Consumers Union of U.S., Inc. v. Consumer Product Safety Com'n

• Decision Date: 22 December 1978
• Docket Number: No. 75-2059,75-2059
• Citation: 192 U.S.App.D.C. 93,590 F.2d 1209
• Parties: , 4 Media L. Rep. 1901 CONSUMERS UNION OF the UNITED STATES, INC. and Public Citizen's Health Research Group, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1209

590 F.2d 1209

192 U.S.App.D.C. 93, 4 Media L. Rep. 1901

CONSUMERS UNION OF the UNITED STATES, INC. and Public

Citizen's Health Research Group, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION et al.

No. 75-2059.

United States Court of Appeals, District of Columbia Circuit.

Dec. 22, 1978.

Alan B. Morrison and Diane B. Cohn, Washington, D. C., for appellants Consumers Union of the U. S. and Public Citizens Health Research Group, filed a supplemental memorandum.

Leonard Schaitman and Frederic D. Cohen, Attys., Dept. of Justice, Washington, D. C., for appellee Consumer Product Safety Commission, filed a supplemental memorandum.

Harry L. Shniderman and James M. McHaney, Jr., Washington, D. C., for appellees Aeronutronic Ford Corp. and GTE Sylvania, Inc.; Robert W. Steele and Alan M. Grimaldi, Washington, D. C., for appellee General Elec. Co.; Bernard G. Segal, Charles C. Hileman, III, and Deena Jo Schneider, Philadelphia, Pa., for appellee RCA Corp.; J. Wallace Adair, Washington, D. C., for appellee Admiral Corp.; Stephen B. Clarkson, Washington, D. C., for appellees The Magnavox Co. and Zenith Radio Corp.; Nancy L. Buc, Washington, D. C., for appellee Matsushita Elec. Co.; James M. Johnstone, Washington, D. C., for appellee Motorola, Inc.; William L. Dickey, Washington, D. C., for appellee Sharp Electronics Corporation; Lawrence R. Walders, Washington, D. C., for appellee Toshiba-America, Inc.; William F. Patten and D. Clifford Crook, III, Washington, D. C., for appellee Warwick Electronics, Inc.; filed a supplemental memorandum.

Before WRIGHT, Chief Judge, and BAZELON and ROBINSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

At the core of this litigation ¹ is appellants' challenge ² under the Freedom of Information Act (FOIA) ³ to the Consumer Product Safety Commission's failure to disclose data concerning accidents attributable to the operation of television sets. When their cause was first before us, we reversed the District Court's ruling that no case or controversy was presented. ⁴ That determination had been premised on the Commission's acknowledged willingness to release the data save for a ban imposed thereon by a preliminary injunction awarded television manufacturers by the District Court for the District of Delaware in a reverse-FOIA suit involving the same information. ⁵ We held that the Delaware action, to which appellants were not parties, was no obstacle to their effort in the District Court here. ⁶ We reasoned that a preliminary injunction is designed merely to preserve the status quo ante pending final decision, and " 'is not an adjudication of rights in any proper sense of the term . . . .' " ⁷ Because the Delaware court had entered an order "closing out" the case before any final stage had been reached, we concluded that the Delaware proceeding was not "an insuperable barrier to the suit at bar." ⁸

We later were informed that the Delaware action had not really been terminated, but that the "closing out" order was apparently a means merely of placating the periodic call for statistics reflecting judicial efficiency in processing caseloads. ⁹ In denying rehearing, we noted that appellants had still not been added as parties to the Delaware proceedings, and explained that "(s)ince all necessary parties are before the District Court here, there appears no reason why the litigation should not proceed here particularly since this is the venue authorized by the FOIA." ¹⁰

Our prior opinions spurred the manufacturers to renew vigorously their pursuit of a judgment on the merits in Delaware, and appellants made no effort to have the District Court here enjoin them from that course. And the Commission, at long last, moved in the Delaware court for a change of venue to the District of Columbia, but added no alternative motion to join the FOIA requesters in the Delaware case in which, we are now told, their rights have been fully and finally adjudicated. The Delaware court denied transfer primarily on the ground that, though the Commission faced the possibility of inconsistent outcomes on the merits, "(t)he time for the Commission to have moved for a transfer of these cases was in the early stages of this litigation in 1975 before all the effort and work had been expended here." ¹¹

While a petition to the Supreme Court for a writ of certiorari in this case was pending, the Delaware court issued a permanent injunction. ¹² The Supreme Court subsequently granted certiorari and remanded the case to us "for further consideration in light of the permanent injunction." ¹³ Thus we are now brought face-to-face with the issue we had earlier reserved: Does a judgment in favor of information-suppliers in a reverse-FOIA suit bar requesters not parties thereto from litigating their contention that the Freedom of Information Act mandates disclosure? ¹⁴ The answer, we think, becomes clear once one investigates the interrelationship of the Act and reverse-FOIA suits in light of traditional principles governing preclusion of subsequent litigation.

