transmitted to appellants by letter of April 12 constitutes a decision and order within the meaning of 5 U.S.C. sec. 552 (a) (2) (A). "We do not feel that appellee should be required to ‘operate in a fishbowl', but by the same token we do not feel that appellants should be required to operate in a darkroom. If the Maritime Subsidy Board did not want to expose its staff's memorandum to public scrutiny it should not have stated publicly in its April 11 ruling that its action was based upon that memorandum, giving no other reasons or basis for its action. When it chose this course of action 'as a matter of convenience' the memorandum lost its intra-agency status and became a public record, one which must be disclosed to appellants (5 U.S.C. sec. 552(b)(5)). Thus we conclude that the Board's April 11 ruling clearly falls within the confines of 5 U.S.C. sec. 552(a)(2)(A) and consequently it must be produced for public inspection." Agency: Aspin v. Department of Defense -F 2d-(D.C. Circ. 1973) Civ. A. No. 72-2147 Department of Defense Record(s) involved: Report entitled "Department of the Army Review of the Preliminary Investigations into the Mylai Incident". Sections of the Act: Section 552 (a) (3)—Disclosure of "identifiable records" Section 552 (b) (5)—Exemption for inter- or intra-agency memoranda. Judgment: In favor of defendants. Plaintiff brought action in District Court to compel disclosure of report of investigation conducted by the Army into the My Lai Incident. The Army had brought charges against fifteen officers relying on evidence contained in the report. District Court ruled in favor of defendants holding that the report was exempt under § 552 (b) (7) as investigatory files compiled for law enforcement purposes. The Court stated that the test for determining whether exemption (b) (7) applied was "whether the files sought relate to anything that can be fairly described as an enforcement proceeding. The Court found that the report was exempt because it "figured prominently in the initiation of subsequent court-martial proceedings." The Court also found that the report fell under Exemption (b) (5) as intra-agency memoranda because it was “principally made up of internal working papers in which opinions are expressed and policies formulated and recommended." Plaintiffs appealed. HELD: Affirmed. Plaintiff argued that the report was not exempt under section 552 (b) (7) because 1) the report is not an "investigatory file" and 2) even if it once was, the report is no longer entitled to exemption under section 552(b) (7) because no court-martials are to be held in the future-i.e. that exemption (b) (7) cannot, as a matter of law, continue as to documents which were involved in prior law enforcement proceedings. The Court rejected both arguments. The report was produced as an "investigatory file" compiled for law enforcement purposes and therefore is exempt under section 552 (b) (7). Further, the fact that enforcement proceedings were terminated prior to the request for disclosure of material which formed the basis for that enforcement proceeding does not take such material outside of exemption (b)(7). If investigatory files were made public subsequent to the termination of enforcement proceedings, the ability of any investigatory body to conduct future investigations would be seriously impaired. Exemption (b) (7) remains available after the termination of investigation and enforcement proceedings. Since the Court held that the report was exempt under. section 552 (b) (7), it found it unnecessary to consider whether the report is entitled to exemption under section 552 (b) (5). Bannercraft Clothing Company, David B. Lilly Company, Inc., Astro Communication Laboratory v. The Renegotiation Board – U.S. — (1974) Civ. A. No. 72–822 Agency: The Renegotiation Board. Record(s) involved: Documents that served as basis for the Renegotiation Board's finding of excessive profits. Sections of the Act: Section 552 (a) (3)—Court review. Judgment: In favor of defendants (Renegotiation Board). Plaintiffs brought action in District Court to enjoin renegotiation proceedings and to compel disclosure of the Board's statements of facts and reasons upon which a determination had been made that the contractor had realized excessive profits. The District Court granted a preliminary injunction and ordered disclosure of the statement. Defendants disclosed the report. Plaintiffs then made a further request for the documents which served as a basis for the Board's conclusions. The Board claimed exemption of some of the documents under 5 U.S.C. § 552 (b) (5) and asserted as to the others, that they were not covered by the Act. The Board also moved to dissolve the preliminary injunction claiming that it had fulfilled its obligations under the F.O.I.A. The District Court denied the Defendant's motion and Defendants appealed to the D.C. Circuit Court. The Circuit Court affirmed holding that in enacting the F.O.I.A., the Congress intended to confer equity powers on the Courts to enjoin administrative proceedings pending resolution of claims under the F.O.I.A. The Court also held that the contractors only needed to exhaust their administrative remedies under the F.O.I.A. and not their administrative remedies under the Renegotiation Act, as a condition precedent to requesting injunctive relief. Defendants petitioned the Supreme Court for a writ of certiorari and it was granted. HELD: Reversed and remanded. The