Chesapeake Bay Foundation, Inc. v. U.S. Dept. of Agriculture

• Decision Date: 28 December 1993
• Docket Number: No. 92-5174,92-5174
• Citation: 11 F.3d 211
• Parties: , 24 Envtl. L. Rep. 20,228 CHESAPEAKE BAY FOUNDATION, INC., Appellee, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 211

11 F.3d 211

304 U.S.App.D.C. 167, 24 Envtl. L. Rep. 20,228

CHESAPEAKE BAY FOUNDATION, INC., Appellee, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Appellant.

No. 92-5174.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 18, 1993.

Decided Dec. 28, 1993.

Rehearing and Suggestion for

Rehearing In Banc ^* Denied March 11, 1994.

On Appeal from the United States District Court for the District of Columbia (No. 89cv01943).

Charles F. Flynn, Asst. U.S. Atty., Washington, DC, argued the cause for appellant. With him on the briefs were J. Ramsey Johnson, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Gregory L. Poe, Washington, DC, argued the cause for appellee. With him on the brief were Mitchell Rogovin and Randal S. Milch, Washington, DC.

Before: WALD, EDWARDS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The Chesapeake Bay Foundation, Inc. ("CBF"), is a not-for-profit corporation whose principal goal is to pursue projects designed to restore and maintain the biological integrity of the Chesapeake Bay and its living resources. In 1988, in furtherance of its conservation mission, CBF sought data on public pesticide use in the state of Maryland. Upon determining that data concerning pesticide use by Maryland state agencies were unavailable to the public, CBF turned to the United States Department of Agriculture ("USDA") for the information. It appears that USDA possessed raw data on Maryland pesticide use obtained through informational surveys submitted to the Federal Government by Maryland state agencies.

Initially, CBF made an informal request for release of the survey data. Officials at USDA responded that they could not release the data because the agency was prohibited by statute from publicly disclosing records that would identify the "person" who had supplied the information. See 7 U.S.C. Sec. 2276(a) (1988). However, USDA officials offered to seek waivers from the state agencies that had provided the survey data if CBF would pay the postage to mail the waiver requests. CBF then filed a formal request for the data under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552(a)(4)(E) (1988). This FOIA request was denied by USDA on the grounds that the information sought could not be released without waivers, which USDA again offered to seek if CBF would pay the postage.

CBF refused USDA's offers to seek waivers and instead filed a lawsuit to compel the federal agency to release the pesticide data. Without deciding whether CBF was legally entitled to the information, the District Judge urged the parties to seek state agency waivers so as to avoid a trial on the merits. See Trial Transcript, reprinted in Joint Appendix ("J.A.") 37-39. The trial judge then issued an order to the Maryland agencies, requiring state officials to appear in court to raise any objections they might have to USDA's release of the pesticide data. Although the trial judge never explained the basis for his "orders" to state agencies that were not parties to the lawsuit, the solution adopted by the court essentially mirrored USDA's pre-litigation suggestion that waivers be sought. Thus, USDA was required to do nothing more than what it had proposed to do before the lawsuit was filed; and, eventually, all the Maryland agencies waived their confidentiality interests and CBF received the documents. The case was dismissed and the District Court awarded $44,373.07 in attorneys' fees to CBF for having "substantially prevailed" in obtaining release of the requested documents. See Chesapeake Bay Found., Inc. v. United States Dep't of Agriculture, 785 F.Supp. 1030, 1033 (D.D.C.1992).

USDA appeals from the District Court's judgment awarding fees. USDA argues that CBF is not entitled to fees because USDA had a reasonable basis in law for withholding the records CBF sought, and because USDA cooperated in devising a means whereby CBF got what it wanted without compromising USDA's view that section 2276(a) of title 7 prohibited nonconsensual release of these records. We agree with USDA that it had a reasonable basis in law for withholding these records. Because the District Court failed properly to weigh this consideration before deciding whether CBF was entitled to attorneys' fees, we reverse and remand for further consideration.

I. BACKGROUND

CBF brought this lawsuit under FOIA to obtain data held by USDA. According to CBF, data concerning pesticide use by Maryland state agencies were unavailable to the public in 1988. See Affidavit of Patrick H. Gardner, reprinted in J.A. 95. USDA, however, possessed raw data that these agencies had voluntarily provided to the Federal Government concerning their pesticide use. Consequently, CBF sought this information directly from USDA.

