25. Presence Of Factors Set Forth In 28 C.F.R. 16.26(b)

Subsection (b) of Section 16.26 contains a number of very specific factors that set forth areas where disclosure should not be made. It is the presence or absence of these factors that will trigger whether a disclosure will be authorized at the initial stage (by the USA in a case in which the United States is not a party or by the attorney in charge of the case or matter in a case in which the United States is a party). If this official (called the "responsible official” in the regulations) believes that one or more of these factors is present, he cannot authorize disclosure, but is required to seek higher level review and decision.

The factors in Section 16.26(b) set out those interests that the Department of Justice must prioritize protecting. To some degree they parallel the exemptions from mandatory disclosure set forth in the Freedom of Information Act (5 U.S.C. 552(b)). The factors are:

1. Disclosure would violate a statute, such as the income tax laws, 26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury secrecy rule, Federal Rules of Criminal Procedure 6(e);
2. Disclosure would violate a specific regulation;
3. Disclosure would reveal classified information, unless appropriately declassified by the originating agency;
4. Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection;
5. Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures, the effectiveness of which would thereby be impaired; and
6. Disclosure would improperly reveal trade secrets without the owner's consent.

This list is not to be considered all inclusive. If some other factor should exist in a special case, or at some time in the future, that would lead to adverse consequences similar to those that can be caused by disclosure of an item on the list, that factor would warrant similar treatment. See generally JM 1-6.400 et. seq.

[cited in JM 1-6.240; 1-6.420]

[updated January 2017]