DATE: February 7, 1994
CASE NO. 92-ERA-14
IN THE MATTER OF
JAMES DEBOSE,
COMPLAINANT,
v.
CAROLINA POWER AND LIGHT COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER DISAPPROVING SETTLEMENT
AND REMANDING CASE
The Administrative Law Judge (ALJ) submitted an Order
Recommending Disapproval of Proposed Settlement Agreement (ALJ
order) on February 27, 1992, in this case arising under the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The
parties filed with the Secretary a Joint Motion to Approve
Settlement Agreement on March 3, 1992, in which they stated they
did not intend to file briefs, and the Director of the Office of
Administrative Appeals issued a notice on March 9, 1992 that no
briefing schedule would be established in this case. In
addition, Complainant's counsel wrote to the Secretary on
March 3, 1992 setting forth the reasons why the Secretary should
approve the settlement.
The ALJ recommended disapproval of the settlement because it
contains several provisions providing for confidentiality of the
terms of the agreement, including a provision that the agreement
itself be placed in a "restricted access" portion of the record
[PAGE 2]
under 29 C.F.R. § 18.56 (1991). The ALJ found that these
confidentiality provisions would violate several policies
underlying the ERA and the Secretary's functions under the Act.
ALJ order at 2-3.
The starting point for any consideration of public
disclosure of government records [1] is the Freedom of
Information Act (FOIA). 5 U.S.C. § 552 (1988). Prior to
passage of the FOIA, agencies had general authority to regulate
dissemination of documents under 5 U.S.C. § 301 (1988), the
general housekeeping statute, and section 3 of the original
Administrative Procedure Act. Those two statutes had come to be
used by agencies as justification for generally withholding
information from the public. "Under the old APA, Section 3,
agency and department heads enjoyed a 'sort of personal ownership
of news about their units,' and a wide ranging discretion to
suppress information . . . ." Getman v. NLRB, 450 F.2d
670, 678-79 (D.C. Cir. 1971). The FOIA was enacted to reverse
the general policy of agencies to deny access to government
records. It established "a general philosophy of full agency
disclosure unless information is exempted under clearly
delineated statutory language." S. Rep. No. 813, 89th Cong., 1st
Sess. 3 (1965). When the FOIA was amended in 1974, Congress
reiterated that the exemptions are "the outer limits of
information that may be withheld where the agency makes a
specific affirmative determination that the public interest and
the specific circumstances presented dictate - as well as that
the exemption relied upon allows - that the information
should be withheld." S. Rep. No. 584, 93d Cong., 2d
Sess., 6 (1974).
It is clear, moreover, that the exemptions in the FOIA are
"exclusive," Environmental Protection Agency v. Mink, 410
U.S. 73, 79 (1973), because the FOIA itself states that it "does
not authorize withholding of information or limit the
availability of records to the public, except as specifically
stated in [the Act]." 5 U.S.C. § 552(c). The exemptions
are to be narrowly construed, and agencies cannot expand the
exemptions through broad regulations. Department of the Air
Force v. Rose, 425 U.S. 352, 361 (1976). If documents do not
fall within an exemption, agencies may not justify withholding on
the grounds that disclosure "would do more harm than good,"
Wellman Indus., Inc. v. NLRB, 490 F. 2d 427, 429 (4th Cir.
1974), cert. denied, 419 U.S. 834 (1974), or that the
disclosed documents could be misinterpreted, Getman v.
NLRB, 450 F.2d 670, 680 (D.C. Cir. 1971).
A situation analogous to that presented here arose in
County of Madison v. U.S. Dep't of Justice, 641 F.2d 1036
(1st Cir. 1981). There, Madison County made an FOIA request for
letters from the Department of Justice to the Oneida Tribe
discussing the
[PAGE 3]
settlement of litigation against the United States by the Tribe.