The disputed data was collected by USDA through survey forms mailed to Maryland pesticide users, including Maryland public agencies. Trial Transcript, J.A. 17. USDA collected this data under a promise of confidentiality rooted in 7 U.S.C. Sec. 2276(a). That section dictates that information that has been provided in a survey may not be:

(1) use[d] ... for a purpose other than the development or reporting of aggregate data in a manner such that the identity of the person who supplied such information is not discernable and is not material to the intended uses of such information; or

(2) disclose[d] ... to the public, unless such information has been transformed into a statistical or aggregate form that does not allow the identification of the person who supplied particular information.

7 U.S.C. Sec. 2276(a) (1988). USDA has consistently maintained that section 2276(a) shields information provided by both public and private survey respondents, and that 5 U.S.C. Sec. 552(b)(3) ("Exemption 3"), which provides that agency records are properly withheld if they are specifically exempted from disclosure by statute, thus prevents release of such records under FOIA.

Initially, in June 1988, CBF informally requested that USDA release the public agency survey data, but USDA declined to oblige. In July 1988, CBF made a formal FOIA request for "[a]ll unpublished data provided by 129 Maryland public agencies to the National Agricultural Statistics Service ['NASS'] for the compilation of 'Maryland Pesticides Statistics for 1985.' " Letter of Patrick Gardner (Jul. 22, 1988), reprinted in J.A. 9. That request was denied by the Economics Agencies FOIA Officer on August 8, 1988. CBF administratively appealed the denial to NASS on September 21, 1988, and NASS denied that appeal on October 31, 1988, informing CBF that it had the right to judicial review. The June 1988 informal denial and the August 1988 FOIA denial were accompanied by USDA's offer "to obtain individual releases for the survey response forms.... [and] to absorb the administrative costs of contacting the 129 public agencies if Chesapeake Bay Foundation pays the postal costs." See, e.g., Letter from Charles E. Caudill to Patrick Gardner (Aug. 8, 1988), reprinted in J.A. 11. CBF officials did not respond to USDA's offers to seek waivers, apparently believing that the "non-FOIA procedure offered by USDA was unfounded." Affidavit of Patrick H. Gardner, J.A. 96, 98. Accordingly, CBF elected to pursue the pesticide data through litigation.

On July 11, 1989, CBF filed a civil action to obtain the survey data. The parties filed cross-motions for summary judgment, addressing the issues raised under 7 U.S.C. Sec. 2276(a). USDA argued that the survey data were obtained pursuant to promises of confidentiality, thus the information sought was protected from disclosure. Trial Transcript, J.A. 24-37. CBF argued that state agencies were not "persons" within the meaning of section 2276(a), so USDA could not withhold disclosure of the survey data under FOIA Exemption 3. Id. at J.A. 18-19.

At the status call on the motions, the District Judge questioned whether "anybody [had] asked the state whether they would be willing to cough ... up" the survey data. Id. at J.A. 26. USDA explained that it had offered to seek state waivers, but CBF had declined. The District Judge then postponed consideration of the merits of the case and adopted a procedure similar to that originally proposed by USDA:

THE COURT: Let me tell you how we'll handle this thing.... I'm going to say the information will be disclosed within 60 days unless [the state agencies] object.

. . . . .

THE COURT: I'm saying I give you an order that says that this information will be ordered to be turned over under the FOIA and that if you have any objection to that being turned over that you should submit it to the United States District Court within 60 days. Then when we come back in 60 days, we'll look at it. And if it is not there, we turn it over.

With respect to those who don't want it turned over, let's bring them in and find out what the problem is.

Trial Transcript, J.A. 40, 42.

The Government's counsel then expressed her concern that the District Judge appeared to be proposing to release the survey forms without regard to 7 U.S.C. Sec. 2276(a). In other words, counsel pointed out that the state agencies were under no obligation to justify claims of confidentiality. Government counsel noted further that the state agencies were not parties to the action, and that the District Court was not in a position to adjudicate their rights. Id. at J.A. 41, 42. She insisted that unless the agencies waived their interests in the confidentiality of the data, the District Court could not order release of the information without addressing FOIA Exemption 3. The trial judge then appeared to assure counsel that he would not compel involuntary release of the data without an adjudication on the merits:

MS. CURRENT: It sounds like from what I understood, Your Honor, that you're going to issue an order that orders us to turn this over in 60 days...