Ginsburg, Feldman & Bress v. Federal Energy Admin.
| Decision Date | 14 February 1978 |
| Docket Number | No. 76-1759,76-1759 |
| Citation | 591 F.2d 717 |
| Parties | , Energy Mgt. P 26,094, 3 Media L. Rep. 1786 GINSBURG, FELDMAN & BRESS, Appellant, v. FEDERAL ENERGY ADMINISTRATION. District of Columbia Circuit |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James Hamilton, Washington, D. C., with whom David Ginsburg and Fred W. Drogula, Washington, D. C., were on the brief, for appellant.
Michael Kimmel, Atty., Dept. of Justice, Washington, D. C., for appellee. Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Leonard Schaitman and John K. Villa, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellee.
Before MacKINNON, ROBB and WILKEY, Circuit Judges.
Opinion for the court filed by MacKINNON, Circuit Judge.
A partnership of lawyers that represents various clients before the Federal Energy Administration (FEA and the "Agency") brought this suit in the District Court under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B). They request access to certain Agency guidelines and instructions contained in a manual and to various memoranda issued to employees who audit oil refineries regulated by the FEA. A prior request for the same matter had been denied by the Agency. The District Court granted the request in part and denied the remainder. We agree generally with the court's disposition and accordingly affirm its judgment with slight modification.
The FEA is charged with administering the Federal Mandatory Petroleum Price Regulations and various federal laws and regulations relating to the refining of petroleum products. Industry compliance is monitored through periodic audits, and appellants seek to require the FEA to provide them access to the Agency's Guidelines and instructions to these employees. Specifically appellants request access to
any and all manuals, instructions, memoranda, guidelines, training materials, reporters, booklets, and other documents utilized by FEA to train, instruct, direct, guide, or supervise refinery auditors in the performance of their duties, including, but not limited to, the manner in which such audits are to be conducted and the time frame, if any, within (which) such audits are to be completed.
(J.A. 5).
Appellants were unable to state with any more specificity the exact documents they desired to inspect, but the written material which evolved as the target of their general request turned out to be:
(a) an FEA instruction manual for refinery auditors entitled "Basic Refiner Course" and (b) FEA's "Refinery Audit Review Field Audit Guidelines" (as supplemented on February 28, 1975, by the FEA's "Guidelines for Audit Modules") (hereafter, "Guidelines"). . . .
(J.A. 5, 9). Both the Agency and the trial court decided that the "Basic Refiner Course" manual was Not exempt from disclosure. Hence this opinion is concerned solely with the Guidelines.
Appellants base their claim on two legal theories. First, they contend that the Guidelines are subject to disclosure because they "constitute an 'administrative staff manua(l) and instructions to staff that affect a member of the public' such as (are) referred to in 5 U.S.C. 552(a)(2)(C)." (J.A. 6). Second, as an alternative theory, appellants claim that FEA's refusal to produce the Guidelines violated 5 U.S.C. § 552(a)(3), 1 which requires agencies to make most records promptly available to any person whose request for them conforms to published rules and reasonably describes the records requested (J.A. 6).
Appellants' first and principal contention is that the Guidelines are an "administrative staff manual" that the statute requires to be disclosed. The relevant statute provides:
(a) Each agency shall make available to the public information as follows:
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying
(C) Administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale. . . .( 2) A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if
(i) it has been indexed and either made available or published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
5 U.S.C. § 552(a)(2)(C) (Supp. V 1975) (emphasis added).
When enacting this statute, Congress made it clear that it distinguished between manuals relating to "law enforcement matters" and manuals relating to "administrative matters," and that it did not intend to require disclosure of the former. 3 The Senate The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters Rather than to law enforcement matters protects the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action.
Committee Report on this section of the bill repeats the statutory language that "administrative staff manuals and instructions to staff that affect a member of the public" are to be made available, but elsewhere specifically excludes "law enforcement matters" from the disclosure requirement for "administrative matters":
S.Rep. No. 813, 89th Cong., 1st Sess. 2, 7 (1965) (emphasis added).
The House Committee Report reflects the same intent as the Senate Report, but the House version discusses the nature of the intent in greater detail. The House Report specifically states that the legislative intent was to require disclosure of "secret law," and not Agency "guidelines for auditing and inspection":
In addition to the orders and opinions required to be made public by the present law, subsection (b) of S. 1160 would require agencies to make available statements of policy, interpretations, staff manuals, and instructions that affect any member of the public. This material is the end product of Federal administration. It has the force and effect of law in most cases, yet under the present statute these Federal agency decisions have been kept secret from the members of the public affected by the decisions.
As the Federal Government has extended its activities to solve the Nation's expanding problems and particularly in the 20 years since the Administrative Procedure Act was established the bureaucracy has developed its own form of case law. This law is embodied in thousands of orders, opinions, statements, and instructions issued by hundreds of agencies. This is the material which would be made available under subsection (b) of S. 1160. However, under S. 1160 an agency may not be required to make available for public inspection and copying any advisory interpretation on a specific set of facts which is requested by and addressed to a particular person, provided that such interpretation is not cited or relied upon by any officer or employee of the agency as a precedent in the disposition of other cases. Furthermore, an agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, such as operational tactics, allowable tolerances, or criteria for defense, prosecution, or settlement of cases.
H.R.Rep. No. 1497, 89th Cong., 2d Sess. 7-8, U.S.Code Cong. & Admin.News 1966, pp. 2418, 2424 (1966) (emphasis added). It would be difficult to find a more precise basis for disposing of this case than the congressional intent expressed in the statement in the portion of the Report italicized above.
The specific agreement of the House and Senate Committee Reports, to exclude from disclosure "law enforcement matters" and "staff manuals and instructions which set forth criteria or guidelines for the staff in auditing and inspection procedures" forecloses appellants' claim for disclosure regardless of possible ambiguities raised by other more general portions of the statute The information sought by appellants involves guidelines and instructions that unquestionably relate to law enforcement. The basic purpose of the Guidelines is to assure that the costs oil refiners use in computing their prices are correct and that the reports they make to the FEA are accurate. Where non-compliance is detected, corrective action is instituted By Agency auditors after concurrence with the National office. General Guidelines, p. 2. Thus, these individuals clearly serve as an arm of law enforcement, and their Guidelines are exempt.
and the Committee Reports, 4 as specific statements of legislative intent usually prevail over more general provisions. 5
Recent court decisions are in accord with an interpretation of the legislative history that would classify the documents requested by appellants as "law enforcement matters." In City of Concord v. Ambrose, 333 F.Supp. 958 (N.D.Cal.1971), where the plaintiffs sought access to the "texts used by the Bureau of Customs to train (its) law enforcement agents," Judge Wollenberg stated:
The Senate Report reveals that the word "administrative" was inserted by way of committee amendment, and its purpose was to limit the provision to those materials "which pertain to administrative matters rather than to law enforcement matters" to protect "the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a...
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