Conference recommends exempting dispute resolutions from FOI disclosure
WASHINGTON, D.C.–The Administrative Conference of the United States voted at its mid-June plenary session to recommend that Congress make the disclosure requirements of the federal Freedom of Information Act inapplicable to documents prepared for government dispute resolution proceedings. Agency records used in alternative dispute resolution proceedings currently are exempt only if they fall within one of the nine FOI Act exemptions.
A conference subcommittee that drafted the proposal argued that potential disclosure of dispute resolution records discourages parties from using alternatives to litigation.
But after hearing testimony from the Reporters Committee for Freedom of the Press the conference amended its proposal and will ask Congress to make confidential only documents that are generated by or initially submitted to the government in a dispute resolution proceeding.
The conference recommended confidentiality provisions for “any information concerning” dispute resolutions be deleted from the current statute after the Reporters Committee successfully argued at the plenary session that that provision was too broad.
In written comments filed in mid-May the Reporters Committee argued that the First Amendment, common law and statutory rights of access often subject court materials to disclosure, and luring parties with promises of ordinarily unavailable confidentiality is an inappropriate way to encourage administrative dispute resolution.
The Administrative Dispute Resolution Act governs dispute resolution alternatives to litigation and applies when the federal government is a participant or facilitator in proceedings such as mediation. Currently, the ADR Act specifically states that confidentiality provisions do not prevent documents related to administrative dispute resolution from being subject to the FOI Act when the government is involved.
The ADR Act currently states that its confidentiality provisions do not trigger the “catch-all” exemption to the FOI Act (Exemption 3), which applies to records “specifically exempted from disclosure by statute.” The conference will ask Congress to amend the ADR Act so that information generated by or initially submitted to the government in a dispute resolution proceeding would fall within the “catch-all” exemption.
The conference is composed of public and government agency members, and its primary purpose is to propose federal administrative reform. (Administrative Conference of the United States, Recommendation 95-6, ADR Confidentiality and the Freedom of Information Act)