Association for Women in Science v. Califano

• Decision Date: 21 October 1977
• Docket Number: No. 75-2139,75-2139
• Citation: 566 F.2d 339,185 U.S.App.D.C. 19
• Parties: ASSOCIATION FOR WOMEN IN SCIENCE, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of United States Department of Health, Education and Welfare, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 339

566 F.2d 339

185 U.S.App.D.C. 19

ASSOCIATION FOR WOMEN IN SCIENCE, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of United States

Department of Health, Education and Welfare, et al.

No. 75-2139.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 19, 1976.

Decided Oct. 21, 1977.

Gladys Kessler, Washington, D. C., for appellant.

Judith S. Feigin, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Before DANAHER, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

Association for Women in Science (AWIS) appeals under 28 U.S.C. § 1292(b) from an order of the district court (Green, J.) denying its motion to compel compliance with a notice for inspection and copying of executed conflict of interest forms on file with the Department of Health, Education and Welfare (HEW). The principal issue on appeal is whether these forms are privileged, and therefore not subject to discovery under the Federal Rules of Civil Procedure. For the reasons outlined below, we hold that the forms are privileged, and thus we affirm.

I

Under the Public Health Service Act ¹ and appropriate departmental regulations, ² HEW and the National Institutes of Health (NIH) administer a program which provides grants to educational or training institutions desiring to work on matters relating to the diagnosis, prevention, and treatment of diseases with public health significance. ³ Grants can be awarded only if recommended by the national advisory council in each Institute of Health. ⁴ These councils, and their various committees, are composed of distinguished members of the medical and scientific communities whose function is to exercise "peer review" over pending grant applications. ⁵

In March 1974, AWIS ⁶ brought suit against the Secretary of HEW and various directors of NIH in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief to remedy alleged illegal awarding and funding of training grants. As pertinent here, AWIS alleged that the grants were awarded in a manner violative of the applicable conflict of interest standards set forth in Executive Order No. 11222, 3 C.F.R. 306 (1964-1965 Compilation). In particular, AWIS charged that individuals whose own applications were pending, or who were affiliated with institutions with applications pending, were allowed to sit on the training committees which initially reviewed competing applications. The Government denied any impropriety in the conduct of the program.

The discovery process established that HEW Form 474, entitled "Confidential Statement of Employment and Financial Interests," the conflict of interest form required of special government employees, had the most complete listing of the professional, institutional, and corporate affiliations of those individuals sitting on the training committees. A notice for inspection and copying of the Forms 474, pursuant to rule 34 of the Federal Rules of Civil Procedure, was filed by AWIS. ⁷ The Government objected on the grounds that the forms were explicitly labeled "confidential," were protected from disclosure by regulation, and, as personnel files, were within exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6) (1970). ⁸ When AWIS filed a motion to compel compliance with the notice for inspection and copying, ⁹ the Government again objected. In addition to its previous grounds for nondisclosure, the Government maintained that the Forms 474 were not subject to discovery because they were not relevant to any issue before the court, were within exemption 4 of the FOIA as "commercial or financial information obtained from a person and privileged or confidential," and were protected by the Privacy Act of 1974, 5 U.S.C. § 552a (Supp. V 1975). ¹⁰

Judge Green subsequently issued an order denying the motion by AWIS to compel compliance. She stated that

it appear(s) to the Court that the disclosure of these documents would impair the government's ability to acquire this information in the future, and that the information was given with the expectation it would remain confidential, National Park(s) and Conservation Association v. Morton, (162 U.S.App.D.C. 223), 498 F.2d 765 (D.C. Cir.1974), see 5 U.S.C. § 552(b)(4) and that the disclosure of these documents would constitute a clearly unwarranted invasion of privacy, see 5 U.S.C. § 552(b)(6) . . .. ¹¹

AWIS then filed a motion for reconsideration of the order, or for certification pursuant to 28 U.S.C. § 1292(b) (1970). ¹² Judge Green denied the motion for reconsideration, but granted the motion for certification. ¹³ This appeal ensued.

II

At the outset, it must be emphasized that AWIS sought the Forms 474 through the discovery process and not through an FOIA request. As we shall discuss below, any matter which is relevant to the subject matter involved in the pending action can be discovered, unless it is privileged. The Government's assertion of exemptions 4 and 6 of the FOIA as defenses to production, therefore, must be read as a claim of privilege, and as such is clearly inapposite. The FOIA neither expands nor contracts existing privileges, nor does it create any new privileges. Chamber of Commerce of the United States v. Legal Aid Society of Alameda County, 423 U.S. 1309, 1310-11, 96 S.Ct. 5, 46 L.Ed.2d 14 (Douglas, Circuit Justice, 1975); Verrazzano Trading Corp. v. United States, 349 F.Supp. 1401, 1403 (Cust.Ct.1972). But see Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 30, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (Douglas, J., dissenting). As intimated in its brief, ¹⁴ and explicitly stated at oral argument, the Government wisely has abandoned the FOIA argument on appeal. ¹⁵ Our analysis, therefore, will proceed based upon traditional discovery theory.

As mentioned above, a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .." Fed.R.Civ.P. 26(b)(1). While the various discovery rules "are to be accorded a broad and liberal treatment . . . limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege." Hickman v. Taylor, 329 U.S. 495, 507-08, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947).

The relevancy of the Forms 474, only lightly challenged by the Government below, ¹⁶ is hardly open to dispute, especially under the liberal standard to be applied at the discovery stage. ¹⁷ The existence of conflicts of interest at the time training grants were awarded is the linchpin of the appellant's argument, and it is difficult to imagine anything more probative of this issue than the Forms 474. The sole question to be answered, therefore, is whether the forms were privileged.

In addition to those privileges which are available to all litigants, the United States has a number of privileges which are unique to it. Chief among these is executive privilege, the claim of which has constitutional underpinnings. United States v. Nixon, 418 U.S. 683, 703-06, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The Supreme Court has recognized this privilege for documents that contain military or diplomatic secrets, United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), or the deliberations of high executive officials, United States v. Nixon. Lower court decisions have also recognized executive privilege for intra-governmental documents reflecting policy deliberations. Machin v. Zuckert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff'd mem. sub nom. V. E. B. Carl Zeiss, Jena v. Clark, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967).

There are three other privileges which have been claimed exclusively by the government. These privileges are based primarily on specific governmental interests, rather than on constitutional principles. The first is the informer's privilege, recognized in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which protects from disclosure the identity of persons who furnish information to law enforcement officials. The governmental interest in this instance is the protection of the flow of information concerning possible violations of the law. The second privilege is the law enforcement evidentiary privilege, Black v. United States, --- U.S.App.D.C. ---, at --- - ---, 564 F.2d 531, at 541-547, No. 75-2039 (1977), which is based primarily on the harm to law enforcement efforts which might arise from public disclosure of government investigatory files. The third privilege, with which we are concerned in this appeal, has been called both the required reports privilege, ¹⁸ and the official information privilege. ¹⁹ This privilege covers a wide range of situations in which the government seeks to protect from disclosure confidential reports which it has received from citizens. It is directly analogous to the informer's privilege, for it is based on the governmental interest in protecting the flow of information concerning the subject of the report in question. Because the terms "required reports" and "official information" are somewhat broad in their import, ²⁰ however, we prefer to use a more precise expression the confidential report privilege in our analysis.

For the confidential report privilege even to be considered, the confidentiality requirement must be statutorily based. It will not suffice that the government merely has held the report out as confidential, by marking the report form "confidential," for example. ²¹ See Ackerly v. Ley, 137...