Freedom of Information Act

Reply to: Judith Robb Bullock Environmental Division Tel. (919)716-6600 Fax (919) 716-6939

January 4, 2001

Mr. Daniel McLawhorn Office of General Counsel Department of Environment

and Natural Resources 1601 Mail Service Center Raleigh, North Carolina 27699-1601

You requested advice from the Attorney General’s Office regarding the applicability of the Freedom of Information Act (FOIA) exemptions to N.C.G.S. §130A-304(a)(2). Specifically, you requested an explanation of the relevant FOIA exemptions in order for DENR staff to take appropriate action in response to information requests arising from the programs which are subject to Article 9, Chapter 130A.

N.C.G.S. §130A-304(a) states that “the following information received or prepared by the Department in the course of carrying out its duties and responsibilities under this Article is confidential information and shall not be subject to disclosure under N.C.G.S. §132-6: (2) Information that is confidential under any provision of federal or state law.”

A review of the circumstances surrounding the adoption of this statutory language explains the motivation for the inclusion of this provision. The Environmental Protection Agency (EPA) expressed a concern that the North Carolina Public Records Act required disclosure of certain predecisional documents, specifically draft hazard ranking scores preliminary to the listing of National Priorities Sites under CERCLA, which were received by the Department from EPA or which the Department generated in the course of its EPA authorized or delegated Article 9 programs. EPA wanted these documents to remain confidential pursuant to Exemption 5 of FOIA. EPA expressed its unwillingness to continue to share such information with the Department, or to work with the Department in generating such information, if the confidentiality of this information, which was called for pursuant to FOIA, could not be assured by the Department. Thus, when N.C.G.S. §130A304 was rewritten in 1991 (Chapter 745 of the 1991 Session Laws), the exclusion for information that is confidential under any provision of federal law was added at the behest of the Department.

DENR staff should, therefore, review requests for information by determining whether any of the exemptions from disclosure authorized by the North Carolina Public Records Act apply to the information received or prepared by the Department in the course of carrying out its duties and responsibilities under Article 9 of Chapter 130A. DENR staff must also determine whether such information is subject to any of the above exemptions from disclosure pursuant to FOIA, either by identifying whether such information was received by the federal agency with the stipulation that it be kept confidential pursuant to a specific FOIA provision, or by examining the relevant memorandum of agreement or similar document which should identify the types of documents that the federal agency expects to be treated as confidential pursuant to FOIA. Simply put, the information at issue must acquire its confidential status pursuant to federal law.

It would be advisable to conduct a review of all relevant memorandums of agreement or similar documents to insure that language addressing the federal agency’s claim to FOIA protection is clearly set forth. If such language does not exist, it is advisable to revise such documents to reflect that the identified information is entitled to protection pursuant to the proper FOIA exemption.

This advisory opinion sets out general guidelines concerning the application of certain FOIA exemptions. Before access to public records is denied, we recommend that you seek the advice of our office concerning the application of the FOIA exemption to the facts of the particular request.

Very truly yours,

Daniel C. Oakley Senior Deputy Attorney General

Judith Robb Bullock Special Deputy Attorney General