Albert H. Meyerhoff v. United States Environmental Protection Agency

958 F.2d 1498, 92 Daily Journal DAR 3798, 92 Cal. Daily Op. Serv. 2369, 22 Envtl. L. Rep. (Envtl. Law Inst.) 20830, 34 ERC (BNA) 2008, 1992 U.S. App. LEXIS 4652, 1992 WL 49918

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 1992
• Docket: 90-15263
• Status: Published

Opinions

ALARCON, Circuit Judge:

We consider whether conflict of interest forms filed by members of the Environmental Protection Agency’s Scientific Advisory Panel (SAP) and Science Advisory Board (SAB) may be withheld under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

FACTS AND PROCEDURAL HISTORY

The SAP and SAB are scientific panels that advise the Environmental Protection Agency (EPA). The SAP renders advice on the impact of proposed EPA pesticides regulations on health and the environment. 7 U.S.C. § 136w(d). The SAB renders advice on a wide range of environmental issues and the integrity of the EPA’s research. 42 U.S.C. § 4365. Pursuant to the Ethics in Government Act, 5 U.S.C.App. 4 § 207(a)(1), the EPA requires the scientists on these panels to file conflict-of-interest reports that list their employment and financial interests, including the names of corporations and other institutions with which they are associated or in which they have a financial interest. 40 C.F.R. §§ 3.302, 3.602.

Albert Meyerhoff is an attorney with the Natural Resources Defense Council. On November 27, 1985, he filed a FOIA request for copies of financial disclosure statements filed by SAP and SAB scientists between January 1, 1981, and November 27, 1985. The EPA responded by letter on December 18, 1985, informing him that it intended to deny his request in a subsequent letter. On March 6,1986, Meyerhoff informed the EPA that he was construing the EPA’s December letter as a denial and that he wished to appeal. He subsequently narrowed his request to information concerning the scientists’ employment and financial interests in the petrochemical and pesticide industries, and to the identity of the interests and sources of income without regard to specific amounts. By letter of May 13, 1988, the EPA denied Meyerhoff’s request on the basis of FOIA exemptions 3, 4, and 6.

Meyerhoff filed suit pursuant to 5 U.S.C. § 552(a)(4)(B), seeking an order compelling the EPA to make the financial disclosure records available. Both sides moved for summary judgment. The district court granted summary judgment in favor of the EPA, holding that the information was properly withheld under FOIA exemption 3, which exempts from disclosure matters that are specifically exempted from disclosure by some other statute. 728 F.Supp. 613. The court found that the Ethics in Government Act of 1978 qualifies as a withholding statute under this exemption. The district court did not reach the EPA’s alternative arguments that the information was also exempt from disclosure under FOIA exemption 4, which allows the withholding of confidential commercial or financial information, and FOIA exemption 6, which allows the withholding of information when disclosure would be a clearly unwarranted invasion of privacy. Meyer-hoff appeals.

DISCUSSION

Meyerhoff contends that the limited information he seeks regarding potential conflicts of interest of SAP and SAB scientists must be disclosed by the EPA because it does not qualify for nondisclosure under any of the specifically enumerated exemptions to FOIA. The EPA contends that the financial information statements are appropriately withheld pursuant to Exemptions 3, 4, and 6 of FOIA. Without reaching the applicability of Exemptions 4 and 6, we hold that the EPA may withhold the conflict of interest records under Exemption 3.

I. Exemption 3

Exemption 3 of FOIA provides that the Government may withhold information that is:

specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). Parts A and B of this exemption provide alternative grounds for withholding information. Long v. IRS, 742 F.2d 1173, 1178 (9th Cir.1984).

In applying Exemption 3 to the facts of this case we must inquire: (1) whether the Ethics in Government Act qualifies as an Exemption 3 withholding statute under either Part A or B of 5 U.S.C. § 552(b)(3), and (2) whether the information withheld falls within the scope of the Ethics in Government Act. See, e.g., Lessner v. United States Dep’t of Commerce, 827 F.2d 1333, 1335-37 (9th Cir.1987); National Comm’n on Law Enforcement v. CIA, 576 F.2d 1373, 1376-77 (9th Cir.1978).

A. Does the Ethics in Government Act Qualify as a Withholding Statute Under Exemption 3?

The EPA contends that sections 207(a)(1) and (2) of the Ethics in Government Act (Ethics Act) qualify as withholding statutes under Exemption 3 and, therefore, nondisclosure of the information requested by Meyerhoff was justified. Meyerhoff argues that sections 207(a)(1) and (2) fall short of Exemption 3’s requirements.

