National Ass'n of Government Emp. v. Campbell

• Decision Date: 09 May 1978
• Docket Number: 76-2022 and 76-2023,76-2013,Nos. 76-2010,s. 76-2010
• Parties: NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES v. Alan K. CAMPBELL et al. (three cases). Appeal of BLUE CROSS ASSOCIATION et al. Appeal of AETNA LIFE INSURANCE COMPANY. Appeal of the AMERICAN POSTAL WORKERS UNION et al. NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES v. Alan K. CAMPBELL et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1023

593 F.2d 1023

192 U.S.App.D.C. 369

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES v. Alan K. CAMPBELL et al. (three cases).

Appeal of BLUE CROSS ASSOCIATION et al.

Appeal of AETNA LIFE INSURANCE COMPANY.

Appeal of the AMERICAN POSTAL WORKERS UNION et al.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES v. Alan K. CAMPBELL et al., Appellants.

Nos. 76-2010, 76-2013, 76-2022 and 76-2023.

United States Court of Appeals District of Columbia Circuit.

Argued April 22, 1977.

Decided May 9, 1978.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-1041).

Julius Schlezinger, Washington, D. C., with whom Denis F. Gordon, James R. Barnett and Mozart G. Ratner, Washington, D. C., were on the brief, for appellants in No. 76-2022, and also argued for appellants in Nos. 76-2010 and 76-2013.

John M. Rogers, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Irving Jaffe, Deputy Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants in No. 76-2023.

John Cary Sims, Washington, D. C., with whom Alan B. Morrison, Larry P. Ellsworth and Kenneth L. Adams, Washington, D. C., were on the brief, for appellee.

Philip S. Neal and Edward A. Lenz, Washington, D. C., were on the brief for appellants in No. 76-2010.

Peter J. Connell, Leonard W. Belter and Matthew B. Van Hook, Washington, D. C., were on the brief for appellant in No. 76-2013.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal subjects to scrutiny the District Court's award of summary judgment to appellee, National Association of Government Employees (NAGE), in its Freedom of Information Act ¹ suit against the Civil Service Commission. Error is attributed not only to that action but also to the court's denial of the Commission's countervailing motion for summary disposition in its favor. Our examination of the record has uncovered insuperable obstacles to summary judgment for either side. We accordingly reverse the judgment entered and remand the case for trial.

I

NAGE requested the Commission to disclose the benefit and premium proposals submitted by major health insurance carriers in 1977 ² pursuant to the Federal Employees Health Benefits Act. ³ In the wake of that legislation, numerous health insurance plans have become available to federal employees, partly at governmental expense. ⁴ Only plans approved by the Commission are encompassed by the federal program, ⁵ and alterations of benefits or premiums under ongoing plans must garner the Commission's acceptance before they become effective. ⁶

Commission regulations call upon participating health insurance carriers to submit all revisions of benefits and premiums under ongoing plans for the Commission's approval or disapproval. ⁷ At the time the instant controversy arose, changes in benefits were due by April 30 and modifications of premiums by July 31. ⁸ Following receipt of such proposals, the Commission negotiates with the carriers individually in an effort to secure for employees the most advantageous terms possible. ⁹ Packages ultimately to be offered by the carriers must be assembled in time for distribution of descriptive and explanatory literature to employees before the traditional November "open season," during which subscribers are free to switch from one plan to another. ¹⁰ These steps accomplished, approved revisions normally go into operation on January 1 of the year next ensuing. ¹¹

The Commission rejected, both at the initial ¹² and appellate levels, ¹³ NAGE's request for copies of the carriers' 1977 proposals. Invoking the Freedom of Information Act, NAGE then commenced an action in the District Court for production of these materials. ¹⁴ The scope of its demand there, as previously before the Commission, was broad enough to intercept the original proposals in toto, as well as those emerging from negotiations. ¹⁵ Later, however, NAGE narrowed its bid to the descriptive portions of original proposals, thus eliminating supporting cost data, ¹⁶ and made clear that it desired nothing until after passage of the respective deadlines for submission. ¹⁷ The Commission and the several intervenors major health insurance carriers participating in the federal program ¹⁸ resisted the suit on the ground that the proposals were immune from mandatory disclosure.

