Guidance on Release of Fair Market Value Information to the Public

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

September 26, 2014

In Reply Refer To:
3400 (320) P

EMS TRANSMISSION 12/19/2014
Instruction Memorandum No. 2014-158
Expires:  09/30/2015

Program Area:  Coal Management.

Purpose:  This Instruction Memorandum provides Bureau of Land Management (BLM) guidance regarding what coal pre-sale fair market value (FMV) estimate information must not be released to the public due to the sensitive or proprietary nature of the information.    

Policy/Action:  The BLM will post public versions of non-sensitive and non-proprietary coal lease sale FMV-related documents on publicly available websites after a successful lease sale, consistent with law and regulation (See http://www.blm.gov/wo/st/en.html).  The BLM may release non-sensitive and non-proprietary coal pre-sale FMV estimate information after consultation with the appropriate Freedom of Information Act (FOIA) Officer.  This information will be available immediately following each coal lease sale or lease modification offer. 

If a request is received for documents or information other than information initially designated for public release (such as a press release, or public brochure), refer the requestor to the State Office FOIA Officer to handle the request.

Specific guidance on how records and information are to be managed by BLM employees is contained in the U.S. Department of the Interior (DOI) FOIA; Records and Testimony regulations (43 CFR Part 2), and BLM manuals MS-1220 (Records and Information Management) and MS-1278 (External Access to BLM Information).  All records relating to the FMV determinations for coal lease and lease modification tracts, including information gathered from the public and applicants[1], the BLM’s geologic, engineering, economic and valuation analyses, reports, and associated data, will be safeguarded against disclosure, if appropriate, and managed in accordance with DOI regulations and manuals. 

While much of the data and information used to develop a pre-sale estimate of value have proprietary and confidential characteristics, it is BLM policy that the Federal coal leasing processes be as transparent as the law and regulations allow.  To this end, while developing geologic, engineering, economic and valuation reports supporting pre-sale estimates, refer to previously redacted reports to consider how best to structure the report so that sensitive, confidential, and proprietary data can be easily redacted to provide non-sensitive and non-proprietary information in the report to the public. 

The FOIA, as amended, requires agencies to provide agency records to requesters, except for material that is exempt from disclosure.  Exemptions are pursuant to one or more of the FOIA’s nine statutory exemptions, found at 5 U.S.C. 552(b) (1)–(9).  The exemptions that are likely to be most relevant with regard to documents related to FMV estimates are exemptions 3, 4, and 5.

FOIA Exemption 3 allows the withholding of information prohibited from disclosure by another Federal statute such as the Mineral Leasing Act of 1920 (see 43 CFR 2.70).  Exemption 4 allows withholding of trade secrets and commercial or financial information obtained from a person that is privileged or confidential.  Exemption 5 protects privileged agency documents. 

FOIA Exemption 9 protects from disclosure “geological and geophysical information and data, including maps, concerning wells.”  The recent decision in NRDC, Inc. v. Dep't of the Interior, 2014 U.S. Dist. LEXIS 108396 (S.D.N.Y., Aug. 6, 2014), clarified that Exemption 9 applies only to wells used to extract liquids or gases and does not include geologic and geophysical information from drilling cores and boreholes used for coal exploration. 

All FOIA exemptions must be considered to see if one or more exemptions apply to the information requested.   The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.   

The United States Department of Justice Guide to the Freedom of Information Act (see http://www.justice.gov/oip/foia-guide.html) is a comprehensive legal treatise on the FOIA.  The Guide includes detailed discussions of the FOIA’s procedural requirements, nine exemptions, and litigation considerations.  Each section contains a detailed analysis of the key judicial opinions issued on the FOIA. 

Timeframe:  Implement immediately.

Budget Impact:  Minimal.   

Background:  The United States Government Accountability Office (GAO) Report to Congressional Requesters, COAL LEASING:  BLM Could Enhance Appraisal Process, More Explicitly Consider Coal Exports, and Provide More Public Information (GAO-14-140), was published December 18, 2013, and publicly released February 4, 2014.  This Instruction Memorandum is being developed to address GAO recommendation 7 to provide guidance regarding what FMV estimate information is considered sensitive or proprietary and must not be provided to the public. 

Manual/Handbook Sections Affected: This policy will be incorporated into the Economic Evaluation of Coal Properties Handbook H-3070-1.

Coordination: State, district and field office coal specialists, Washington Office Solid Minerals Division, Washington Office FOIA Coordinators, and the Solicitor’s Office coordinated the development of this guidance.

Contact:  If you have any questions concerning the content of this Instruction Memorandum, please contact me at 202-208-4201, or your staff may contact Mitchell Leverette, Division Chief (WO-320) at 202-912-7113 or mleveret@blm.gov; or John A. Lewis, 202-912-7117, or j35lewis@blm.gov.

Signed by:                                                                   Authenticated  by:

Michael Nedd                                                             Robert M. Williams

Assistant Director                                                       Division of IRM Governance,WO-860

Energy, Minerals, and Realty Management