Alyeska Pipeline Service Co. v. U.S. E.P.A.
| Decision Date | 13 September 1988 |
| Docket Number | No. 87-5381,87-5381 |
| Citation | 272 U.S.App. D.C. 355,856 F.2d 309 |
| Parties | , 272 U.S.App.D.C. 355 ALYESKA PIPELINE SERVICE COMPANY, Appellant v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William H. Allen, with whom Mark H. Lynch and Quinn O'Connell, Washington, D.C., were on the brief for appellant.
Marina Utgoff Braswell, Atty. Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on brief for appellees. Joseph E. diGenova, U.S. Atty., Washington, D.C., also entered an appearance for appellees.
Before ROBINSON, RUTH BADER GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Alyeska Pipeline Service Company seeks release under the Freedom of Information Act (FOIA) 1 of copies of certain of its own corporate records that were provided to the Environmental Protection Agency (EPA) by a third party. EPA has refused to surrender the documents, invoking FOIA Exemption 7(A), which authorizes the withholding of information compiled for law enforcement purposes when the production thereof "could reasonably be expected to interfere with enforcement proceedings." 2 Finding that the documents sought fall within that exemption, and that the District Court's grant of summary judgment in favor of the agency was appropriate, we affirm.
Alyeska operates the Trans-Alaska Pipeline System through which unrefined liquid hydrocarbons produced on Alaska's North Slope are transported to Valdez, Alaska, for loading onto ships. At the Valdez terminal, Alyeska maintains a ballast water treatment (BWT) facility where water is removed from the holds of tankers awaiting loading and is then treated to extract oil, grease, and aromatics before being discharged into Valdez Bay.
Alyeska's BWT facility is the focus of an ongoing EPA investigation into possible violations of a number of environmental laws. 3 In January, 1985, EPA propounded, pursuant to its statutory authority, interrogatories to Alyeska concerning operation of the facility. In late March, EPA received from Charles Hamel, a private citizen, notice of his intent to commence an action to enforce the terms of Alyeska's National Pollutant Discharge Elimination System (NPDES) permit. 4 Subsequently, EPA ordered Alyeska to preserve all of its records pertaining to the facility. In July and November, 1985, EPA issued compliance orders enumerating violations at the BWT facility and requiring Alyeska to correct them. 5
In connection with this investigation, Hamel turned over to EPA certain of Alyeska's corporate records that had been provided to him by Alyeska employees. In February, 1986, Alyeska requested disclosure, pursuant to FOIA, of the documents obtained from Hamel. EPA located 22 responsive documents, consisting of approximately 177 pages, but withheld them in full. The agency relied on Exemption 7 "because [the request was for] investigatory records compiled for law enforcement purposes the disclosure of which would identify the confidential source of these documents and investigative techniques and procedures." 6 Alyeska's administrative appeal was denied. 7
Alyeska filed suit in the District Court in August, 1986. On cross-motions for summary judgment, the court held that EPA's refusal to produce the documents was justified by FOIA Exemption 7(A) because disclosure would interfere with EPA's ongoing law enforcement proceeding against Alyeska. 8 The court found that "Alyeska [was] not fully aware of the scope and focus of the EPA's investigation and that release of the[ ] documents could provide it with important insight in this respect," 9 and thereby impede the agency's enforcement efforts. In addition, the court echoed EPA's concern that production of the records might allow Alyeska to identify the employees who supplied them to Hamel, and thereby subject them to potential reprisals and deter them from providing further information to EPA. 10 Alyeska argued that there was no reason to suspect that it would engage in employee harassment, but the District Court held that it "was not necessary to show that intimidation will certainly result"; 11 rather, it was sufficient to establish that the possibility existed. " 'The danger of witness intimidation,' " the court said, " 'is particularly acute with respect to current employees ... over whom the employer, by virtue of the employment relationship, may exercise intense leverage.' " 12 Accordingly, the court granted summary judgment in favor of EPA. 13
Alyeska argues on appeal that summary judgment was inappropriate because the parties' affidavits conflicted in regard to whether disclosure could reasonably be expected to interfere with EPA's law enforcement proceeding. Alyeska also argues that the District Court did not examine the agency's exemption claim de novo, as required by FOIA. 14 We reject these contentions and affirm.
