DeLorme Pub. Co. v. NOAA OF US DEPT. OF COMMERCE, Civil No. 95-94-P-H.

• Decision Date: 12 March 1996
• Docket Number: Civil No. 95-94-P-H.
• Citation: 917 F. Supp. 867
• Parties: DeLORME PUBLISHING COMPANY, INC., Plaintiff, v. The NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION OF the UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
• Court: U.S. District Court — District of Maine

917 F. Supp. 867

DeLORME PUBLISHING COMPANY, INC., Plaintiff, v. The NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION OF the UNITED STATES DEPARTMENT OF COMMERCE, Defendant.

Civil No. 95-94-P-H.

United States District Court, D. Maine.

March 12, 1996.

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Gordon H.S. Scott, Eaton, Peabody, Bradford & Veague, P.A., Augusta, ME, for Plaintiff.

Sherri L. Wattenbarger, Richard Visek, Elizabeth A. Pugh, Federal Programs Branch, Civil Division, U.S. Department of Justice, Washington, DC, David R. Collins, Assistant United States Attorney, Portland, ME, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

HORNBY, District Judge.

I have ruled that the National Oceanic and Atmospheric Administration's ("NOAA") electronic "raster" compilations of its nautical charts — compilations that can be read by computers — are "agency records" subject to disclosure under the Freedom of Information Act ("FOIA") unless a specific exemption applies. DeLorme Pub. Co. v. NOAA, 907 F.Supp. 10 (D.Me.1995). I now conclude that NOAA may withhold its raster compilations under FOIA Exemption 3 and the Federal Technology Transfer Act for five years from the date of their development.

I. BACKGROUND

The case is presented on cross-motions for summary judgment, but there are no material facts genuinely in dispute. In October 1993, NOAA, through its National Ocean Service, initiated the process of selecting a private partner to participate in a cooperative research and development agreement ("CRADA") to produce an electronic nautical charting system. Such public-private cooperation is authorized and encouraged by the Federal Technology Transfer Act ("FTTA"). 15 U.S.C. § 3710a. A number of firms, including the plaintiff DeLorme, expressed an interest in the project, but NOAA ultimately selected BSB Electronic Charts ("BSB") as its private partner. NOAA and BSB signed an initial CRADA in August of 1994. As part of its anticipated contribution to the CRADA, NOAA created 202 digitized raster compilations of nautical charts during 1993 and 1994 by scanning the color negatives used to create NOAA's paper charts. Another 21 raster files were created between August and November 1994, where BSB's role was to "work side-by-side with Agency personnel ... performing scanning, processing and related activities." Enabnit Decl. at ¶ 18. In November of 1994, DeLorme sent NOAA two FOIA requests seeking disclosure of all the raster compilations and certain documents relating to the CRADA. NOAA refused to produce any of the raster compilations and some of the documents. As a result, DeLorme brought this FOIA lawsuit.

NOAA claims that three FOIA exemptions apply to the digitized versions of its nautical charts and permit it to refuse disclosure. Specifically, NOAA argues that the raster compilations are exempt from disclosure under Exemption 3, 5 U.S.C. § 552(b)(3), because the FTTA authorizes their protection; Exemption 2, § 552(b)(2), because they relate to "the internal personnel rules and practices" of NOAA; and Exemption 5, § 552(b)(5), because they are "intra-agency memorandums" that would not ordinarily be obtainable through discovery in a lawsuit against the Agency.

As to the documents requested, NOAA argues that the portions it has withheld are exempt from disclosure under both Exemption 5 and Exemption 6, § 552(b)(6), which protects against unwarranted invasions of privacy.

II. FOIA EXEMPTION 3

FOIA Exemption 3 allows an agency to withhold records that are "specifically exempted from disclosure by a statute" other than FOIA, as long as the statute: "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3).

NOAA contends that the FTTA is an exempting statute. 15 U.S.C. § 3710 et seq. As amended in 1989, the FTTA contains a provision, similar to FOIA Exemption 4, limiting disclosure, in certain circumstances, of "commercial ... information that is privileged or confidential." 15 U.S.C. § 3710a(c)(7). Examining an agency's Exemption 3 claim ordinarily requires analysis of whether the statute in question is an "exempting statute" within the meaning of Exemption 3 and, if so, whether the requested information is "included within" that statute's protection, Aronson v. IRS, 973 F.2d 962, 964 (1st Cir.1992), but DeLorme has not contested NOAA's assertion that the FTTA qualifies and therefore has waived any arguments to the contrary.