Supreme Court held that the Renegotiation Board falls within the definition of "agency" under the F.O.I.A. Congress did not intend that the provision granting the Courts the power to compel disclosure be the exclusive method for enforcing the disclosure requirements under the Act. The District Court has authority under its broad equity powers to enjoin administrative proceedings pending resolution of a claim under the F.O.I.A. However, the Court held that the contractor was obliged to pursue the administrative remedies provided under the Renegotiation Act before he could obtain relief through judicial interference. The effect of negotiation and its aims are not to be supplanted by an F.O.I.A. suit. The process under the Renegotiation Act is one of negotiation and nothing in the F.O.I.A. indicates that Congress wished to change the Renegotiation Act's "purposeful design of negotiation without interruption for judicial review." "The contractor may institute its de novo proceeding in the Court of Claims, unfettered by any prejudice from the agency proceeding and free from any claim that the Board's determination is supported by substantial evidence." "Without a clear showing of irreperable injury, failure to exhaust administrative remedies serves as a bar to judicial intervention into the agency process." Barceloneta Shoe Corp. v. Compton 271 F. Supp. 591 (D. Puerto Rico 1967) Agency: National Labor Relations Board Record(s) involved: Statements made by witnesses to NLRB investigators during investigation of unfair labor practices charge. Sections of the Act: Sec. 552(b) (4)—Exemption for trade secrets and confidential information. Sec. 552 (b) (7)-Exemption for investigatory files. Judgment: For defendant (Agency). Plaintiff filed a complaint pursuant to the Administrative Procedure Act seeking to order defendant to produce Agency (NLRB) records which contained evidence received by them during the course of an investigation involving an alleged unfair labor practice. Defendant has previously refused such request stating that it would follow its normal procedures making investigation affidavits and statements of witnesses available to plaintiffs during any hearing before the Agency but only after the witnesses had testified on direct examination. Defendant contends, that its refusal is supported by the specific exemptions contained in the new Act, particularly sections 3(e) (4) and (7). HELD: For defendant (motion to dismiss granted). In enacting the public information section of the Adm. Procedure Act, Congress did not intend to give private parties charged with violation of federal regulatory statutes any greater right to inspect investigative file material than has been granted to persons accused of violating federal criminal laws. 5 U.S.C.A. sec. 552 (b) (4), (7). If disclosure, as urged by Plaintiffs, is allowed, persons interviewed by Board agents in future investigations will not be as cooperative as they are now if they know that the information they give to the Board agents would be subject to public disclosure at any time before they have actually testified at a public hearing. Defendant (NLRB) has shown a better right to keep its commitment to the persons giving such confidential statements, than have Plaintiffs made for the disclosure of said documents prior to the hearings. Benson v. General Services Administration 289 F. Supp. 590 (W.D. Wash. 1968), aff'd 415 F. 2d 878 (9th Cir. 1969) Agency: General Services Administration Record(s) involved: Documents dealing with sale of real estate and negotiations surrounding sale. Sec. 552 (b) (2)—Exemptions for internal procedures. Sec. 552 (b) (4)-Exemption for trade secrets and confidential commercial or financial information. Sec. 552 (b) (5)—Exemption for inter- and intra-agency memoranda. Judgment: For petitioner. Action under the Information Act to enjoin the General Services Administration from withholding certain agency records dealing with a sale of real estate and negotiations surrounding the sale. The property purchased by plaintiff's partnership from GSA, and to which the requested information relates, has been resold: Plaintiff, and other members of the partnership as well treated the profits from the resale as long-term capital gains on their income tax returns. The Internal Revenue Service is questioning this characterization, and the information contained in the requested documents is needed to clarify the nature of the transaction. GSA argues that the withholding of the records sought was proper because each one was exempt from disclosure under one or more of three exemptions described in subsection (b) of the Act. The paragraphs relied upon as making disclosure inapplicable describe matters: (2) related solely to the internal personnel rules and practices of an agency; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. HELD: For Plaintiff. Affirmed by U.S. Court of Appeals. With respect to paragraph (2) of the Act, none of the information sought related to internal personnel rules and practices. With respect to paragraph (4) of the Act, this exemption is meant to protect information that a private individual wishes to keep confidential for his own purposes, but reveals to the government under the express or implied promise by the government that the information will be kept confidential. The appraisal report on the other hand, is kept confidential by the appraiser on the client's behalf, not on his own