Privacy vs. Transparency: Handling Protected Materials in Agency Rulemaking

96 Pages Posted: 13 Jan 2021

See all articles by Christopher S. Yoo

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Kellen McCoy

University of Pennsylvania Law School - Student/Alumni/Adjunct

Date Written: December 15, 2020

Abstract

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to tradeoff these opposing concerns. Part II explores current agency practices with respect to protected materials, based on both a survey of notices of proposed rulemaking (NPRMs), system of records notices (SORNs), and other notices issued by agencies along with interviews, a roundtable with agency officials, and a confidential survey sent to selected federal agencies. Part III makes recommends possible changes to agency practices and procedures.

Keywords: Administrative law & procedure, disclosure of sensitive information, trade secrets, personal privacy, notice-&-comment process, public dockets, e-Rulemaking Program

Suggested Citation

Yoo, Christopher S. and McCoy, Kellen, Privacy vs. Transparency: Handling Protected Materials in Agency Rulemaking (December 15, 2020). Indiana Law Journal, 2021 Forthcoming, U of Penn Law School, Public Law Research Paper No. 20-48, Available at SSRN: https://ssrn.com/abstract=3764109

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

Kellen McCoy

University of Pennsylvania Law School - Student/Alumni/Adjunct ( email )

Philadelphia, PA
United States

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