Fisher v. Renegotiation Board

• Decision Date: 10 November 1972
• Docket Number: No. 71-1031.,71-1031.
• Citation: 473 F.2d 109
• Parties: Marilyn M. FISHER et al., Appellants, v. The RENEGOTIATION BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 109 (1972)

Marilyn M. FISHER et al., Appellants, v. The RENEGOTIATION BOARD.

No. 71-1031.

United States Court of Appeals, District of Columbia Circuit.

Argued April 19, 1972.

Decided November 10, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. H. Cabanne Howard, pro se.

Mr. Michael H. Stein, Atty., Dept. of Justice, for appellee. Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Walter H. Fleischer, Atty., Dept. of Justice, were on the brief for appellee. Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before FAHY, Senior Circuit Judge, SIMON E. SOBELOFF,^* Senior Circuit Judge, United States Court of Appeals for the Fourth Circuit, and MacKINNON, Circuit Judge.

FAHY, Senior Circuit Judge:

The case arose in the District Court on complaint of plaintiffs-appellants under the Freedom of Information Act (the Act), 5 U.S.C. § 552 (1970). Appellants, law students enrolled in a clinical legal education seminar, seek disclosure by the Renegotiation Board (the Board) of three categories of documents regarding eight named corporations that have entered into national defense contracts with certain Departments or agencies of the United States government.¹ At the Board level, as will be explained, appellants' request was substantially denied. In the District Court appellants sought to compel disclosure. The court granted the Board's motion for summary judgment, giving no reasons. The appeal challenges the action of the District Court.

I

Congress charged the Renegotiation Board with the responsibility of eliminating excessive profits earned on contracts between national defense contractors and the United States. 50 U.S.C. App. § 1217 (1970). Those holding contracts subject to the Renegotiation Act are required to submit to the Board various forms detailing receipts, accruals, cost and profits relating to the performance of such contracts. 50 U.S.C.App. § 1215(e) (1) (1970). If it appears on the basis of these reports that excessive profits may have been earned, the Board is authorized to enter into renegotiation proceedings to "endeavor to make an agreement with the contractor or subcontractor with respect to the elimination of excessive profits. . . ." 50 U.S.C.App. § 1215(a) (1970), as amended (Supp. I, 1971). If no agreement is reached during these informal negotiations, the Board shall enter an order determining the amount of excessive profits. 50 U.S.C.App. § 1215(a) (1970), as amended (Supp. I, 1971). Upon entry of such an order, a contractor may file a petition with the Court of Claims for a de novo proceeding to redetermine the amount of excessive profits. 50 U.S.C. App. § 1218 (1970), as amended (Supp. I, 1971).²

II

Under section 552(a) (2) of the Freedom of Information Act each agency must make available for public inspection and copying in accordance with published rules inter alia "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases. . . ." Pursuant to this section, appellants seek disclosure of certain Unilateral Orders, Statements of Determination and the Agreements to Eliminate Excess Profits. That these documents come within the category of "final opinions" is not questioned. Appellants seek a second and a third category of documents pursuant to section 552(a) (3) of the Act, which requires disclosure of "identifiable records." The second category comprises the following information forms submitted to the Board from the eight named contractors from July 1, 1964, to June 30, 1969: the Standard Form of Contractors Report for Renegotiation, Statements of Nonapplicability of the Renegotiation Act, and Reports of Self-Exemption. In the third category are transcripts or minutes of meetings held in connection with the agreements to eliminate excessive profits.

III

Our decisions interpreting the Act require the courts to be hospitable to disclosure, Bristol-Myers v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971), especially where no problem of identification of information requested is involved. See Irons v. Schulyer, 151 U.S.App.D.C. 23, 465 F. 2d 608 (1972). The exceptions to disclosure are to be narrowly construed. Soucie v. David, supra. It follows that if the trial court decides the agency is not required to respond to a request for information under the Act the court must identify the exemption which supports non-disclosure. Bristol-Myers v. FTC, supra; Soucie v. David, supra; Ackerley v. Ley, 137 U.S.App.D.C. 133, 420 F. 2d 1336 (1969).

