Natural Resources Defense Council, Inc. And Energy Research Foundation v. Defense Nuclear Facilities Safety Board

STEPHEN F. WILLIAMS, Circuit Judge,

dissenting:

Exemption 3 of the Sunshine Act piggybacks on other statutes, permitting an agency to close the portions of a meeting that are likely to “disclose matters specifically exempted from disclosure by statute”. 5 U.S.C. § 552b(c)(3) (1988) (emphasis added). The exempting statute must also satisfy one of exemption 3’s two subsections. It will satisfy subsection (A) if it “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue”, id. § 552b(c)(3)(A); it will satisfy subsection (B) if it “establishes particular criteria for withholding or refers to particular types of matters to be withheld”, id. § 552b(c)(3)(B). The Board here invoked exemption 3 to justify closing all its meetings concerning recommendations to the Secretary of Energy and the President, pointing to statutes whose only relevant language, far from exempting anything from disclosure, specifically or otherwise, forces the Board not merely to disclose information but to broadcast it via the Federal Register. See §§ 315(a) and 315(g) of the Defense Nuclear Facilities Safety Board Act, 42 U.S.C. §§ 2286d(a), (g)(3) (1988). Unable to find any negative implication in this disclosure mandate, I dissent.

Quite apart from a general presumption in favor of disclosure under the Sunshine Act, Common Cause v. NRC, 674 F.2d 921 , 932 (D.C.Cir.1982); see also United States Department of State v. Ray, - U.S. -, 112 S.Ct. 541, 547 , 116 L.Ed.2d 526 (1991) (noting FOIA’s “strong presumption in fa *1253 vor of disclosure [that] places the burden on the agency to justify the withholding of any requested [information]”), exemption 3 in particular is to be narrowly construed. In its original form, as an exemption to the Freedom of Information Act, it merely provided that FÓIA was inapplicable to matters “specifically exempted from disclosure by statute”. 5 U.S.C. § 552 (b)(3) (1970). In Administrator, FAA v. Robertson, 422 U.S. 255 , 95 S.Ct. 2140 , 45 L.Ed.2d 164 (1975), the Supreme Court held that this language authorized nondisclosure whenever a statute granted an agency discretionary power to decide whether disclosure was in the public interest and the agency decided not to disclose. Congress thought this reading too broad, however, and, when it enacted the Sunshine Act in 1976, it specifically overruled Robertson and amended exemption 3 to narrow the category of exempting statutes. See H.R.Rep. No. 880, 94th Cong., 2d Sess. 9-10, 23, reprinted in 1976 U.S.C.C.A.N. 2183, 2191, 2204-05; H.R.Conf.Rep. No. 1441, 94th Cong., 2d Sess. 25, reprinted in 1976 U.S.C.C.A.N. at 2261; CNA Financial Corp. v. Donovan, 830 F.2d 1132 , 1137-38 & n. 37 (D.C.Cir.1987); Irons & Sears v. Dann, 606 F.2d 1215, 1219-20 (D.C.Cir.1979). As amended, exemption 3 (identical for both FOIA and the Sunshine Act) covers only statutes that fit one or the other of its two subsections quoted above. Subsection (A) “embraces only those statutes incorporating a congressional mandate of confidentiality that, however general, is ‘absolute and without exception.’ ” American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978) (footnotes and citation omitted). Subsection (B), by contrast, allows room for administrative discretion in two narrowly defined areas, where it is either constrained by “particular criteria” or limited to “a narrowly-defined category of records”, Reporters Committee for Freedom of the Press v. Department of Justice, 816 F.2d 730 , 736-37 n. 9 modified, 831 F.2d 1124 (D.C.Cir.1987), rev’d on other grounds, 489 U.S. 749 , 109 S.Ct. 1468 , 103 L.Ed.2d 774 (1989). But subsection (B)’s “unmistakable thrust, like that of Subsection (A), is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch.” American Jewish Congress, 574 F.2d at 628 .

The provisions invoked by the Board, 42 U.S.C. §§ 2286d(a) and (g)(3), do not even mention withholding at all, much less require it (subsection (A) of exemption 3) or specify particular criteria to govern withholding or specific matter that the agency may withhold in its discretion (subsection (B) of exemption 3). Instead, the provisions affirmatively require specific forms of disclosure and publication. Section 2286d(a) says:

Subject to subsections (g) and (h) of this section and after receipt by the Secretary of Energy of any recommendations from the Board under section 2286a of this title, the Board promptly shall make such recommendations available to the public in the Department of Energy’s regional public reading rooms and shall publish in the Federal Register such recommendations and a request for the submission to the Board of public comments on such recommendations. Interested persons shall have 30 days after the date of the publication of such notice in which to submit comments, data, views, or arguments to the Board concerning the recommendations.

And subsection 2286d(g)(3), which applies to recommendations related to “an imminent or severe threat to public health and safety”, provides:

After receipt by the President of the recommendation from the Board under this subsection, the Board promptly shall make such recommendation available, to the public and shall transmit such recommendation to the Committees on Armed Services and on Appropriations of the Senate and to the Speaker of the House of Representatives. The President shall promptly notify such committees and the Speaker of his decision and the reasons for that decision.

