Privacy vs. Transparency: Handling Protected Materials in Agency Rulemaking

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 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