Prior to 1985, section 207(a) provided:

The President may require officers and employees in the executive branch ... not covered by this title [sections 201 to 211 of this Act] to submit confidential reports in such form as is required by this title. Subsections (a), (b), and (d) of section 205 shall not apply with respect to any such report.

5 U.S.C.App. 4 § 207(a) (1982).

In 1985, section 207(a) was amended, and subsection 207(a)(2) was added. Subsection 207(a)(2) provides that “[a]ny information required to be provided by an individual under this subsection shall be confidential and shall not be disclosed to the public.” This amendment took effect in March of 1986. Meyerhoff concedes that the language “shall not be disclosed to the public” constitutes a mandatory nondisclosure provision within the meaning of Exemption 3(A). He contends, however, that this amendment has no effect on his request because he is seeking disclosure of reports filed by members of SAB and SAP prior to the effective date of the amendment. He argues that the amendment cannot apply retroactively to records predating its passage. We do not reach the issue whether subsection 207(a)(2) applies retroactively because we conclude that the pre-1985 section 207(a) qualifies as a withholding statute under Exemption 3(A).

As noted above, Exemption 3 provides that a statute which specifically exempts the disclosure of information is a withholding statute only if it also meets the requirements of subsections (A) or (B). Under subsection (A), the statute must “require[ ] that the matters be withheld from the public in such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3). This subsection “embraces only those statutes leaving no room for administrative discretion to disclose.” Long, 742 F.2d at 1179 (citing American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978)). “Although Exemption 3(A) applies only to statutes which ‘leave no discretion’ to the administrative agency, that limitation applies only to the decision whether matters should be withheld ‘from the public.’ Medina-Hincapie v. Department of State, 700 F.2d 737, 741 (D.C.Cir.1983) (emphasis in original) (quoting 5 U.S.C. § 552(b)(3)(A) (1976)). Meyerhoff argues that section 207(a) does not fall within Exemption 3(A) because under the EPA’s own regulations, the agency has unfettered discretion to disclose the report he seeks. We disagree.

We begin by noting that our analysis does not consider what discretion the agency regulations purport to give the agency. Instead, our analysis focuses on what discretion the statute leaves to the agency. See id. at 742 n. 20 (“An unauthorized disclosure of documents does not change the nature of the statute, nor does it constitute a waiver of the applicable FOIA exemption.” (emphasis in original)). We conclude that pre-1985 section 207(a) does not leave discretion to the EPA to disclose to the public the confidential reports filed by SAP and SAB members.

“When interpreting a statute, the court’s objective is to ascertain the intent of Congress and to give effect to legislative will.” Moorhead v. United States, 774 F.2d 936, 941 (9th Cir.1985). “It is assumed that the legislative purpose is expressed by the ordinary meaning of the words used, and absent a clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive.” Id. (citations omitted). The language of the pre-1985 section 207(a) specifically exempted the reports filed under that section from the Ethics Act’s public disclosure requirements in sections 205(a), (b), and (d). Thus, section 207(a) provided that confidential reports required by the President were not to be disclosed to the public. This interpretation is supported by the structure and history of the Ethics Act.

Pursuant to the Ethics Act, officers and employees of the executive branch are required to file reports disclosing detailed financial and employment information. 5 U.S.C.App. 4 §§ 201, 202. These reports are available to the public. Id. at § 205(a). Under section 201(h) of the Ethics Act, however, an individual who “is not reasonably expected to perform the duties of his office or position for more than sixty days in a calendar year” is exempt from filing these detailed reports. The members of the SAP and SAB fall within this category. Under the original Act, these part-time employees were exempt from filing annual reports, but were still required to file entrance and termination reports. In 1979, Congress amended the act to clarify “that if no annual report is required, no report ancillary to it, either initial or terminating, should be required.” H.R.Rep. No. 114 (Part II), 96th Cong., 1st Sess. 9, 10 (1979), reprinted in 1979 U.S.C.C.A.N. 144, 160. The legislative history to that amendment also includes the following statements:

It should be observed in this connection that these short-term employees will still have to file such confidential financial statements as are required by Executive Order of the President....

The committee has been advised that this amendment has direct relevance to the operations of the Government. Several candidates for nomination to important Governmental advisory boards, who serve purely in a part-time capacity, requested that their nominations be withdrawn because of the public disclosure provisions. It was intended that no public disclosure be required in the case of these short term employees, and this amendment assures that this intent is implemented.

Id. (emphasis added).