The majority reads “after” in both subsections as “only after”, Maj. op. at 1251, and transforms a mandate for publication into one for concealment. Of course statutes may have negative implications. The legislative history, for example, might clearly indicate that Congress had picked a specific time as the earliest permissible, so that all prior disclosure was forbidden. Not so here. The Board was created in response to environmental, safety and health problems identified at several of the Department of Energy’s nuclear facilities. The Senate Committee on Armed Services conducted hearings to investigate the problems and ultimately recommended creating an independent advisory board that would *1254 have as its “primary mission to identify the nature and consequences of any significant potential threats to public health and safety, to elevate such issues to the highest levels of authority, and to inform the public.” S.Rep. No. 232, 100th Cong., 1st Sess. 21 (1987) (emphasis added). There is simply no evidence that Congress thought it was picking the delivery of recommendations to the Secretary as the first acceptable moment for disclosure. The Board’s argument is really a variation on the maxim expressio unius est exclusio alterius, which we have tended to reject in the administrative context, reading omissions as blanks that can be filled in with administrative discretion. See Cheney R.R. Co. v. ICC, 902 F.2d 66, 68-69 (D.C.Cir.1990) (citing cases); cf. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-44 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984). Here, of course, after Congress’s overturning of Robertson , a statute giving the agency discretion is not enough.

The negative inference seems especially weak here. Section 2286d(a) is not addressed to meetings at all; its focus is documents — recommendations to the Secretary of Energy and the President. More important, it does not merely specify the sort of accessibility that the FOIA process creates by requiring agencies to respond to requests for documents. Instead it directs affirmative agency steps — placement in the Department of Energy’s public reading rooms, and publication in the Federal Register of the recommendations and a request for comments. A mandate of widespread dissemination seems an unlikely way of expressing a ban on any prior disclosure.

The Supreme Court has shown a clear reluctance to find negative implications in mandates of disclosure, even very specific ones. In Department of Justice v. Julian, 486 U.S. 1 , 108 S.Ct. 1606 , 100 L.Ed.2d 1 (1988), the Justice Department argued that because Rule 32 of the Federal Rules of Criminal Procedure and the Parole Act required the government to disclose presen-tence reports to federal defendants and prisoners at particular times (prior to sentencing and parole determinations), they required withholding under all other circumstances, thereby satisfying exemption 3. The Court refused to find any negative implication. It characterized the Rule and Act as generally aimed at ensuring disclosure, id. at 9-10 , 108 S.Ct. at 1611-12 , which is equally true here. Addressing a claim that Rule 32(c)(3)(E)’s requirement that presentence reports be returned to the court suggestéd Congress’s intention to specifically exempt the reports from disclosure, it said: “[T]his provision does qualify somewhat the defendant’s access to his or her presentence report when that report is furnished by the district court in the context of sentencing, but in our opinion it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that ‘specifically exempts] from disclosure’ for purposes of Exemption 3”. Id. at 10 , 108 S.Ct. at 1612 (emphasis added).

The majority concedes Julian’s basic thrust, see Maj. op. at 1251-52, yet dismisses its relevance on the ground that neither the Rule nor the Parole Act contained any language “expressly denying defendants and inmates access to their reports at other times”, id. at 7 , 108 S.Ct. at 1610 . This is not a distinction but a similarity. Neither subsection 2286d(a) nor subsection 2286d(g)(3) contains language expressly denying the public access to the Board’s meetings.

In creating the Board, Congress explicitly considered the problem of information it would be risky to disclose. Subsection 2286d(h) specifically excludes from disclosure both (1) classified information and (2) unclassified information that is non-disclosable pursuant to regulations issued by the Secretary of Energy under §§ 147 and 148 of the Atomic Energy Act, 42 U.S.C. §§ 2167 , 2168. Those sections, in turn, authorize the Secretary of Energy and Nuclear Regulatory Commission to promulgate rules prohibiting the disclosure of certain types of information but only “if the unauthorized disclosure of such information could reasonably be expected to have a' significant adverse effect on the health and safety of the public or the common defense and security”. Id. § 2167(a); see also id. § 2168(a)(2). As the Atomic Energy Act provisions explicitly cross-reference exemption 3, petitioners acknowledge that they protect such information from disclosure. Petitioners’ Brief at 18.

Despite these protections, the Board expresses concern that some national security information might be revealed in a meeting on recommendations. Gov’t Brief at 19-20. But the Board can eliminate that risk by closing meetings that are entirely devoted *1255 to exempt matters, and any portions of meetings relating to such matters. There is neither need nor right to close off every discussion of prospective recommendations. See Pan American World Airways, Inc. v. Civil Aeronautics Board, 684 F.2d 31, 35-37 (D.C.Cir.1982); Common Cause v. NRC, 674 F.2d at 929, 936 n. 46; Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1265 (D.C.Cir.1980) (noting “congressional insistence that meetings may be closed only on an individual and particularized basis”).

In essence, the Board and the majority are here extending FOIA exemption 5 to the Sunshine Act. That exemption, 5 U.S.C. § 552 (b)(5), protects predecisional deliberative documents, on the sensible ground that the prospect of disclosure would inhibit robust expression by those who participate in developing an agency position. See, e.g., Access Reports v. Department of Justice, 926 F.2d 1192, 1194-95 (D.C.Cir.1991). When Congress was drafting the Sunshine Act, several federal agencies requested a similar exemption for predecisional oral deliberations, but Congress refused. See Common Cause v. NRC, 674 F.2d at 929. Neither the Board nor we are free to reverse that judgment.

Before: MIKYA, Chief Judge; WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.