U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-091
ALJ CASE NO. 97-ERA-37
DATE: March 20, 1998
In the Matter of:
GARY NASON,
COMPLAINANT,
v.
MAINE YANKEE ATOMIC
POWER COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. §5851 (1988 and Supp. V 1993). The parties submitted a Settlement
Agreement seeking approval of the settlement and dismissal of the complaint. The Administrative
Law Judge issued a Recommended Decision and Order on February 26, 1998 approving the
settlement.
[Page 2]
The request for approval is based on an agreement entered into by the
parties, therefore, we must review it to determine whether the terms are a fair, adequate and
reasonable settlement of the complaint. 29 C.F.R. §24.6. Macktal v. Secretary of
Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of
Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v. Georgia Power
Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23, 1989, slip op. at 1-2.
Paragraph 7.1 provides that the agreement will be governed by the laws of
Maine. We construe this to except the authority of the Secretary of Labor and any Federal court
which shall be governed in all respects by the laws and regulations of the United States. See
Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25, Final Ord. of
Dismissal, Nov. 4, 1991, slip op. at 2.
Section III provides that the Complainant shall keep the terms of the
settlement confidential, with certain specified exceptions. We have held in a number of cases with
respect to confidentiality provisions in settlement agreements that the Freedom of Information Act,
5 U.S.C. § 552 (1988)(FOIA) "requires agencies to disclose requested documents
unless they are exempt from disclosure. . . ." Coffman v. Alyeska Pipeline Services
Co. and Arctic Slope Inspection Services, ARB Case No. 96-141, Final Order Approving
Settlement and Dismissing Complaint, June 24, 1996, slip op. at 2-3. See also Plumlee v.
Alyeska Pipeline Services Co., Case Nos. 92-TSC-7, 10; 92-WPC-6, 7, 8, 10, Sec. Final
Order Approving Settlements and Dismissing Cases with Prejudice, Aug. 6, 1993, slip op. at 6;
Davis v. Valley View Ferry Authority, Case No. 93-WPC-1, Sec. Final Order
Approving Settlement and Dismissing Complaint, Jun. 28, 1993, slip op. at 2 n.1 (parties'
submissions become part of record and are subject to the FOIA); Ratliff v. Airco
Gases, Case No. 93-STA-5, Sec. Final Order Approving Settlement and Dismissing
Complaint with Prejudice, Jun. 25, 1993, slip op. at 2 (same).
The records in this case are agency records which must be made available
for public inspection and copying under the FOIA. In the event a request for inspection and
copying of the record of this case is made by a member of the public, that request must be
responded to as provided in the FOIA. If an exemption is applicable to the record in this case or
any specific document in it, the Department of Labor would determine at the time a request is
made whether to exercise its discretion to claim the exemption and withhold the document. If no
exemption were applicable, the document would have to be disclosed. Since no FOIA request has
been made, it would be premature to determine whether any of the exemptions in the 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.
Department of Labor regulations provide specific procedures for responding
to FOIA requests, for appeals by requestors from denials of such requests, and for protecting the
interests of submitters of confidential commercial information. See 29 C.F.R. Part 70
(1995).1[Page 3]
1 Pursuant to 29 C.F.R.
§70.26(b), submitters may designate specific information as confidential commercial information
to be handled as provided in the regulations. When FOIA requests are received for such information,
the Department of Labor shall notify the submitter promptly, 29 C.F.R. §70.26(e); and 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 requester to compel
disclosure, the submitter will be notified, 29 C.F.R. §70.26(h).