It is a decision well worth looking at when it comes to the current approach to the interpretation of exemption clauses. The facts The dispute arose from a challenging project to regenerate the port in Barry in South Wales. Contamination and pollution were recognised as potential problems at the site.
Exemption 4 Freedom of Information Act Guide, May Exemption 4 Exemption 4 of the FOIA protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential. Its very existence encourages submitters to voluntarily furnish useful commercial or financial information to the government and it correspondingly provides the government with an assurance that such information will be reliable.
The exemption also affords protection to those submitters who are required to furnish commercial or financial information to the government by safeguarding them from the competitive disadvantages that could result from disclosure.
FDA, 3 has adopted Exemption clause narrow "common law" definition of the term "trade secret" that differs from the broad definition used in the Restatement of Torts. In Public Citizen, the term "trade secret" was narrowly defined as "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.
To do so, the information must be commercial or financial, obtained from a person, and privileged or confidential. For example, the D.
Circuit reasoned that "[s]uch a quid-pro-quo exchange between governmental entities does not constitute a commercial transaction in the ordinary sense. Circuit found, the requested "owl-sighting data itself [was] commercial neither by its nature having been created by the government rather than in connection with a commercial enterprise nor its function as there [was] no evidence that the parties who supplied the owl-sighting information [had] a commercial interest at stake in its disclosure.
Circuit was "unpersuaded" that Exemption 4 applied. Circuit found that research designs submitted as part of a grant application were not "commercial," despite claims that "[t]heir misappropriation," which "would be facilitated by premature disclosure, [would] deprive[ the researcher] of the career advancement and attendant material rewards in which the academic and scientific market deals.
Circuit held that if that interest is "founded on professional recognition and reward, it is surely more the interest of an employee than of an enterprise" and so is beyond the reach of Exemption 4. Circuit noted that it certainly was possible for a given grantee "to have a commercial or trade interest in his research design," but it emphasized that "the burden of showing" such an interest "was on the agency.
Circuit concluded that in that case, the agency had entirely failed to "carr[y] its burden on this point.
The term "person" refers to a wide range of entities, 40 including corporations, banks, state governments, agencies of foreign governments, and Native American tribes or nations, who provide information to the government.
Documents prepared by the government can still come within Exemption 4, however, if they simply contain summaries or reformulations of information supplied by a source outside the government, 45 or contain information obtained through a plant inspection. In earlier years, courts based the application of Exemption 4 upon whether there was a promise of confidentiality by the government to the submitting party, 49 or whether the information was of the type not customarily released to the public by the submitter.
Morton, 51 long considered to be the leading case on the issue, which significantly altered the test for confidentiality under Exemption 4. In National Parks, the Court of Appeals for the District of Columbia Circuit held that the test for confidentiality was an objective one.
Circuit declared in National Parks that the term "confidential" should be read to protect governmental interests as well as private ones, according to the following two-part test: Circuit expressly reserved the question of whether any other governmental interests -- such as compliance or program effectiveness -- might also be embodied in a "third prong" of the exemption.
Seventeen years later, in a surprising development, D.
Circuit had "endorsed the National Parks definition many times," thus compelling them to follow it as well. Circuit could have an opportunity to consider whether the definition of confidentiality set forth in National Parks -- and followed by the panel majority in Critical Mass -- was indeed faithful to the language and legislative intent of Exemption 4.
Circuit issued its en banc decision in Critical Mass. After examining the "arguments in favor of overturning National Parks, [the court] conclude[d] that none justifies the abandonment of so well established a precedent.
Circuit went on to "correct some misunderstandings as to its scope and application. Circuit remarked that it had had numerous occasions to address the applicable standards to be used under Exemption 4, but by far "[t]he judgment of the court sitting en banc in Critical Mass [was its] most significant statement on the subject.
NRC, a seven-to-four majority of the Court of Appeals for the District of Columbia Circuit established two distinct standards to be used in determining whether commercial or financial information submitted to an agency is "confidential" under Exemption 4.
Morton, 72 were confined "to the category of cases to which [they were] first applied; namely, those in which a FOIA request is made for financial or commercial information a person was obliged to furnish the Government. Circuit announced an entirely new test for the protection of information that is "voluntarily" submitted: Such information is now categorically protected provided it is not "customarily" disclosed to the public by the submitter.
Circuit first examined the bases for its decision in National Parks and then identified various interests of both the government and submitters of information that are protected by Exemption 4.
Circuit found that when submission of the information is "compelled" by the government, the interest protected by nondisclosure is that of ensuring the continued reliability of the information.
Circuit then noted that the Supreme Court had "encouraged the development of categorical rules" in FOIA cases "whenever a particular set of facts will lead to a generally predictable application. Circuit held that it was reaffirming the National Parks test for "determining the confidentiality of information submitted under compulsion," but was announcing a categorical rule for the protection of information provided on a voluntary basis.
Circuit concluded its opinion by observing the objection raised by the requester in the case that the new test announced by the court "may lead government agencies and industry to conspire to keep information from the public by agreeing to the voluntary submission of information that the agency has the power to compel.
NRC, 90 is the distinction that the court drew between information "required" to be submitted to an agency and information provided "voluntarily. Circuit rendered its first decision containing an extensive analysis of Critical Mass just three years ago, in a case that did "not involve a typical voluntary information submission," but instead involved what the court characterized as a "mistaken submission.
National Highway Traffic Safety Administration, concerned an agency "Information Request" that was issued to airbag manufacturers and importers, which "appeared mandatory on its face.This article briefly looks at the role, nature, and effect of exemption clauses, disclaimers and indemnities (collectively referred to as ‘clauses’ herein after) in South Africa..
A brief overview. A clause excluding or limiting the liability on the part of a person or company contained in a written agreement is referred to as an exemption clause, and when it is displayed by way of notice.
The defendants could rely upon the clause, for a number of reasons including the fact that the wording of the clause was clear and the parties had equal bargaining power when making the contract. It is a matter of construction whether an exemption clause covers the breach. Apr 02, · Suggested language for organizing documents for corporations and associations seeking recognition of exemption from federal income taxation under IRC section (c)(3).
If you want to file for a property tax exemption, you may have a couple of different options: Through an exemption, the City releases you from paying part or all of your property taxes. If you want to file for a property tax exemption, you may have a couple of different options: (Clause 22) $ A veteran, or the surviving spouse of a.
Exemption Clause Question Essay. This is a question concerning on exclusion clause - Exemption Clause Question Essay introduction. Exclusion clause is a clause in a contract or term which appears to exclude or restrict a liability or a legal duty which would otherwise arise.
Exemption clause – faxed quotation not including same – whether fax to be construed as including same nonetheless – whether ‘ticket’ cases apply – whether reasonable steps taken to bring to attention of recipient of fax – whether consequent quasi-mutual assent.