NAO 216-100: Appendix B – Primary Protective Authorities

a. Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1853d, (Magnuson Act).

Data required as part of a reporting requirement under the Magnuson Act are protected from disclosure to the public by section 303(d) which provides: "Any statistic submitted to the Secretary by any person in compliance with any requirement under subsections 303(a) and (b) shall be confidential and shall not be disclosed except:

1. to Federal employees and Council employees who are responsible for management plan development and monitoring;
2. to State employees pursuant to an agreement with the Secretary that prevents public disclosure of the identity or business of any person; or
3. when required by court order.

“The Secretary shall, by regulation [See 50 CFR part 603], prescribe such procedures as may be necessary to preserve such confidentiality, except that the Secretary may release or make public any such statistics in any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such statistics. Nothing in this subsection shall be interpreted or construed to prevent the use for conservation and management purposes by the Secretary, or with the approval of the Secretary, the Council, of any statistic submitted in compliance with a requirement under subsection (a) or (b).”

b. Marine Mammal Protection Act, 16 U.S.C. 1383a(j), (MMPA).

Certain MMPA data are protected from disclosure by section 114(j) which provides: "Any information collected under subsection (c),(d),(e),(f), or (h) of this section shall be confidential and shall not be disclosed except:

(A) to Federal employees whose duties require access to such information;

(B) to State employees pursuant to an agreement with the Secretary that prevents public disclosure of the identity or business of any person;

(C) when required by court order; or

(D) in the case of scientific information involving fisheries, to employees of Regional Fishery Management Councils who are responsible for fishery management plan development and monitoring.... “The Secretary shall prescribe such procedures [See 50 CFR 229.10] as may be necessary to preserve such confidentiality, except that the Secretary shall release or make public any such information in aggregate, summary, or other form which does not directly or indirectly disclose the identity or business of any person.”

c. South Pacific Tuna Act 16 U.S.C. 973j(b).

Certain data are protected from disclosure by section 973j(b) which provides: "Information provided by license holders in Schedules 5 and 6 of Annex 1 of the Treaty shall be provided to the Secretary for transmittal to the Administrator and to an entity designated by the license holder. Such information thereafter shall not be released and shall be maintained as confidential by the Secretary, including information requested under Section 552 of Title 5, unless disclosure is required under court order or unless the information is essential for an enforcement action under section 973c, 973h(c), or 973i of this title, or any other proper law enforcement action."

d. Freedom of Information Act, 5 U.S.C. 552 (FOIA).

Although FOIA generally requires agencies to make records available to any person requester, it does provide specific exemptions for which an agency may deny disclosure as follows:

“...(b) This section does not apply to matters that are... (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes,...”

e. Trade Secrets Act 18 U.S.C. 1905.

The Trade Secrets Act forbids disclosure only to the extent that other laws do not require the information be released. The courts have interpreted its protection to be virtually coextensive with exception of FOIA exemption 4.

The Trade Secrets Act states: “Whoever, being an officer or employee of the United States or of any department or agency thereof, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314), publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $l,000, or imprisoned not more than one year, or both; and shall be removed from office or employment.”

f. Privacy Act, 5 U.S.C. 552a(b).

Privacy Act records are to be handled according to NAO 205-15.

The Privacy Act prohibits disclosure stating:

“...(b) Conditions of Disclosure. No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(8) to a person pursuant to a showing of compelling

circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his authorized

representatives, in the course of the performance of the duties of the General Accounting Office;

(11) pursuant to the order of a court of competent jurisdiction; or

(12) to a consumer reporting agency in accordance with section 3711(f) of title 31.

g. Government in the Sunshine Act 5 U.S.C. 552b(c)

The Sunshine Act provides for open access to meetings held by the government. The Act provides for certain cases when, with prior notice to the public, a meeting may be closed.

Authorized users of NMFS confidential data should be aware of these exceptions when holding an open meeting. The Act states:

"Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to ...(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this title), provided that such statute

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) disclose trade secrets and commercial or financial >information obtained from a person and privileged or confidential;

(5) involve accusing any person of a crime, or formally censuring any person;

(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;..."