For those of you who have received a Freedom of Information Act (“FOIA”) notice from the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) within the past year, you may – or worse, may not – have noticed new disclosure language. As most of you know, the CPSC has unique regulations that govern its public disclosure of information. Specifically, Section 6(b) of the Consumer Product Safety Act (“CPSA”) prohibits the Commission from disclosing information about a consumer product that identifies a manufacturer or private labeler unless the Commission has taken “reasonable steps” to assure that: 1) the information is accurate; 2) the disclosure of the information is fair in the circumnutates; and, 3) the disclosure of the information is reasonably related to effectuating the purpose of the CPSA. Before discourse of such information, the Commission must provide the manufacturer or private labeler with an opportunity to comment (i.e., by responding in writing to the CPSC’s FOIA notice letters).
In connection with these FOIA notices from the CPSC, the Commission has begun indicating that:
“[u]nder amendments to the FOIA that became effective on June 30, 2016, the Commission must make available in an electronic format “copies of all records, regardless of form or format that have been requested 3 or more times.” See 5 U.S.C. § 552(a)(2)(D)(ii)(1). Therefore, unless you specifically request otherwise, the Commission’s Freedom of Information Officer will post this information in an electronic format to the CPSC’s website upon receipt of the third request for this information.”
This change was made as part of the FOIA Improvement Act of 2016, which was signed into law on June 30, 2016. The federal Freedom of Information Act is applicable to all federal agencies, not just the Commission. Accordingly, this change is not CPSC specific. It does, however, impact disclosure of documents in the possession of the CPSC pursuant to FOIA Requests. In our experience, because most FOIA Requests that we receive come from plaintiffs’ law firms, you are most likely to receive multiple FOIA Requests in connection with CPSC Recall Files as well as Epidemiologic Investigation Reports, Consumer Product Incident Reports and Internet Form Complaints relating to recalled or frequently litigated products.
Although the pre-2016 FOIA did address frequently requested records, the Act previously provided that certain frequently requested records would be made available “for public inspection and copying.” The big change is that records must now be made available in an electronic format after the third request. Having records available in an electronic format will make it much easier for plaintiff’s firms to obtain various records without the need to submit a FOIA Request. The major downside from the standpoint of manufacturers is that with there being no need for a Plaintiffs’ firm to submit a FOIA Request, they will no longer know who is accessing and reviewing these records.
As this change is fairly recent, and in light of the CPSC’s unique regulations, there is an open question as to how it will be applied by the CPSC, with it specific protections from disclosure of manufacturer identifying information. Indeed, unlike the CPSC’s recent notice letter, 5 U.S.C. § 552(a)(2) does not provide that manufacturers can “specifically request” that recordms not be posted in electronic format on the CPSC’s website. In any event, in responding to FOIA Requests as well as CPSC notices of Epidemiologic Investigation Reports, Consumer Product Incident Reports and Internet Form Complaints, you should include a specific request that the records not be posted in electronic format to the CPSC’s website to preserve your objection.
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