspondence from the Agency to the private entity is not eligible
for protection under Exemption 4 (except insofar as the correspondence restates the private
entity's communications with EPA), but potentially is subject to Exemption 5 protection (see
below). Note that the Trade Secrets Act and some environmental statutes impose criminal
liability for unauthorized disclosure of confidential business information.
4. Statutory (Exemption 3)
Exemption of FOIA covers information specifically exempted from disclosure by another
Federal statute. The statute in question must leave no discretion as to the requirement that
information be withheld, or it must establish particular criteria for withholding or refer to
particular types of information to be withheld.
The most common Exemption 3 statute applicable to enforcement documents is Federal
Rules of Criminal Procedure, Rule 6(e) which prohibits disclosure of matters occurring before a
grand jury. Although Rule 6(e) is not technically a statute, it has been held to satisfy the
"statute" requirement of Exemption 3 because it was specially amended by Congress in 1977.
B. Discretionary Withholding
1. Presumption of Disclosure
4 The Agency must first establish that the party has claimed the information as
confidential and follow the other appropriate procedures in 40 CFR part 2, subpart B.
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Throughout the following summary of the discretionary exemptions most common to
enforcement documents - Exemptions 5 and 7 - the presumption of disclosure allows
withholding of documents only if, after careful consideration of the reasonably expected
consequences of disclosure in each particular case, the Agency foresees that disclosure would be
harmful to an interest protected by that exemption.
2. Articuable Harm
In order to withhold enforcement-related documents not otherwise prohibited from
disclosure, the Agency must be able to identify and define the harm that could reasonably be
expected to result if requested information were released to the public.
3. FOIA Exemptions 5 and 7
Exemption 5 - Privileged Inter-Agency or Intra-Agency Memoranda. This
exemption allows the Agency to withhold from disclosure interagency or intra-agency
memoranda or other written communications which fall under one or more of several privileges,
including:
• the deliberative process privilege;
• the attorney work-product privilege;
• the attorney-client privilege;
• the expert witness report privilege;
• the government commercial information privilege;
• the investigative report privilege; and
• the confidential informant privilege (see also Exemption (b)(7)(D)).
• Predecisional. Deliberative Documents. Only pre-decisional, deliberative documents
may be withheld. Predecisional, deliberative documents written prior to the agency's
final decision and usually contain recommendations or express opinions on that decision.
These documents typically discuss the pros and cons of the Agency's adoption of one
viewpoint or another. In determining whether a document is predecisional, consider the
document's language and its place in the Agency's chain of decision making. Documents
written by a subordinate and transmitted to a superior are more likely to be predecisional
than those written by a person, with final decision making authority. Factual information
contained within a deliberative document must normally be released.
The deliberative process privilege is intended to encourage frank and open discussion
within the government, to protect against premature disclosure of policies before they are
adopted, and to protect against public confusion should recommended actions be
different upon formal adoption by the government. Internal Agency comments on
proposed courses of action, pros and cons of various options, and similar discourse may
be withheld from from release under Exemption 5.
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Example 1 The Agency has withheld from requestors copies of Requests for
Concurrence on Settlement, relying on the Deliberative Process Privilege.
Example 2 The Agency has withheld from requestors copies of comments on
draft or pre-decisional regulatory proposals, Agency enforcement initiatives, or
enforcement policy matters.
Settlement Documents Some courts have held that documents transmitted between the
government and third parties during settlement negotiations are not inter- or intra-agency
documents, but have indicated much sympathy for withholding such documents from
public disclosure for policy reasons. The Department of Justice has indicated that
settlement documents be withheld by agencies at the administrative level, particularly
where strong policy interests militating against disclosure are present. (See Exemption 4,
above, for settlement documents received from private entities.)
The Attorney Work-Produce Privilege This privilege allows the withholding of
documents prepared by, or at the direction of, an attorney in anticipation of possible
litigation (which can include administrative proceedings). Litigation need not have
commenced but it must be reasonably contemplated. This means that a specific claim
must exist that is likely to lead to litigation. The privilege is still applicable after a legal
case has ended or even if it was never begun, as long as the documents were prepared in
reasonable contemplation of litigation.
