542 F.2d 1190 (4th Cir. 1976), 74-1801, Westinghouse Elec. Corp. v. Schlesinger

Docket Nº:74-1801 to 74-1803, 74-2047 and 74-2048, 75-1268 to 75-1271.
Citation:542 F.2d 1190
Party Name:WESTINGHOUSE ELECTRIC CORP. and its subsidiary, Fraser & Johnston Company, Appellees, v. James R. SCHLESINGER, Secretary, U. S. Department of Defense, et al., Appellants, Concerned Workers et al., Intervenor-Defendants. WESTINGHOUSE ELECTRIC CORPORATION and its subsidiary, Fraser & Johnston Co., Appellants, v. James R. SCHLESINGER, Secretary, U. S.
Case Date:September 30, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1190

542 F.2d 1190 (4th Cir. 1976)

WESTINGHOUSE ELECTRIC CORP. and its subsidiary, Fraser &

Johnston Company, Appellees,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellants,

Concerned Workers et al., Intervenor-Defendants.

WESTINGHOUSE ELECTRIC CORPORATION and its subsidiary, Fraser

& Johnston Co., Appellants,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellees.

WESTINGHOUSE ELECTRIC CORPORATION and its subsidiary, Fraser

& Johnston Co., Appellees,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Defendants,

Concerned Workers et al., Appellants.

WESTINGHOUSE ELECTRIC CORP. and its subsidiary, Fraser &

Johnston Company, Appellees,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Defendants,

Concerned Workers et al., Intervenors-Appellants.

WESTINGHOUSE ELECTRIC CORP. and its subsidiary, Fraser &

Johnston Company, Appellees,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellants,

Concerned Workers et al., Defendant-Intervenors.

UNITED STATES STEEL CORPORATION, Appellant,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellees.

UNITED STATES STEEL CORPORATION, Appellee,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellants.

GENERAL MOTORS CORPORATION, Appellant,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellees.

GENERAL MOTORS CORPORATION, Appellee,

v.

James R. SCHLESINGER, Secretary, U. S. Department of

Defense, et al., Appellants.

Nos. 74-1801 to 74-1803, 74-2047 and 74-2048, 75-1268 to 75-1271.

United States Court of Appeals, Fourth Circuit

September 30, 1976

Page 1191

[Copyrighted Material Omitted]

Page 1192

[Copyrighted Material Omitted]

Page 1193

[Copyrighted Material Omitted]

Argued Dec. 4, 1975.

Page 1194

Guy F. Driver, Jr., Greenville, S. C. (Robert T. Thompson, Robert O. King, Thompson, Ogletree & Deakins, Greenville, S. C., on brief), for Westinghouse Elec. Corp. and General Motors Corp.

Donald L. Dotson, Pittsburgh, Pa., Alison K. Schuler, Albuquerque, N. M., Hunton Williams, Gay & Gibson, Washington, D. C., on brief, for Westinghouse Elec. Corp.

Eugene L. Hartwig, Detroit, Mich., on brief, for General Motors Corp.

Burt A. Braverman, Washington, D. C. (Alan Raywid, Cole, Zylstra & Raywid, Washington, D. C., and S. G. Clark, Jr., Pittsburgh, Pa., on brief), for United States Steel Corp.

Paul Blankenstein, Atty., App. Section, Civ. Div., United States Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Carla A. Hills, Asst. Atty. Gen., New York City, William B. Cummings, U. S. Atty., Norfolk, Va., Brian P. Gettings, U. S. Atty., Arlington, Va., and Leonard Schaitman, Atty., App. Section, Civ. Div., United States Dept. of Justice, Washington, D. C., on brief), for James R. Schlesinger, Secretary of Defense, and others.

Thomas R. Asher, Washington, D. C. (Collot Guerard, Washington, D. C., Stephen E. Ronfeldt, Oakland, Cal., Russell Galloway, Student Intern, and Marcia Hughes, Student Intern, on brief), for Concerned Workers, Robert Wooley, Legal Aid Society of Alameda County (California) and Council on Economic Priorities.

Charles E. Hill, Washington, D. C., and Daniel G. Clement, Pasadena, Cal., on brief, as amicus curiae for National Organization for Women and Consumer Federation of America.

