Pacific Architects & Engineers Inc. v. Renegotiation Bd., 73-2093

• Decision Date: 08 October 1974
• Docket Number: No. 73-2093,73-2093
• Citation: Pacific Architects & Engineers Inc. v. Renegotiation Bd., 505 F.2d 383, 164 U.S.App.D.C. 276 (D.C. Cir. 1974)
• Parties: PACIFIC ARCHITECTS AND ENGINEERS INCORPORATED, Appellant, v. The RENEGOTIATION BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 383

505 F.2d 383

164 U.S.App.D.C. 276

PACIFIC ARCHITECTS AND ENGINEERS INCORPORATED, Appellant, v.The RENEGOTIATION BOARD.

No. 73-2093.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 12, 1974.

Decided Oct. 8, 1974.

Michael Evan Jaffe, Washington, D.C., with whom Burton A. Schwalb, Washington, D.C., was on the brief for appellant.

Thomas G. Wilson, Atty., Dept. of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellee.

Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit judges.

BAZELON, Chief Judge:

In the context of an on-going renegotiation proceeding, appellantPacific Architects and Engineers, Inc., sought to obtain under the provisions of the Freedom of Information Act,5 U.S.C. 552(1970), certain documents from the Renegotiation Board.After a protracted period of negotiation over appellant's request, the Board disclosed a significant portion of the documents sought by appellant.However, the Board refused to disclose documents in three categories.Those categories are: (1.) non-renegotiable business statistics contained in Standard Forms of Contractor's Reports (Form RB-1) and in Screening Reports and Code Sheets (Form RB-11) of several contractors in the same region as appellant who are also subject to the Renegotiation Act;(2.) the recommendation of the Office of Screening and Exemption in renegotiation cases in appellant's region which were given a 'Notice of Clearance Without Assignment', such recommendation being contained in Form RB-11; and (3.) certain memoranda of conversations between the staff of the Renegotiation Board and other contractors in appellant's region.Appellant filed suit in the District Court to obtain disclosure of theese three categories to obtain disclosure of these three categories Court upheld the Renegotiation Board's argument that the documents in categories (1.) and (3.) were exempt from disclosure on the basis of Exemption 4 of the Freedom of Information Act,5 U.S.C. 552(b)(4)(1970) and that the documents in category (2.) were exempt from disclosure on the basis of Exemption 5 of the Freedom of Information Act,5 U.S.C. 552(b)(5)(1970).¹This appeal followed.

The disputed documents in categories (1.) and (3.) contain business sales statistics and business tax data which are allegedly 'confidential' within the meaning of Exemption 4.The established tests for determining whether documents are 'confidential' business statistics within the meaning of Exemption 4 are that the statistics must be the sort not customarily disclosed to the public ² and that disclosure of the statistics must not be likely to either impair the government's ability to obtain necessary information in the future or cause substantial harm to the competitive position of the person from whom the information is obtained.³On the basis of the record presently before uswe cannot decide whether the documents contained in categories (1.) and (3.) meet those tests.Our recent decisions in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820(1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873(1974)andCuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086(1973) suggested procedures which would produce the information necessary to resolve conflicting claims concerning the applicability of exemption 4.The purpose of the specific procedures suggested in Vaughn and Cuneo was to prevent an agency from thwarting the intent of the Freedom of Information Act by making 'conclusory and generalized allegations of exemptions . . ..'484 F.2d at 826;484 F.2d at 1092.One manner in which such conclusory allegations thwart the purpose of the Act is to prevent meaningful appellate review of District Court in camera rulings on the exempt status of disputed documents.484 F.2d at 1096. in this case, the District Court made its ruling that the material in categories (1.) and (3.) was exempt under Exemption 4 on the basis of an in camera inspection without receiving any detailed statement from the Renegotiation Board stating the factual and legal basis for the Board's claim of exemption.That ruling thus is virtually impossible to review and runs afoul of the purpose of the Vaughn and Cuneo procedures.Therefore, we remand the case for supplementation of the record through compliance by the government with the procedures outlined in Vaughn and Cuneo.

The specific procedures mandated by Vaughn and Cuneo contemplated a detailed indexing of the allegedly exempt material.This procedure would apparently not be revelant to any of the documents in category (1.) but would be relevant to the documents in category (3.).But the Vaughn and Cuneo decisions mandate more than mere indexing of allegedly exempt documents.They contemplate a procedure whereby the agency resisting disclosure must present a 'detailed justification', 484 F.2d at 826, for application of the exemption to the specific documents in dispute.Such a 'detailed justification' in this case should include (a.) the extent to which data of the sort in dispute is customarily disclosed to the public, with specific factual or evidentiary material to support the conclusion reached; (b.) the extent to which disclosure of this information will impair the government's ability to obtain necessary information of this type in the future, with specific factual or evidentiary material to support the conclusion reached; (c.) the extent to which disclosure of the information will cause substantial harm to the competitive position of the person from whom the information is obtained, with specific factual or evidentiary material to support the conclusion reached; and (d.) the extent to which any harms of the type mentioned in (b.) and (c.) could be reduced or eliminated by non-disclosure of the identity of the person submitting the information in dispute.If it is claimed that the information itself discloses to knowledgeable people the identity of the person who supplied it, some factual basis for that conclusion must be advanced to support the Board's nondisclosure.The appellants should, of course, have an opportunity at a hearing upon the supplementation of the record in this case to dispute any factual or evidentiary assertions made by the government through introduction of oral or written testimony or through factual submissions.Only this 'detailed...