Confidential documents submitted to government agencies have significant costs. Confidential documents don’t contribute to public knowledge. Persons face significant costs and complications to access confidential documents. Moreover, the receiving agency has to follow special, relatively expensive procedures for storing and archiving confidential documents. Both the cost of confidentiality to the public and to the agency occur in the future and not primarily to the agency group directly working on the proceeding in which a confidential document is filed. Hence requests for confidentiality typically are not evaluated well with respect to their total cost over time to the public and to the agency. Government agencies often grant documents confidential status when the filing party makes only a pro forma request for confidentiality, a request that lacks substantial, case-specific justification. The costs of such action should be recognized and properly addressed.
A strong presumption against confidentiality and an expiration of confidentiality within a fixed period could substantially lessen the stock of confidential documents. As a judgment standard for granting confidential document status, the requesting party could be required to demonstrate with a preponderance of evidence that the document for which confidentiality is requested is essential to evaluating the issues in the proceeding and that filing it publicly would likely cause major harm to the filer. The expiration of confidentiality within a fixed period, e.g. three years, should not be waivable at the time of granting confidentiality. Only a few months before the expiration of a document’s confidential status should the filing party be allowed to petition for an extension of confidential status. That petition should also confront a strong presumption against confidentiality.
Attention to intra-organizational behavior is important to limit appropriately confidential filings. An agency group outside of the group working a proceeding is needed to uphold accountability for confidential requests. Otherwise, the exigencies of work on a proceeding would tend to trump more general, more diffuse concerns about the volume of confidential documents. Similarly, not allowing the expiration of confidential status to be waivable at the time of the grant of confidentiality would help to ensure that actual circumstances, not hypothetical arguments about future effects and more pressing immediate concerns, control the actual expiration of confidentiality.
A strong presumption against confidentiality and expiration of confidentiality within a fixed period would probably enhance rather than lessen the factual quality of agency proceedings. Public documents are more amenable to review and criticism by a wide range of outside parties. Limiting confidential filings broadens possibilities for participation in proceedings and in relevant public discussion that helps to inform proceedings. Limiting confidentiality would limit possibilities for obscuring poor quality data under confidential status. Moreover, high uncertainty about future industry developments and rapid change characterizes high-tech industries. For such industries, expiration of confidentiality in a period as short as three years would not likely affect significantly any particular company’s interests. Expiration of confidentiality would, however, contribute to better understanding of a past business, and thus help to promote more informed general judgments about current policy issues and future businesses.