Example The Agency generally withholds litigation referrals and other memos or
notes prepared by the case attorney which discuss evidence against defendants in
enforcement actions and any weaknesses in the evidence, or possible defenses.
Exemption 7(A) may also apply to these documents.
The Attorney-Client Privilege. This privilege applies to confidential communications
between attorney and client. An attorney-client relationship is necessary to invoke this
privilege. Such a relationship exists for communications between an Agency attorney
and an Agency employee, The application of this privilege requires that the
communications between the parties be of a confidential nature. Unlike the attorney
work-product privilege, the availability of the attorney-client privilege is not limited to
the context of litigation. The privilege still applies when this information is disseminated
within the Agency to persons involved with the matter in question. However,
unrestricted distribution within the Agency would preclude the Agency from claiming the
privilege. Communications between the Department of Justice attorneys and EPA
counsel or EPA program or technical staff are also covered by this privilege protection.
The Government Commercial Information Privilege. A privilege is available to the
government for information it generates in the process leading up to the award of a
contract. An example of this type of information would be cost estimates prepared by the
government and used to evaluate the construction proposals of private contractors.
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• The Expert Witness Report Privilege. Another privilege that is commonly invoked
allows the withholding of records generated by an expert witness.
• The Investigative Report Privilege. This privilege has been applied to protect witness
statements in Criminal Investigation Division and Inspector General investigations.
• The Confidential Statement Privilege. Statements obtained from confidential informants
such as statements given to the Inspector General by witnesses who have been granted
confidentiality, may be withheld.
Exemption 7 - Records or Information Compiled For Law Enforcement Purposes.
Exemption 7 applies to all records or information compiled for law enforcement purposes whose
release could reasonably be expected to cause the specified harm each sub-section is intended to
prevent. Exemption 7 provides that records or information compiled for law enforcement
purposes need not be disclosed under the following six instances.
1) Exemption 7(A): Interference with Enforcement Proceedings. Records or information
compiled for law enforcement purposes may be withheld where disclosure "could
reasonably be expected to interfere with enforcement proceedings"
Harm to the government's case in court by premature release of evidence or information,
or damage to the Agency's ability to conduct an investigation, constitutes interference
under this exemption. Damage to a related or similar enforcement proceeding also
constitutes interference. Exemption 7(A) can be invoked only as long as the enforcement
proceeding is in progress, pending or anticipated.
The Agency must be able to specifically articulate the kind of harm that would affect its
case. Some types of harm that fall under this exemption include premature disclosure of
the government's evidence and strategy or the focus of its investigation, and the
possibility that potential witnesses and sources of information would be inhibited.
Example 1 EPA typically uses contractor support at early stages of a site
investigation to determine the "potentially responsible parties" ("PRPs") that
might be liable for fire cleanup of the site, or, in the alternative for the
reimbursement of EPA's costs, if EPA funds the cleanup. The contractor
prepares for EPA a "PRP Report" summarizing the results of its investigation.
The Agency often withholds this report under Exemption 7(A). Similarly,
CERCLA enforcement staff may compile and maintain information linking
various entities to sites being addressed through emergency response or remedial
actions. The Agency often withholds this information during the pendency of a
CERCLA § 104(e) request to a PRP in order to prevent PRPs from using this
information to tailor their responses to the agency according to their estimation of
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the strength of the enforcement case.5 As this example illustrates, Exemption
7(A) is extremely time-sensitive: information which must be protected at one
state of an investigation may have few consequences at a later stage.
Example 2 The Agency may withhold the transcript of a deposition taken of and
informant pursuant to a CERCLA administrative subpoena. Exemptions 7(A) and
7(C) may be applicable, as well as 7(D) (where the informant asks to keep his
identity confidential). If the depositions are part of a confidential investigation,
and the Agency is still trying to build it's case against some PRPs, the Agency
may want to preclude the PRPs from having access to the informants and being
able to intimidate them into changing their testimony.6
Example 3 The Agency withheld an internal memorandum on enforcement
strategy for the Tulalip Landfill site. Disclosure of the document would reveal
sensitive information about the Agency's approach to the site, which could
interfere with subsequent enforcement actions or with access agreements to the
Superfund site.