behalf, and the client here is GSA. Thus the exemption does not apply to the appraisal report. With respect to paragraph (5) of the Act, the House Report interpreted this language to say that "any internal memorandum which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public." Benson v. United States 309 F. Supp. 1144 (D. Neb. 1970) Agency: U.S. Department of the Air Force. Record(s) involved: Statements of individuals which were the results of an investigation and which were later utilized by an administrative board reviewing the possibility of petitioner's discharge. Section of the Act: Sec. 552(b) (7)—Exemption for investigatory files. Judgment: For defendant (Agency). This action is filed pursuant to Section 552 of Title 5, United States Code. Plaintiff faces the possibility of being discharged from the Air Force under provisions of the Air Force Regulations. [AFR 39-12]. Plaintiff specifically requests the U.S. District Court to enjoin the defendants from withholding from him certain statements which he claims will aid him in preventing his discharge. It is the government's contention that these statements, which were the result of an OSI [Office of Special Investigation] investigation and are being utilized at present by an administrative board reviewing the possibility of plaintiff's discharge, fall within an exception to sec. 552 which allows a refusal to produce the documents. The exception to which the government refers is sec. 552(b) (7) which states "This section [sec. 552(a)] does not apply to matters that are . . . [1] investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than the agency." HELD: Complaint dismissed. It is the decision of the Court that the government is entitled to withhold the documents because of the exemption previously stated. The legislative history of this statute indicates that is not the intent of the statute to hinder or in any way change he procedures involved in the enforcement of any laws including "files prepared in connection with related government litigation and adjudicative proceedings." H.R. Report #1497, 89th Cong., 2d Session, pg. 11. Quote from case on intent and scope of the Act: "S. 1160 is not intended to give a private party indirectly any earlier or greater access to investigatory files than he would have directly in such litigation or proceedings." Bristol-Myers Company v. Federal Trade Commission 284 F. Supp. 745 (D.D.C. 1968), aff'd in part, rev'd in part, 424 F.2d Agency: 935 (D. C. Cir. 1970), cert. den. 400 U.S. 824 (1970) Federal Trade Commission Record(8) involved: Various documents relevant to a rulemaking proceeding initiated by the Commission on the basis of staff investigation, accumulated experience and available studies and reports. Sections of the Act: Sec. 552 (b) (4)-Exemption for trade secrets and confidential information. Judgment: For petitioner. The Bristol-Myers Company seeks an order compelling the Federal Trade Commission to produce certain documents relevant to a rulemaking proceeding initiated by the Commission on the basis of "extensive staff investigation," accumulated experience and available studies and reports. . . ." The Commission refused to produce the documents, and the District Court dismissed the complaint, ruling that the material sought did not constitute "identifiable records" whose production is required by statute, and furthermore that many of the documents sought fell within the statutory exemptions for trade secrets, internal agency documents, or investigatory files compiled for law enforcement purposes. HELD: With regard to production of records under the Freedom of Information Act, the order of the District Court is reversed and remanded. Other claims not related to the Act are affirmed. The District Court failed to examine the disputed documents, and explain the specified justification for withholding particular items. A bare claim of confidentiality will not immunize files of a government agency from scrutiny. Quote from case on intent and scope of the Act: "Before 1967, the Administrative Procedure Act contained a Public Information Section full of loopholes which allowed agencies to deny legitimate information to the public.' When Congress acted to close those loopholes, it clearly intended to avoid creating new ones." Agency: California v. Richardson 351 F. Supp. 733 (N. Cal. 1972) Department of Health, Education and Welfare Record(s) involved: Extended Care Facility Reports (Form SSA-1569) relative to California nursing homes receiving Medicare reimbursement. Section of the Act: Sec. 552 (b) (3)—Exemption by statute. Judgment: For defendants (Agency). The California Attorney General, on behalf of the people of California, and two senior citizens' organizations seek an order requiring the Department of Health, Education and Welfare to disclose annual reports certifying whether California nursing homes comply with Medicare requirements. They argue that these reports are the only records by which Medicare patients can determine which nursing homes provide safe, sanitary, and humane care. HEW argues that the requested annual reports fall within section 552 (b) (3), which authorized nondisclosure of records "specifically exempted from disclosure by statute." The statute upon by HEW (42 U.S.C. sec. 1306(a)) allows the Secretary of Health, Education and Welfare to determine by regulation whether information obtained in the course of his duties shall be made public. |