While many patent attorneys spend their career filing patent applications and office action responses with the USPTO, few take advantage of the fact that the USPTO is an administrative agency and thus bound by the Administrative Procedure Act and the Freedom of Information Act. Further, the USPTO appears to try and resist disclosure much more so than other administrative agencies, often denying requests for reasons that have no basis in fact or law. Perhaps because most patent attorneys are not administrative law experts, the USPTO often gets away with such actions. This post analyzes some of the FOIA denials I have received and lays out example arguments that can be used to appeal the USPTO’s decision.
For example, in a recent request for information regarding the actions of a particular Examiner, I asked for a listing of publicly available serial numbers of applications in which this particular Examiner had performed certain actions. Because one cannot search PAIR for the information easily (or at all), I filed a FOIA request with the USPTO. The grounds for denial cited by the USPTO included Exemption 6. Below are some of the arguments used in successfully appealing the USPTO’s denial. These arguments focus on why the records requested do not meet the type of information protected by Exemption 6. Future posts will illustrate arguments against there being any protectable privacy interest in those documents, and confirming that the public interest in disclosure of the documents far outweighs any privacy interest that may exist, if one exists at all.
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The basic purpose of the Freedom of Information Act is to “shed[] light on an agency’s performance of its statutory duties” by facilitating access to and disclosure of government records. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). Indeed, President Obama has directed agencies to “adopt a presumption in favor of disclosure” regarding requests for information under FOIA. Presidential Memorandum for the Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009). Furthermore, under Exemption 6, “the presumption in favor of disclosure is as strong as can be found anywhere in the Act.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)); see also Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1057 (D.C. Cir. 2009) (stating that FOIA’s “presumption favoring disclosure . . . is at its zenith under Exemption 6”). Considered in light of this strong presumption favoring disclosure, a review of FOIA’s relevant statutory language and case law demonstrates that the USPTO FOIA Office is not justified in withholding the requested documents under Exemption 6. The requested documents do not meet the threshold for the type of information protected by Exemption 6.
The requested public patent application files do not meet the threshold for exemption because they are not the type of material intended to be protected by Exemption 6. FOIA exempts from the presumption of disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The requested patent application files are clearly not personnel or medical files, and neither are they “similar files” under the Exemption.
While what constitutes similar files may be interpreted broadly, Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982), nevertheless, information that is not personal in nature has been found not to meet the threshold of Exemption 6. See, e.g., Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008) (“Correspondence does not become personal solely because it identifies government employees.”). This is because at its core, Exemption 6 is intended to protect personal, private information. As the Supreme Court noted, “the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters.” Wash. Post Co., 456 U.S. at 600 (quoting Dep’t of Air Force v. Rose, 425 U. S. 352, 375, n.14 (1976)).
Hence, information that has been found to be “personal” in nature are things such as names of private citizens and personal contact information such as home addresses (e.g., Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 144-45 (D.D.C. 2007) (names, addresses, and phone numbers of consumers who filed complaints with the FTC)), and medical or other intimate information which one would normally consider “personal.” See, e.g., Consumers’ Checkbook Ctr. for the Study of Servs., 554 F.3d 1046 at 1050 (Medicare records). In contrast, information such as the names and work contact information of government employees has been found to fall outside of Exemption 6. See, e.g., Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005) (finding that the names and work telephone numbers of Justice Department paralegals are not “similar to a ‘personnel’ or ‘medical’ file”).
Here, the information requested (publicly available patent application records) is as unlike as could be from any of these items that are normally considered “personal” in nature. In this case, the information requested pertains to official government action taken by a government agent in the ordinary course of his job duties. Given that “the basic purpose of the Freedom of Information Act [is] ‘to open agency action to the light of public scrutiny,’” Reporters Committee for Freedom of the Press, 489 U.S. at 772 (quoting Rose, 425 U. S. at 372), it seems plain that records of the actions of a government employee taken in his or her official capacity do not constitute personal information, but instead fall squarely within the kind of information about agency activities that FOIA was meant to make available.