FOIA's disclosure requirements do not apply to "records or information compiled for law enforcement purposes ... to the extent that [their] production ... could reasonably be expected to interfere with enforcement proceedings." 15 The agency has the burden of demonstrating that the exemption applies. 16 Since Alyeska concedes that the documents in question qualify as "records or information compiled for law enforcement purposes," 17 the remaining question is whether release "could reasonably be expected to interfere with enforcement proceedings." 18
In support of its motion for summary judgment, EPA submitted the affidavit of John Y. Hohn, Associate Counsel for EPA Region 10, who actively participated in the supervision of EPA's investigation of Alyeska. 19 According to the affidavit, EPA's investigation encompasses possible violations of numerous environmental protection statutes, including the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act. 20 Hohn averred that during EPA's investigation, he engaged in "detailed, confidential conversations with Mr. Hamel" during which he "requested that Mr. Hamel provide [Hohn] with documents that pertained to specific allegations of statutory violations by Alyeska that would serve to substantiate portions of his notice of citizen's suit." 21 Hamel thereafter delivered the records at issue, which, according to Hohn, "pertained to the narrow areas of inquiry that I had discussed with Mr. Hamel." 22 Hohn further stated that the materials "constitute but a small portion of the total amount of Alyeska documents Mr. Hamel was prepared to provide to EPA." 23
To demonstrate that release would likely interfere with law enforcement proceedings, the Hohn affidavit asserted that disclosure would "prematurely reveal[ ] to the subject of this ongoing investigation the size, scope and direction of this investigation." 24 Hohn reasoned that because Hamel provided only "a limited number of selected documents in response to my request for certain documents that evidenced particular types of alleged illegal behavior, the mere identification of the specific records submitted would reveal the scope and direction of the investigation to the requester." 25 Put in other words, Hohn's point was that because the materials handed over to EPA were selectively chosen, identification of the documents would expose the particular types of allegedly illegal activities being investigated. 26 Hohn therefore concluded that disclosure could "allow for the destruction or alteration of relevant evidence, and the fabrication of fraudulent alibis." 27
Hohn further averred that revelation of the documents could enable Alyeska to identify the individuals who gave them to Hamel, with the consequence that "these potential witnesses would be less likely to cooperate fully with the EPA." 28 Hohn reasoned that the employees would feel more vulnerable to potential reprisals than other witnesses, and that Mr. Hamel repeatedly emphasized that the employees who provided the records were "fearful of financial and physical retribution from Alyeska if their identities were discovered." 29 Hohn also asserted that release at this time would chill future investigations by discouraging witnesses from providing information.
Hitherto we have realized that it is not enough for an agency to shore up its exemption claim merely with general and conclusory statements regarding the effect of disclosure. 30 In this case, however, the Hohn affidavit does not suffer from such deficiencies, and the justifications it proffers have achieved recognition in Exemption 7 caselaw.
In NLRB v. Robbins Tire & Rubber Company, 31 an employer charged with unfair labor practices sought, in advance of the administrative hearing on those charges, to obtain copies of statements submitted to NLRB by prospective witnesses. The agency denied the request, claiming that prehearing disclosure would interfere with enforcement proceedings, and the Supreme Court upheld the agency's position. The Court noted that in enacting Exemption 7, "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases." 32 The Court observed that "[t]he most obvious risk of 'interference' with enforcement proceedings in this context is that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all." 33 The Court stressed the danger of giving a party litigant earlier and greater access to the agency's case than he would otherwise have, and declared that even without intimidation or harassment a suspected violator with advance access thereto could " ...
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