Ninth Circuit Creates Split Re Proper Test for Government Waiver of Confidentiality under FOIA

Freedom of Information—Exemptions

Watkins v. U.S. Bureau of Customs and Border Protection
 (79 U.S.L.W. 2520) (May 2011)

What is the proper test for determining whether the government has waived confidentiality under the Freedom of Information Act? The Ninth Circuit says that when the government freely discloses to a third party confidential information without limiting the third-party's ability to disseminate it, the government waives the ability to claim an exemption to a FOIA request for the disclosed information. The D.C. Circuit, however, previously adopted the public domain test, which asks whether the information was preserved in a public record.