IV

We consider now the request for disclosure of the final orders and opinions, the first category. In granting the Board's motion for summary judgment, though no reasons were stated, the District Court apparently relied upon Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App.D.C. 147, 425 F.2d 578 (1970), as authorizing disclosure of the contents of the documents with deletion by the Board of details identifying the contractors. Such deletions, it appears, were made on the assumption either that Grumman afforded protection to anonymity per se, or that the opinions and orders contained information of a confidential character within Exemption 4³ and that such confidentiality could be protected by such deletions. The Board had contended in Grumman that the opinions and orders involving the fourteen contracts were exempt from disclosure "because they include data submitted `in confidence' to the Board by defense contractors," Grumman, supra, 138 U.S.App.D.C. at 149, 425 F.2d at 580. The Grumman court, however, held that Congress did not intend to exempt an entire document merely because it contained some confidential information, the primary purpose of the Act being served by maximum disclosure consistent with the statutory exemptions. This purpose was deemed fulfilled as the case was there presented by deleting the identifying details, with disclosure of the balance of the information in the opinions and orders. The court stated: "should data which falls within Exemption (4) appear in any Board opinion or order . . . the interests of confidentiality of Exemption 4 can be protected by striking identifying details prior to releasing the document," (footnotes omitted), Grumman, supra, 138 U. S.App.D.C. at 149-150, 425 F.2d at 580-581. Appellants contend that Grumman authorizes such deletions, however, only if the other contents of the document are in fact independently confidential⁴ within the meaning of Exemption 4, which they dispute is the case. Hence we are now faced with a direct challenge both to the confidentiality of the identification of the contractors per se and to the confidentiality of the commercial and financial information in the requested documents. While we cannot fault the Board or the District Court in the present case in adopting an understandable construction of Grumman which would permit the deletion of identifying details, we do not give Grumman an interpretation which preserves the anonymity per se of the contractors with the government. The question is one of confidentiality under Exemption 4. Identifying details of these contractors do not so qualify in and of themselves. As stated in footnote 10 of the Grumman opinion, 138 U.S.App.D.C. at 150, 425 F.2d at 581, it is required that "justification for the deletion be fully explained in writing." Only if the information in an opinion or order is independently confidential within the meaning of Exemption 4 or, in the rare case where the name or other identifying details may be used to reconstruct confidential information in conjunction with information to be disclosed by the Board, should identifying details be deleted. This court said in Bristol-Myers, supra, 138 U.S.App.D.C. at 25-26, 424 F.2d at 938-939:

the statutory scheme does not permit a bare claim of confidentiality to immunize agency files from scrutiny. The District Court in the first instance has the responsibility of determining the validity and extent of the claim, and insuring that the exemption is strictly construed in light of the legislative intent. The court may well conclude that portions of the requested material are protected, and it may be that identifying details or secret matters can be deleted from a document to render it subject to disclosure. These judgments are possible only after careful consideration of the particular documents in question . . . (footnote omitted).

On the remand of this case, therefore, the District Court should first determine in an in camera proceeding whether the commercial and financial data contained in the requested opinions and orders, with details identifying the contractors not deleted, were independently confidential within the meaning of Exemption 4. If the court finds that any of such information is exempt from disclosure, then the deletion of the identifying details which have been made by the Board shall not be disturbed, since such information has already been disclosed in this case. If, on the other hand, the court finds that none of the information is independently exempt from disclosure, then the court shall order disclosure of the identifying details previously deleted.

V

We now consider the request for disclosure of the information forms, namely, the Standard Form of Contractor's Report for Renegotiation, Statement of Non-Applicability, and the data required to be set forth in the Contractor's Report of Self-Exemption. These documents, comprising the second category, are submitted by the contractors and do not, like Board orders and opinions, represent governmental action. The Board contends that these documents are protected from disclosure by reason of Exemption 4 as confidential commercial and financial information received from persons outside the Government. We apply to these documents...