Freedom of Information Act; Implementation, Organization, Procedures, and Rules of Practice
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BILLING CODE 3410-02-M FEDERAL TRADE COMMISSION 16 CFR Part 4 Freedom of Information Act; Implementation, Organization, Procedures, and Rules of Practice AGENCY: Federal Trade Commission. a c t io n : Final rule. s u m m a r y : This amendment makes FTC Rule 4.10(a)(3) reflect more closely the prevailing legal standard for Exemption 5 of the Freedom-of Information Act, 5 U.S.C. 552(b)(5) on which the rule is based. The Supreme Court has long construed Exemption 5 as protecting from disclosure internal agency documents that would not be “routinely” or “normally” available in private litigation with the agency. Most recently, in G rolier, Inc. v. FTC, 103 S.Çt. 2209 (1983), the Court stated that attorney work-product is not “normally” or “routinely” available to parties in litigation, and hence is exempt under Exemption 5 without regard to the status of the litigation with which it was prepared. The effect of the amendment is to reflect this legal standard by changing the definition of nonpublic information Rule 4.10(a)(3) from materials that are "not available” in civil discovery to materials that are not “routinely available.”
EFFECTIVE DATE: July 27,1984. FOR FURTHER INFORMATION CONTACT*. Alexandra Buek, Assistant to the General Counsel, Federal Trade Commission, Washington, D.C. 20580 (202) 523-3906.
SUPPLEMENTARY INFORMATION: Rule 4.10(a)(3) is a rule of agency organization, procedure or practice. It is therefore being amended without notice and comment. 5 U.S.C. 553(b)(A); see 16 CFR 1.21 (1983). The amendment is intended to reflect the case law interpreting Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5), on which the rule is based. See, e.g., United S tates v. W eber A ircraft Corp., 104 S.Ct. 1488 (1984); G rolier, Inc. v. FTC, 103 S. Ct. 2209 (1983).
List of Subjects in 16 CFR Part 4 Administrative practice and procedure, Freedom of Information Act, Privacy Act, Sunshine Act.
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30166 Federal Register / V o l 49, No. 146 / Friday, July 27, 1984 / Rules and Regulations PART 4—MISCELLANEOUS RULES Accordingly, the Commission amends 16 CFR 4.10(a)(3) by revising the first sentence, with the remainder of § 4.10(a)(3) to remain unchanged, to read as follows:
§ 4.10 Nonpublic information.
* * * * * (a ) * * * * * * * * (3) Interagency or intra-agency memoranda or letters which would not routinely be available by law to a private party in litigation with the Commission. * * * * * * * * (15 U.S.C. 41 et seq.) By direction of the Commission. Benjamin I. Berman, Acting Secretary.
[FR Doc. 84-19904 Filed 7-26-84; 8:45 am]