Because the FTTA is an Exemption 3 statute, "FOIA de novo review normally ends," and review of the agency's interpretation of the statute's protection "must take place under more deferential, administrative law standards." Id. at 967; see also Church of Scientology Int'l v. Dept. of Justice, 30 F.3d 224, 235 (1st Cir.1994). Those standards are governed by the Chevron doctrine and typically require courts to give considerable deference to an agency's construction of an ambiguous statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Strickland v. Comm'r Dept. Human Services, 48 F.3d 12 (1st Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 145, 133 L.Ed.2d 91 (1995).

However, "the deference accorded to an administrative agency's interpretations depends on the extent to which the matters at issue depend peculiarly on the agency's field of expertise." McCuin v. Sec'y of Health and Human Services, 817 F.2d 161, 168 (1st Cir.1987); see also Strickland, 48 F.3d at 18 ("Courts afford varying degrees of deference to agency interpretations in varying circumstances."). The Supreme Court has stated that, when Congress does not entrust a single agency with the task of administering a statute, "there is ... not the same basis for deference predicated on expertise" that the Court found in Chevron. Bowen v. American Hosp. Ass'n, 476 U.S. 610, 643 n. 30, 106 S.Ct. 2101, 2120 n. 30, 90 L.Ed.2d 584 (1986). In Bowen, the Court did not defer to an agency's interpretation of a statute protecting the rights of handicapped persons because the statute affected all government agencies, and 27 agencies had promulgated regulations under the statute. Id. Similarly, the statute at issue in this case, the FTTA, has broad application and has been implemented by more than a dozen agencies. To defer to NOAA's interpretation of the statute would thus "lay the groundwork for a regulatory regime in which either the same statute is interpreted differently by different agencies or the one agency that happens to reach the courthouse first is allowed to fix the meaning of the text for all." Rapaport v. Dep't of Treasury, Office of Thrift Supervision, 59 F.3d 212, 216-17 (D.C.Cir.1995) (declining to accord Chevron deference to agency's position where statute is administered by several other agencies), cert. denied, ___ U.S. ___, 116 S.Ct. 775, 133 L.Ed.2d 727 (1996). Therefore, I continue to proceed de novo.¹

Congress enacted the FTTA in 1986 "to improve the transfer of commercially useful technologies from the Federal laboratories and into the private sector" to strengthen the nation's military and economic competitiveness. S.Rep. No. 283, 99th Cong., 2d Sess. 1 (1986), reprinted in 1986 U.S.C.C.A.N. 3442. Toward that end, the Act "authorizes a broad range of cooperative research and development arrangements where there is a mutual interest between the laboratory mission and ... private sector organizations." Id. at 10, 1986 U.S.C.C.A.N. at 3451.

In 1989, Congress amended the FTTA to provide, with respect to cooperative research and development ventures, two types of protection from disclosure for "commercial ... information that is privileged or confidential." 15 U.S.C. § 3710a(c)(7). First, the Act prohibits an agency from disclosing such information if it "is obtained in the conduct of research or as a result of activities under this chapter Title 15, Ch. 63, Technology Innovation from a non-Federal party participating in a CRADA." § 3710a(c)(7)(A). Second, the act allows an agency to withhold information for up to five years if that information "results from research and development activities under this chapter and that would be ... commercial ... information that is privileged or confidential if the information had been obtained from a non-Federal party participating in a CRADA." § 3710a(c)(7)(B).² In other words, if qualifying information is obtained from the CRADA's private partner — in this case BSB — it cannot be disclosed. However, if qualifying information is obtained from the agency and would have been protected if it had come from the private partner, the agency has the discretion to withhold it, but only for a five-year period. Congress concluded that such protection was necessary because "the threat of disclosure under FOIA of commercial information, developed under the CRADA or otherwise, has been the biggest reason to date for companies declining to enter CRADAs." H.R.Conf. Rep. No. 331, 101st Cong., 1st Sess. 761 (1989), reprinted in 1989 U.S.C.C.A.N. 977, 1150.

A. The 202 Raster Files Created in Anticipation of the CRADA

NOAA maintains that it may withhold for five years under § 3710a(c)(7)(B) the 202 raster compilations it created prior to signing the CRADA because: (1) the raster files are information resulting from "research and development activities"; (2) those activities were "conducted under" the Technology Innovation chapter of Title 15; and (3) the raster files would be "commercial" and "confidential" information if obtained from the private partner. DeLorme contests each assertion.

1. Research and Development Activities

The FTTA does not define "research and development." That term is defined elsewhere in Title 15, however, to include, "a systematic application of knowledge toward the production of useful...