2) Exemption 7(B): Deprive a Person of the Right to a Fair Trial. Records or information
compiled for law enforcement purposes may also be withheld if their disclosure "would
deprive a person of the right to a fair trial or an impartial adjudication." This exemption
applies mostly in criminal trials of individuals.
3) Exemption 7(C): Unwarranted Invasion of Personal Privacy. Records or information
compiled for law enforcement purposes may be withheld if disclosure "could reasonably
be expected to constitute an unwarranted invasion of personal privacy." The public
interests in the disclosure of a document must be balanced against the invasion of privacy
that would result from disclosure.
Courts have recognized the danger of damage to an individual's reputation simply
because or her name is mentioned in a record compiled for law enforcement purposes
even though he or she is not charged. Such information should be released only where
exceptional interests weigh in favor of disclosure.
Exemption 7(C) is also used to protect the identities of Criminal Investigation Division
special agents and other law enforcement officials who are personally involved in
compiling records or information for law enforcement purposes, and to withhold the
names of informers who may not technically qualify as confidential sources under
Exemption 7(D).
5 See, however, discussion of withholdability of CERCLA §104 information, below.
6 See, however, discussion of withholdability of CERCLA §104 information, below.
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Because the test for withholding personal information under Exemption 7(C) is less
stringent than that under Exemption 6, both exemptions should ordinarily be refined to
protect personal privacy in the law enforcement context.
4) Exemption 7(D): Disclose Identity of Confidential Source. The first prong of Exemption
7(D) applies to civil law enforcement investigations and permits records and information
compiled for law enforcement purposes to be withheld if disclosure "would reveal the
identity of the source." The second prong of Exemption 7(D) applies to criminal law
enforcement matter and allows the withholding not only of the identity of the confidential
source, but also any information provided by the source. This allows withholding of
information provided by a source even if the information was obtainable by other means.
Example The Agency withholds the identity of persons interviewed during an
investigation to find potentially responsible parties at a Superfund site, because
the source may request anonymity, or may be subject to potential retaliation by
employers.7
5) Exemption 7(E): Reveal Techniques. Procedures or Guidelines. This exemption permits
the withholding of records or information compiled for law enforcement purposes that
"would disclose techniques and procedures for law enforcement investigations or
prosecution, or would disclose guidelines for law enforcement investigation or
prosecution if such disclosure could reasonably expected to risk circumvention of law."
Generally, the technique or procedure should not be known to the public. Those portions
of an internal agency enforcement manual or guidelines that would enable the
circumvention of the law should be withheld.
Example 1 The Agency received a FOIA request for all Agency information
relating to criteria used for selecting facilities for multimedia inspection. Among
the grounds available for withholding subject documents is Exemption (7E).
Example 2 The Agency withholds lists of target facilities for PCB compliance
inspections and lists of inspection categories showing the percentage distribution
of target number for each category.
6) Exemption 7(F): Endanger Life or Safety of Any Individual Under this exemption, any
records or information compiled for law enforcement purposes may be withheld if
disclosure "could reasonably be expected to endanger the life or physical safety of any
individual".
C. Special Considerations in Criminal Enforcement Cases
7 See, however, discussion of withholding of CERCLA §104 information, below.
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The prosecution of criminal cases is governed by a strict set of rules, set forth in the
Federal Rules of Criminal Procedure. The scope of these rules extends beyond court procedures.
The conduct of those involved in a criminal matter is strictly governed from the very outset of a
criminal investigation. These rules are designed to protect the guaranteed constitutional rights of
a criminal defendant. As a result, virtually every aspect of a criminal case - from initiation to
closure - will be subject to challenge by the defense.
Therefore, in order to successfully investigate and prosecute environmental crimes, the
Agency must be able to control and monitor the conduct of its employees to protect against later
challenges by the defense that may compromise or even destroy a criminal case. Also, innocent
persons, cleared during investigation, may be harmed by premature statements by Agency
employees.