II

The Freedom of Information Act requires subject federal agencies to release properly-requested information save to the extent that it is specifically exempted. ¹⁹ The statutory exemptions are to be narrowly construed, ²⁰ and an agency opposing divulgence bears the burden of demonstrating that the material in issue falls within an exempted category. ²¹ The Commission and the carriers have argued consistently that the health insurance proposals are shielded by Exemption 4 ²² as "commercial or financial information obtained from . . . person(s) and privileged or confidential." ²³ Since all of the litigants seemingly agree that the proposals incorporate data "commercial or financial" in nature ²⁴ "obtained from" the carriers, ²⁵ the only question remaining is whether those data are also "confidential" within the meaning of the exemption. ²⁶

As we proclaimed in National Parks & Conservation Association v. Morton, ²⁷

(a) commercial or financial matter is "confidential" for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government's ability to obtain the necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. ²⁸

The Commission and the carriers contended, and NAGE of course disputed, that the health insurance proposals were exempt under each of these criteria, and the District Court agreed with NAGE on both counts. The arguments in this court have addressed the procedural as well as the substantive features of the court's rulings. Encountering a procedural flaw necessitating further proceedings in the District Court, we do not reach the merits of the case.

As stated earlier, both NAGE and the Commission sought summary judgment in the District Court. The Commission and the carriers filed affidavits buttressing the Commission's motion and opposing NAGE's; ²⁹ NAGE tendered no affidavits of its own. The court granted NAGE's motion, concluding that the proposals had not been shown to be exempt under either of the National Parks tests. As to the first, the court was of the view that since carriers desiring to alter current contracts are statutorily required to present their proposals for change to the Commission, disclosure would not impair its ability to obtain information on which they are based. ³⁰ With respect to the second test, the court believed that the Commission and the carriers had failed to meet "the burden of showing that disclosure of the initial benefit and premium proposals submitted by the participating carriers . . ., without any supporting justifying information, would result in substantial harm to the competitive position of any of those carriers. . . ." ³¹ The appeal by the Commission and the carriers summons us to examine at the outset the procedural propriety of summary judgment for NAGE and of the denial of summary judgment for the Commission.

III

A motion for summary judgment is properly granted only when no material fact is genuinely in dispute, and then only when the movant is entitled to prevail as a matter of law. ³² In assessing the motion, all " inferences to be drawn from the underlying facts contained in (the movant's) materials must be viewed in the light most favorable to the party opposing the motion." ³³ Indeed, "the record must show the movant's right to (summary judgment) 'with such clarity as to leave no room for controversy,' and must demonstrate that his opponent 'would not be entitled to (prevail) under any discernible circumstances.' " ³⁴

Summary judgment is unavailable if it depends upon any fact that the record leaves susceptible of dispute. Facts not conclusively demonstrated, but essential to the movant's claim, are not established merely by his opponent's silence; rather, the movant must shoulder the burden of showing affirmatively the absence of any meaningful factual issue. ³⁵ That responsibility may not be relieved through adjudication since "(t)he court's function is limited to ascertaining whether any factual issue pertinent to the controversy exists (and) does not extend to (the) resolution of any such issue." ³⁶

Proper application of these well-settled principles to the case at bar would have necessitated, we think, denial of NAGE's motion for summary judgment. Though appellants ultimately have the onus of proving that the insurance proposals are exempt from disclosure, ³⁷ it was incumbent upon NAGE to establish the absence of material factual issues before a summary disposition of the case could permissibly occur. ³⁸ Appellants came forth with affidavits alleging facts purporting to show that the documents sought by NAGE are exempt. The District Court, instead of searching merely to ascertain whether the case was devoid of factual questions, actually resolved lurking factual issues against them. Whether or not the resulting decision would have been warranted after a trial on evidentiary submissions by both sides a matter upon which we intimate no view it was inappropriate in the context of a motion for summary judgment.

In their affidavits, the carriers advanced several factual premises in support of their positions. Prominent among them was the assertion that the competitive advantage earned by a carrier developing an innovative benefit would be lost upon disclosure of the insurance proposals because other carriers...