Furthermore, the 1985 amendment to section 207, providing mandatory nondisclosure language, can be interpreted as clarifying, rather than changing, the law to reflect the intent of Congress as stated above. United States v. Tapert, 625 F.2d 111, 121 (6th Cir.) (“An amendment to an existing statute is not an acknowledgment by Congress that the original statute is invalid. It is a common and customary legislative procedure to enact amendments strengthening and clarifying existing laws.”), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).

Based on the foregoing analysis, we conclude that the pre-1985 section 207 qualifies as a withholding statute under Exemption 3(A) because it leaves no discretion to the agencies on whether the confidential reports can be disclosed to the public.

B. Does the Information Sought by Mey-erhoff Fall Within the Scope of Section 207 of the Ethics Act?

Meyerhoff argues that, even if the Ethics Act is a withholding statute, it does not apply to the information he seeks. He argues that section 207’s exemption from public disclosure is conditioned on the promulgation of regulations that were not issued until 1986. Meyerhoff s argument is as follows: From May 8, 1965, to September 25, 1986, the only Presidential directive for obtaining conflict of interest information from executive branch employees was Executive Order (E.O.) 11,222. See Exec. Order No. 11,222, 30 Fed.Reg. 6469 (1965). E.O. 11,222 provided, in pertinent part, as follows:

Each agency shall, at the time of employment of a consultant, adviser, or other special Government employee require him to supply it with a statement of all other employment.... In addition, it shall list such other financial information as the appointing department or agency shall decide is relevant in the light of the duties the appointee is to perform.

Id. at § 306. Information obtained pursuant to E.O. 11,222 was subject to FOIA. See Washington Post Co. v. United States Dep’t of Health and Human Servs., 690 F.2d 252 (D.C.Cir.1982) (conflict of interest information provided by National Health Service SAB members under E.O. 11,222 must be publicly disclosed unless within FOIA exemption.)

In 1978, Congress passed the Ethics Act, in part because there was no law requiring public disclosure by any members of the executive branch. S.Rep. No. 170, 95th Cong., 2d Sess. 28, reprinted in 1978 U.S.C.C.A.N. 4216, 4244. The Act specifically stated that it “supersede^] any general requirement under any other provision of law or regulation with respect to the reporting of information required for purposes of preventing conflicts of interest.” Pub.L. No. 95-521, § 207(c), 92 Stat. 1849 (1978). Thus, Meyerhoff argues, the President had no authority under E.O. 11,222 to obtain information that was not available to the public. See 131 Cong.Rec. 35,331 (1985) (Department of Justice interpreted the Ethics Act as eliminating Presidential authority to require reporting under E.O. 11,222).

If the Act gave the President the authority to collect “confidential” information, Meyerhoff argues, it conditioned that authority on the promulgation of new regulations. Thus, the Ethics Act states that “[t]he President may require officers and employees in the executive branch ... not covered by this title to submit confidential reports in such form as is required by this title.” Pub.L. 95-521, § 207(a), 92 Stat. 1849 (1978) (emphasis added).

When the Ethics Act was amended in 1985, it continued this condition precedent, saying that “[a]ny information required to be filed by an individual under this subsection shall be confidential and shall not be disclosed to the public.” 5 U.S.C.App. 4 § 207(a)(2) (emphasis added).

Meyerhoff argues that the President did not exercise his authority under section 207 until he issued E.O. 12,565, on September 25, 1986. This order specifically repealed the reporting provisions of E.O. 11,222 and replaced them with a new system of reporting, pursuant to the authority and requirements of section 207. E.O. 12,565 (Sept. 25, 1986).

Meyerhoff concludes that, since the information he seeks was provided pursuant to E.O. 11,222, which was neither in the form required by Title II of the Ethics Act, nor promulgated under the authority of section 207, the information is not within the scope of section 207’s exemption from FOIA.

We disagree. The President had the authority, under section 207, to obtain information from SAP and SAB members which would not be publicly disclosed. Prior to the 1985 amendment, the President had required the submission of financial information pursuant to E.O. 11,222. Because financial information was already required under E.O. 11,222 when the Ethics Act was passed in 1978, there was no need to promulgate new regulations under section 207 to obtain the same information. We have found nothing in the Ethics Act which prohibited the President from continuing to collect information under the existing executive order.

We conclude that the Ethics Act qualifies as an Exemption 3 withholding statute and that the information which was withheld pursuant to E.O. 11,222 falls within the scope of section 207 of the Ethics Act. We AFFIRM the district court’s decision that the information sought by Meyerhoff was properly withheld pursuant to Exemption 3 of FOIA.