§ 1504.204 - Factors governing designation of information as “business”.

(a) Proprietary nature. “Business” information is proprietary, commercial or financial information, the release of which may substantially impair the competitive position of the person who supplied it, whether an ANGTS sponsor or another. In the majority of cases, the ANGTS sponsor will incur substantial costs to develop or purchase numerous studies, plans, designs, methods, systems, etc., associated with project completion. While not “sensitive” information, these documents nonetheless possess some value; that is, the sponsors might at some time find a willing buyer for the information.

(b) Treatment. “Business” information generally comes within FOIA exemption b(4), but the OFI is not committed necessarily to resisting its public disclosure. Instead, the OFI will balance the economic harm of disclosure against the public interest supporting the access request. In so doing, the OFI will first notify the submitter of “business” information that a request for access has been made or that the OFI on its own initiative intends to disclose it, as detailed in § 1504.208. The submitter will then have the burden of proving to the OFI that the requested information is truly valuable and that disclosure will reduce or eliminate that value.

(c) Factors against disclosure. While OFI disclosure of such information would not, strictly speaking, impair competitive position, it might reduce or eliminate the potential for revenues from a future sale. Beside this general economic impact, the OFI will consider the following ANGTS-specific factors militating against disclosure:

(1) For “business” information merely held by an ANGTS sponsor but owned by a third party, such as procurement-related information of a prospective vendor or contractor, public disclosure might be shown to impair the sponsor's ability to procure future goods and services at a reasonable price.

(2) To the extent that “business” information is utilized by the sponsors for ANGTS construction, the associated costs will be capitalized for rate base inclusion. As such, the consumers of Alaskan gas will pay for such “business” information. The revenues from any subsequent sale of this “business” information should be used as a credit to rate base, thereby benefitting the gas consumer, who has been paying for such information. Therefore, when ruling on requests for public disclosure of the sponsors’ “business” information, the OFI will consider, on the one hand, the likelihood and magnitude of future gas consumer rate reduction if access is denied and, on the other hand, the purpose to be served if access is granted.

(3) While the OFI's authority to gather information is expansive (see subpart A of this part), public disclosure of certain types of “business” information might increase submitter resistance and thereby increase the OFI's need to use compulsory rather than voluntary process for subsequent information gathering. This eventuality could impair the OFI's ability to expedite ANGTS construction, something which the OFI would try to avoid.

(d) Factors favoring disclosure. (1) Disclosure is the statutory preference under FOIA.

(2) For “business” information related to its overall role of administering the equal opportunity program for ANGTS preconstuction and construction (see 43 CFR part 34 and 10 CFR part 1534), the OFI will accord the maximum public access permitted within relevant legal parameters, as described in this subpart.