The Department of Justice denied the FOIA request, relying on the
b(5) exemption, and the general policy that settlements are to be
encouraged and confidentiality of settlement discussions will
foster settlements. The court rejected these arguments, holding
that no matter how compelling the policy arguments are, the
agency still had to show that the documents fell under one of the
exemptions. [2] The court explained:
[t]he FOIA's legislative history 'emphasize[d]' that
the law 'is not a withholding statute but a disclosure
statute . . . .' [cite om.] The purpose of the [FOIA]
was to 'eliminate' vague statutory phrases that
agencies had previously used as 'loopholes' for
withholding information and 'to establish a general
philosophy of full agency disclosure unless information
is exempted under clearly delineated statutory language
. . . .' [cite om.] [U]certainties in the FOIA's
language are to be construed in favor of disclosure and
. . . its exemptions are to be read narrowly . . . .
[T]he government suggests no principled manner in which
to confine FOIA's scope, should it persuade us to
hurdle the limiting statutory language."
641 F.2d 1040.
It is clear, therefore, in light of the FOIA, its
legislative history, and the cases discussed above, that the
settlement in this case must be made available upon request for
public inspection and copying, unless it falls under an exemption
in the FOIA. Only if it falls under an exemption (and disclosure
is not prohibited by law, such as 18 U.S.C. § 1905 (1988))
may the Department of Labor consider the factors urged by
Complainant's counsel in favor of approval of the settlement,
such as the need of the requesting party for access to the
settlement balanced against the parties' interests in
confidentiality.
Furthermore, it would not be appropriate, in the absence of
an FOIA request, to determine now whether any exemption is
applicable. If such a request is received for this particular
document in the future, a new determination of the applicability
of the exemptions would have to be made, in light of the passage
of time and changed circumstances. In addition, if an FOIA
request is denied by the agency component having custody of the
record, the requesting party has the right to appeal to the
Solicitor of Labor. 29 C.F.R. § 70.22. That right of
appeal would have little meaning if the Department of Labor
commmitted itself in advance not to disclose the settlement. No
assurances of confidentiality can be given in advance of an FOIA
request
[PAGE 4]
because an agency "promise of confidentiality [cannot] in and of
itself defeat the right of disclosure." Petkas v. Staats,
501 F.2d 887, 889 (D.C. Cir. 1974); Public Citizen Health
Research Group v. F.D.A., 704 F.2d 1280, 1287 (D.C. Cir.
1983) (". . . agencies cannot alter the dictates of the [FOIA] by
their own express or implied promises of confidentiality. . .
."). Approval of the settlement with its provisions on
confidentiality would amount to providing such assurances.
I find, therefore, that I cannot approve the settlement
agreement, regardless of whether its other provisions are fair,
adequate and reasonable. SeeMacktal v. Brown & Root,
Inc., 923 F.2d 1150, 1154-56 (5th Cir. 1991) (Secretary may
only approve or disapprove settlement but may not sever terms
agreed to by parties).
The parties should be aware, however, that Department of
Labor regulations implementing the FOIA provide that submitters
of information may designate specific information as confidential
commercial information to be handled as provided in those
regulations. 29 C.F.R. § 70.26(b) (1991). When an FOIA
request for such information is received, the Department of Labor
will notify the submitter promptly, 29 C.F.R. § 70.26(c),
the submitter will be given a reasonable period of time to state
its objections to disclosure, 29 C.F.R. § 70.26(e), and the
submitter will be notified if a decision is made to disclose the
information. 29 C.F.R. § 70.26(f). If the information is
withheld and suit is filed by the requestor to compel disclosure,
the submitter will be notified. 29 C.F.R. § 70.26(h). [3]
These regulations provide substantial protection for the
interests of the parties in the confidentiality of the
settlement. The parties are encouraged to reconsider the
confidentiality provisions of the settlement in light of these
regulations and to submit an amended settlement to the ALJ.
However, for the reasons discussed above, the Joint Motion to
Approve Settlement Agreement is denied, and this matter is
remanded to the ALJ for further proceedings consistent with this
order, the ERA and the regulations, 29 C.F.R. Part 24.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] There can be little doubt that the settlement here is part
of the record in this case and therefore is a government record
subject to the FOIA. SeeForsham v. Harris, 445
U.S. 169, 182 (1980).
[2] The court held that the b(5) exemption did not apply
because these letters were not "inter-agency or intra-agency
memoranda."
[3] Some components of the Department of Labor have
incorporated these regulations into their operations manuals.
See, e.g., OFCCP Compliance Manual, Chapter 5, section
5G04 (Dec. 17, 1991 revision.)
