General Dynamics Corp. v. Marshall, 77-1192
| Decision Date | 27 April 1978 |
| Docket Number | No. 77-1192,77-1192 |
| Citation | 572 F.2d 1211 |
| Parties | 16 Fair Empl.Prac.Cas. 898, 16 Empl. Prac. Dec. P 8128, 24 Cont.Cas.Fed. (CCH) 82,140, 3 Media L. Rep. 2211 GENERAL DYNAMICS CORPORATION, Appellee, v. Ray MARSHALL, Secretary, United States Department of Labor, Rogers C. B. Morton, Secretary, United States Department of Commerce, Philip J. Davis, Director, Office of Federal Contract Compliance Programs, United States Department of Labor, Robert J. Blackwell, Assistant Secretary for Maritime Affairs, United States Department of Commerce, John M. Heneghan, Director, Office of Civil Rights, Maritime Administration, United States Department of Commerce, William P. Clements, Deputy Secretary, United States Department of Defense, Frederick A. Schreiber, Director, Contracts Compliance, Defense Contract Administration Services Region, Los Angeles, California, Defense Supply Agency, United States Department of Defense, Lt. Gen. Wallace H. Robinson, Jr., Director, Defense Supply Agency, United States Department of Defense, and James W. Cisco, Administration Chief, Contracts Administration Services, Defense Contract Administration Services, Defense Supply Agency, United States Department of Defense, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frederic D. Cohen, Atty., App. Section, Civ. Div., Dept. of Justice, Washington, D.C. (argued), Barry A. Short (former U.S. Atty.), St. Louis, Mo., Barbara Allen Babcock, Asst. Atty. Gen., and Leonard Schaitman, App. Section, Civ. Div., Dept. of Justice, Washington, D.C., on brief, for appellants.
Richard C. Coburn (argued), Thomas E. Douglass, Adrian L. Steel, Jr., St. Louis, Mo., and Richard T. Franch, Jenner & Block, Chicago, Ill., on brief, for appellee.
Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
General Dynamics Corporation seeks injunctive relief to prevent disclosure of portions of the Affirmative Action Programs (AAP's) of General Dynamics' Electric Boat and Convair Divisions, filed with federal agencies as a condition to the award of government contracts. Third parties had requested the disclosure of the information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
After receiving notice of administrative decisions to disclose much of the requested information, General Dynamics filed suit in the federal district court seeking to permanently enjoin the disclosures. The court recognized that General Dynamics had a valid cause of action arising under FOIA and 18 U.S.C. § 1905. After considering stipulated facts and affidavits filed in support of cross motions for summary judgment, the district court determined that the contested portions of the AAP's were within the scope of 5 U.S.C. § 552(b)(3), which exempts from mandatory disclosure under FOIA information "specifically exempted from disclosure by statute." The basis of the court's determination was its finding that disclosure of the information was prohibited by 18 U.S.C. § 1905. The district court further found that the information in question was within the scope of 5 U.S.C. § 552(b)(4), which exempts confidential commercial and financial information from the provisions of FOIA. The district court granted a permanent injunction prohibiting disclosure of the contested portions of the AAP's of both the Electric Boat and Convair Divisions of General Dynamics, apparently construing the FOIA exemptions as mandatory provisions requiring nondisclosure. General Dynamics Corp. v. Dunlop, 427 F.Supp. 578 (E.D.Mo.1976).
We find that the district court erred in construing the statutory exemptions of FOIA to be mandatory and in undertaking de novo review of the administrative determination to disclose the information in question. We reverse and remand for further proceedings.
On June 24, 1975, a request for a copy of the Electric Boat Division's AAP was sent to the Maritime Administration. The Maritime Administration informed General Dynamics of this request and the procedures to be followed in objecting to the proposed disclosure. Electric Boat Division objected to the disclosure of parts of the AAP, asserting that the information was exempt from disclosure under FOIA, 5 U.S.C. § 552(b)(4), and regulations of the Office of Federal Contract Compliance Programs (OFCC), 41 C.F.R. § 60-40.3(a)(1) and (2), as confidential commercial and financial information. 1 The Maritime Administration determined that disclosure of the information was proper despite Electric Boat's objections and this decision was upheld by the OFCC on appeal with certain minor exceptions for information relating to specific employees.