I. THE RATIONALES FOR FOIA AND REVERSE-FOIA SUITS

Before the Freedom of Information Act was adopted, official dissemination of information was frequently marked by caprice, ¹⁵ and suits to obtain information or to forestall its release met with "far from uniform" ¹⁶ judicial treatment. ¹⁷ The Act was intended to rationalize agency disclosure policies ¹⁸ by providing a mechanism for balancing the public's "right to know" against the agency's interest in preserving confidentiality. ¹⁹ If a court finds that the Act applies to material for which a request has been properly made, ²⁰ that is the end of the matter; the material Must be disclosed, ²¹ for the Act effectuates a congressional judgment that in those circumstances no public or private interest in secrecy outweighs the benefits attending public access. ²² Moreover, in determining whether the Act is operative, the legislative command that disclosure be the rule and exemptions be narrowly construed ²³ must be sedulously observed. But Congress in the same breath specified classes of information to which the Act and its policy of openness "do( ) not apply." ²⁴ When a court finds that requested material falls into one of these categories, and resultantly that its divulgence is not compelled by the Act, the propriety of voluntary disclosure by the agency must hinge on reconciliation with such other law as is pertinent whether statute, regulation, the administrative "common law" or general principles of equity. ²⁵

Some of these residual legal rules may endow private parties with legally cognizable interests in the confidentiality of exempted information; others may bestow on some a greater entitlement to information than the Act itself gives the general public. ²⁶ Since the agency's purposes will only coincidentally correspond with those of nongovernmental parties, it would be folly to entrust these often-critical private interests ²⁷ to unreviewable bureaucratic discretion. This court has accordingly held that when an agency asserts its intention to comply with a demand for information, parties who would be aggrieved by compliance may sue for a declaration whether that release would be lawful. ²⁸ But such litigants must first pass through the needle's eye of the Freedom of Information Act, ²⁹ for if the Act calls for disclosure they have, of course, no right whatsoever to confidentiality. ³⁰ Only if the Act does not govern need the court examine other sources of law which may prohibit dissemination, give the agency judicially reviewable or unreviewable discretion to release or retain, or even mandate disclosure, depending on the circumstances. ³¹

Reverse-FOIA suits therefore are no blight upon the landscape of the law, but the propriety of their role in any scenario must be carefully considered. Enforcement of such rights of confidentiality as federal law might otherwise recognize must not be allowed to choke the free flow of data contemplated by Congress in the Freedom of Information Act. Surely such an obstruction would in interposed if a judgment adverse to the agency in a reverse-FOIA action were permitted to bar later FOIA suits for the documents in question when no one interested in obtaining the material was a party to the earlier litigation. In our view, no such preemption is warranted, as this case tellingly exemplifies.

II. THEORIES FOR PRECLUSION OF SUBSEQUENT FOIA SUITS

Federal courts in different jurisdictions may sometimes reach conflicting conclusions on the duties of an administrative agency, but normally without placing it in an impossible dilemma or bringing on a direct clash of judicial power. A serious conundrum, however, arises when, as here, the subject matter is information and the dispute is over whether it should be disclosed to the public. Once released pursuant to judicial decree, the data cannot be bottled up within the court's geographical area; with modern communications, information made public at any one point may soon be available throughout the country, often within moments. By the same token, when a court orders an agency to retain information, its edict is absolutely useless unless it stops agency action everywhere. Consequently, the first court to decide in either a FOIA or a reverse-FOIA suit will have pronounced a judgment that might reach across the Nation, or, on the other hand, might not have any practical effect even in its own jurisdictional domain.

That is exactly the situation here. The Delaware proceeding began, and the Commission was temporarily enjoined, before the appellant-requesters filed their own action in the District of Columbia seeking disclosure. By the time appellants sued, the District Court here knew that should the litigation before it continue, a decision contrary to that of the Delaware court might be reached, and that the Commission could not...