In a criminal case, the government has the burden to prove the crime(s) beyond a
reasonable doubt. This is the highest, most stringent burden of proof in the American legal
system.
In order to develop that proof in an environmental criminal case, the Agency routinely
relies on the assistance and expertise of many of its employees. Thus, Agency employees will
have access to information that is not otherwise available to the public. In a criminal case,
because of the government's heavy burden of proof, the confidentiality of such privileged
information must be carefully guarded.
In addition, the Criminal Investigation Division special agents rely on an element of
secrecy in conducting their investigations. Criminal cases are often supported by information
provided by employees of, and documents maintained by, a targeted company. If the fact of a
criminal investigation is prematurely disclosed, the criminal target will have the opportunity to
tamper with potential witnesses, destroy incriminating documents or otherwise conceal the
evidence of a crime, and may endanger potential witnesses.
With these special considerations applicable to criminal cases in mind, Congress carved
out an exclusion to the FOIA, which allows the Agency to treat records as not subject to the
FOIA requirements under the following, limited circumstances:
1) If the investigation or enforcement actions involve a possible violation of criminal
law; and
2) if there is reason to believe that the subject of the investigation is unaware of its
pendency; and
3) if the mere disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
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In situations where it would appear to be appropriate to rely on this exclusion provision,
Agency employees must consult with the Office of the General Counsel, Information Law
attorneys, Finance and Operations Division, prior to responding to the request.
It is also important to distinguish between the exclusion described here, and the situation
in which the Agency refuses to confirm or deny the existence of records responsive to a FOIA
request (see Exemption 6 - "Glomar", above)
D. Disclosure of Data Collected Pursuant to CERCLA § 104, and CAA §114
CERCLA § 104(e)(7)(A) and the CAA provides that "Information obtained ... under this
section ... shall be available to the public" unless it is CBI. A May 7, 1992 opinion issued by the
Office of General Counsel stated that the language in §104(e)(7)(A) precluded the assertion of
FOIA exemptions (other than Exemption 4) for information collected pursuant to § 104(e). Upon
the reconsideration of the issue, in consultation with the Department of Justice, OGC withdrew
the 1992 opinion via a memorandum issued on September 11, 1995, pending development of
further guidance. Additionally, Superfund legislation being considered by Congress containing
language which would expressly preserve FOIA privileges for information collected pursuant to
§104.
Similarly, CAA §114(c) provides that "any ... information obtained under [§114(a)] shall
be made available to the public upon a showing to the Administrator ... that... information ... if
made public, would divulge methods or processes entitled to protection as trade secrets."
OECA's practice regarding this section has been to allow the withholding of information from
the public upon a showing that the information is CBI. However, OECA's practice also to permit
the assertion of other FOIA exemptions for information collected pursuant to §114.
E. Consultation and Approval Procedure
While the authority to issue an initial determination releasing information has been
delegated to the Division Director level in OECA and the Regions8 the OECA or regional
attorney assigned to the case must be consulted prior to the release of documents in response to a
request for records pertaining to any ongoing enforcement matter. In cases that have been
referred to the Department of Justice (DOJ), the DOJ attorney and/or the Assistant United States
Attorney (AUSA) assigned to the case should also be consulted.
The authority to withhold requested enforcement records lies with the Assistant
Administrator and his Office Directors. Each region has its own delegation of authority which
8 Regions may have differing delegations of authority which should be confirmed by
those handling the FOIA request.
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should be adhered to. The FOIA attorney in the Offices of Regional Counsel should concur on
all denials.
F. Resources
Additional information about the FOIA exemptions and their application to enforcement
related documents is found at 40 CFR Part 2 and the Agency's Freedom of Information Act
Manual (#1550, 992 Edition).
An exhaustive study of the FOIA and Privacy Act, and related case law, is contained in
the two-volume publication entitled the Freedom of Information Act Guide and Privacy Act
Overview, and the Freedom of Information Case List issued by the Department of Justice,
Office of Information and Privacy, and available through the U.S. Government Printing Office.
Questions concerning the releasability of information may be directed to the Office of
General Counsel, Finance and Operations Division, at (202) 260-5460.
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