The Convair Division AAP was requested from the Defense Supply Agency (DSA) on June 2, 1975. Convair Division objected to the disclosure of parts of the AAP on the grounds that the information was "confidential and proprietary data" exempt from disclosure under FOIA. The DSA determined that the contested information did not fall within any FOIA exemption and therefore disclosure was mandated under the Act. The decision to disclose much of the information was affirmed on appeal to the OFCC, although that agency's determination was apparently based on OFCC regulations rather than the provisions of FOIA.
As a government contractor, General Dynamics is required by Executive Order 11246, 30 Fed.Reg. 12319 (1965), Executive Order 11375,32 Fed.Reg. 14303 (1967), to take affirmative action to eliminate discriminatory employment practices. Regulations promulgated by the Secretary of Labor require that certain government contractors prepare and make available for administrative inspection AAP's providing information on past and projected employment of women and minorities. 41 C.F.R. §§ 60-1.40, 60-2.1. The regulations delegate administrative responsibility for enforcing the Executive Order to the Director of the Office of Federal Contract Compliance Programs. 41 C.F.R. § 60-1.2. The Director, in turn, has designated certain "compliance agencies" which have primary responsibility for monitoring compliance with the provisions of the Executive Order. 41 C.F.R. §§ 60-1.3, 60-1.6. The Maritime Commission and the DSA are the compliance agencies for the Electric Boat and Convair Divisions, respectively.
The provisions of FOIA are applicable to records submitted to the compliance agencies, and in addition the Secretary of Labor has promulgated regulations setting out guidelines for the disclosure of information received by the OFCC or its compliance agencies from government contractors. See 41 C.F.R. § 60-40.1 et seq. These regulations are designed to implement FOIA and reflect the policy of the OFCC to disclose information to the public and cooperate with other agencies and private parties seeking to eliminate discrimination in employment. 2
The FOIA requires agencies to disclose upon request information not specifically exempt under 5 U.S.C. § 552(b). See Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The Act expressly creates a cause of action in favor of parties requesting information to enjoin agencies from withholding that information. 5 U.S.C. § 552(a)(4)(B). It is likewise clear that only information which falls within the exemptions listed in FOIA may be withheld by the agency despite a request for disclosure. However, the Act does not create a cause of action for submitters of information to enjoin an agency from disclosing information within the exemptions listed in § 552(b). In plain terms, FOIA is simply not applicable in reverse cases since the statute unequivocally states that the Act "does not apply" to matters of the type specified in the exemptions. 5 U.S.C. § 552(b).
Despite this clear statutory language, courts have reached conflicting decisions as to the permissive or mandatory nature of the exemptions and the existence of a cause of action, based on FOIA itself, to enjoin proposed disclosure of information within the exemptions. See Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977) (); Union Oil Co. v. FPC, 542 F.2d 1036, 1045 (9th Cir. 1976) (); Pennzoil Co. v. FPC, 534 F.2d 627, 630 (5th Cir. 1976) (); Charles River Park "A", Inc. v. HUD, 171 U.S.App.D.C. 286, 519 F.2d 935, 941 (1975) ( exemptions permissive). 3
In the most recent decision, Chrysler Corp. v. Schlesinger, 565 F.2d 1172 (3d Cir. 1977), petition for cert. filed sub nom. Chrysler Corp. v. Brown, 46 U.S.L.W. 3438 (U.S. Dec. 27, 1977) (No. 77-922), the Third Circuit reviewed the legislative history of FOIA exemptions. In a well-reasoned opinion by Judge Gibbons the court held that both the Act and its legislative history clearly establish that there exists no statutory mandate of nondisclosure of exempt information nor any cause of action to prevent disclosure of such information. 4 We agree. Any other construction would controvert "the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, supra, 425 U.S. at 361, 96 S.Ct. at 1599.
Such a construction is in harmony with the principal statement by the Supreme Court as to the effect of FOIA exemptions:
Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme and represents the congressional...
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