U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-102
ALJ CASE NO. 97-CAA-4
DATE: JUL 22 1997
In the Matter of:
STEPHEN M. PAINE,
COMPLAINANT,
v.
SAYBOLT, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER DISAPPROVING SETTLEMENT AND REMANDING CASE
This case arises under the Clean Air Act (CAA), 42 U.S.C. §7622
(1988). The parties have submitted a Settlement Agreement and General Release seeking approval
of the settlement and dismissal of the complaint. The Administrative Law Judge issued a
Recommended Decision and Order (R. D. and O.) on May 20, 1997 approving the settlement. After
a review of the agreement and R. D. and O., we remand the case to the ALJ.
Paragraph 16 of the agreement indicates that the record in this case shall be
covered by a protective order and designates the contents of the record "confidential
commercial information," thus attempting to shield the entire record from disclosure pursuant
to the Freedom of Information Act (FOIA). It is unlikely that the entire contents of any record would
qualify for complete nondisclosure under the FOIA. Confidential commercial information refers to
"records provided to the government by a submitter that arguably contain material exempt
from release under [FOIA], because disclosure could reasonably be expected to cause substantial
competitive harm." 29 C.F.R. §70.2. The intent is to protect specific information which
the submitter in good faith claims could reasonably be expected to cause such harm. Designating
the entire contents of the record, some portions of which would not qualify for FOIA exemption
under any circumstances (e.g. the hearing transcript and exhibits which are already public records)
does not constitute a good faith designation. Therefore, we refuse to accept the designation
presented by the parties and, as a consequence, refuse to approve the settlement.
[Page 2]
The ALJ points to our approval of a settlement agreement in Seater v.
SouthernCalifornia Edison Company, Case No. 95-ERA-13, Final Order Approving
Settlement and Dismissing Complaint, Mar. 27, 1997, in concluding that the blanket-like protection
sought by the parties in this case has been endorsed by the Board. We note that in Seater
the agreement designated certain financial information regarding the settlement and not the entire
record. Our approval of the settlement agreement in Seater should not be interpreted as an
endorsement of the type of protection sought by the parties in this case.1
1The ALJ in Seater also
suggested that "it would be best if the [ALJ] Who has to recommend approval, or not, of the
settlement should be permitted (even encouraged) to set forth the financial terms of a settlement in
his determination, which is a public document and easily and quickly obtainable." Seater
v. Southern California Edison Company, Case No. 95-ERA-13, Recommended Dec. and Order,
Mar. 11, 1997. We recognize that publishing the financial terms of a settlement may serve the
purpose of encouraging employees to engage in whistleblowing activities. However, we also
recognize that publishing the financial terms of settlements would likely lead to fewer settlements,
perhaps more contentious litigation and potentially have a chilling effect on whistleblowing
activities. Therefore, we decline to adopt the ALJs suggestion in Seater.