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  • Question

    As a government-to-government document may the unclassified LOA be provided to a contractor? Is the unclassified LOA proprietary or FOUO or controlled unclassified?


    Answer

    This response is based on the information provided.  We suggest you discuss with your contracting and finance team, program manager, FOIA office and/or legal department as appropriate.

     

    The first question to ask is, "Does the FMS Government consider their information in the LOA to be trade secrets, confidential commercial or financial information, or personal information pertaining to individuals?"  Other exemptions include agency personnel practices, and law enforcement. Since these requests often involve complex issues requiring an in-depth knowledge of a large and increasing body of court rulings and policy guidance, contracting officers are cautioned to comply with the implementing regulations of their agency and to obtain necessary guidance from the agency officials having Freedom of Information Act responsibility.  Excerpted from FAR 24.203 -- Policy.

     

    Has the contractor attempted to justify the need for the LOA or identify how it intends to use the information?

     

    The best guidance is, "What would be allowed by the Freedom of Information Act (FOIA)?"

     

    There are nine exemptions.

    Exemption 1: Information that is classified to protect national security.

    Exemption 2: Information related solely to the internal personnel rules and practices of an agency.

    Exemption 3: Information that is prohibited from disclosure by another federal law.

    Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.

    Exemption 5: Privileged communications within or between agencies, including those protected by the:

                    1.Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)

                    2.Attorney-Work Product Privilege

                    3.Attorney-Client Privilege

    Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.

    Exemption 7: Information compiled for law enforcement purposes that:

                    7(A). Could reasonably be expected to interfere with enforcement proceedings

                    7(B). Would deprive a person of a right to a fair trial or an impartial adjudication

                    7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy

                    7(D). Could reasonably be expected to disclose the identity of a confidential source

                    7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

                    7(F). Could reasonably be expected to endanger the life or physical safety of any individual Exemption 8: Information that concerns the supervision of financial institutions.

    Exemption 9: Geological information on wells.

     

    There are three exclusions.

    The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.

    The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.

    The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.

    Records falling within an exclusion are not subject to the requirements of the FOIA.

    The above information is from the FOIA.gov website.

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