Page 1195

Before RUSSELL and WIDENER, Circuit Judges, and THOMSEN, Senior District Judge. [*]

DONALD RUSSELL, Circuit Judge:

The plaintiffs in these three actions are government contractors, seeking injunctive and declaratory relief against the disclosure of certain information filed by them with the Office of Federal Contract Compliance (OFCC), as required under regulations issued by the Secretary of Labor pursuant to Executive Order 11,246, 1 as amended by Executive Order 11,375. 2 Two of the actions were consolidated for trial in the District Court, 3 and heard by one judge; the third action proceeded independently in the same court and was heard by another judge. In the three actions, however, plaintiffs were granted similar partial protection from disclosure of the information in question. 4 The defendants appeal from the denial of the motions to dismiss and to the grant of any relief herein; the plaintiffs cross-appeal from the denial of protection from disclosure of all the material filed by them under the requirements of the Executive Orders. All three cases involve, so far as material, like facts and like legal issues. For this reason, we have consolidated them on appeal and dispose of them in this opinion.

We affirm.

The information, the disclosure of which is the subject of controversy, was supplied under the provisions of an Executive Order, and the regulations issued thereunder, which required a government contractor, such as the plaintiffs, to file, with respect to any plant or facility engaged in performing work under a government contract, an Affirmative Action Program (AAP) and an Equal Employment Opportunity Report (EEO-1). These reports are to be filed with the contracting agency having responsibility for the contract. They are to include extensive information on staffing patterns, pay scales, actual and expected shifts in employment, promotions, seniority and related matters as well as forecasts of future employment, goals, time-tables and future employment projections, promotion and utilization of minorities and females. They embrace, also, an analysis of the employer's success in meeting such goals. All the plaintiffs filed such reports. The reports of the plaintiff United States Steel covered its Youngstown, Ohio plant, and the American Bridge Division plant at Gary, Indiana; the reports of the plaintiff General Motors dealt with its plants at Danville, Illinois, and Bedford, Indiana; and the plaintiff Westinghouse filed reports with respect to its plant at East Pittsburgh, Pennsylvania, and its Fraser & Johnston Co. subsidiary plant at San Lorenzo, California. In submitting such reports, all the plaintiffs did so under a claim of confidentiality. The reports, prepared on Standard Form 100, bore the following governmental promise or guarantee of confidentiality: "(A) ll reports and information obtained from individual reports will be kept confidential

Page 1196

as required by Section 709(e) of Title VII." 5

Third parties made requests of the defendants for disclosure under the Freedom of Information Act (FOIA) 6 of the AAP's and EEO-1's filed with them by the several plaintiffs. The defendants advised the plaintiffs of the requests and of a preliminary determination that the FOIA's and OFCC's disclosure rules required that the requested material, with certain identified deletions, be made available, but that before the information would be released, the plaintiffs would be afforded an opportunity to present any claim that the information requested was exempt from disclosure under the FOIA and the appropriate administrative regulations. The plaintiffs submitted their objections to the disclosure, claiming that the requested information was not disclosable under the terms of 5 U.S.C. 552(b)(3), (4), (6) and (7), 18 U.S.C. § 1905, and 42 U.S.C. § 2000e-8(e), as well as 41 C.F.R. 60-1.1, et seq. of the Department of Labor's own regulations. 7 The defendants responded by advising the plaintiffs that under the FOIA and the regulations issued thereunder, the defendants were obliged, absent judicial intervention, to release the information, subject to certain specified deletions. These actions to enjoin, and for a declaratory judgment that the material was exempt under the FOIA and disclosure thereof forbidden under applicable statutes and regulations followed. The District Court, finding federal jurisdiction under § 1331, 28 U.S.C., granted injunctive relief but denied a declaratory judgment. In reaching its conclusion, the court made, among others, this finding of fact:

"This Court finds from the evidence presented that the AAPs and EEO-1s in question contained confidential commercial or financial information which would not customarily be released to the public by the corporate plaintiffs, and that such information would be of substantial value to the plaintiff's competitors in performing cost-price analyses of plaintiffs' pricing practices, in monitoring plaintiffs' development of new products and processes, in identifying plaintiffs' customers in their consumption needs, in analyzing plaintiffs' production by product line, and in developing competitive bidding strategies to be used against the plaintiffs; and that disclosure of this information would both impair the Government's ability to obtain necessary information for its administration of the Executive Orders and Title 7 of the Civil Rights Act and would

Page 1197

cause substantial harm to the competitive position of the plaintiffs." 8

The decision of the District Court enjoining disclosure herein rests to a substantial extent on a construction of the FOIA. 9 This statute mandates the release by public officials of information in their custody, subject to certain exemptions specifically enumerated in the Act itself. 10 If the information sought to be disclosed under the Act "fall(s) within one of the Act's exempt categories, * * * the Act 'does not apply' to such documents." NLRB v. Sears, Roebuck & Co. (1975), 421 U.S. 132, 147-8, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29; Charles River Park "A" Inc. v. Department of H. & U.D. (1975), 171 U.S.App.D.C. 286, 519 F.2d 935, 942. 11 So far as exempt...

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