Kagel v. U.S. Army Corp. of Engineers, 1996-WPC-4 (ALJ Feb. 18, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

DATE: February 18, 2000

CASE NO: 96-WPC-004

In the Matter of

RAY L. KAGEL, JR.
    Complainant

    v.

U.S. ARMY CORPS OF ENGINEERS (COE)
    Respondent

   This is a whistleblower complaint brought under the Federal Water Pollution Control Act, 33 U.S.C. § 1367. A duly noticed hearing was scheduled in this case for March 13, 2000, in Idaho Falls, Idaho. On February 8, 2000, I received a Settlement Agreement signed by all parties of record and a letter from Complainant's attorney requesting that the Settlement Agreement be considered under seal as it is confidential.

   My review of the Settlement Agreement is limited to a determination of whether its terms are fair, adequate and reasonable settlement of Complainant's complaint concerning violations of the Federal Water Pollution Control Act. The basic criteria is whether the Settlement adequately protects the whistleblower. Further, the Settlement must not be contrary to public interest.

   After consideration of the Settlement Agreement and the representations of the parties, I find the Agreement to be fair, adequate and reasonable, and I believe it is in the public interest to adopt the Settlement Agreement as a basis for the administrative disposition of this matter.

   I note that the parties have designated the Settlement Agreement as confidential commercial information, as defined at 29 C.F.R. Part 70.26, and thereby attempt to preclude disclosure pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552.

   FOIA, however, requires agencies to disclose requested documents unless they are exempt from disclosure. See Bonanno v. Stone & Webster Engineering Corp., 97-ERA- 033 (ARB June 27, 1997), at 2; Ranft v. Pennsylvania Power & Light, 99-ERA-2 (Aug. 30, 1999); Klock v. Tennessee Valley Auth., 95-ERA-20 (ARB May 30, 1996), at 2; Darr v. Precise Hard Chrome, 95-CAA-6 (Sec'y May 9, 1995), at 2; Webb v. Consolidated Edison Co., 93-CAA-5 (Sec'y Nov. 3, 1993), at 2. Since no FOIA request has been made, it would be premature to determine whether any of the exemptions in FOIA would be applicable and whether the Department of Labor would exercise its authority to claim such an exemption and withhold the requested information. It would also be inappropriate to decide such questions in this proceeding. Darr, supra, at 2 3. See also, Debose v. Carolina Power and Light Co., 92-ERA- 14 (Sec'y Feb. 7, 1994), at 3. Nevertheless, the Settlement Agreement shall be placed in a portion of the file clearly designated as confidential commercial information which must be handled in accordance with the appropriate procedure for a FOIA request, which procedure is found at 29 C.F.R. Part 70.26. See generally, Bonanno, supra, at n.1.

   It is ORDERED that:

   1. The settlement entered by the parties be approved.

   2. Case No. 96-WPC-004 is hereby dismissed with prejudice.

   3. The Settlement Agreement be designated as confidential commercial information to be handled in accordance with 29 C.F.R. Part 70.26.

      Donald B. Jarvis
      Administrative Law Judge

San Francisco, California

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9 (1998).