Clark-Cowlitz Joint Operating Agency v. Federal Energy Regulatory Commission

798 F.2d 499, 255 U.S. App. D.C. 9, 1986 U.S. App. LEXIS 28015

Opinions

SILBERMAN, Circuit Judge:

This case concerns the scope to be afforded Exemption 10 of the Government in the Sunshine Act, 5 U.S.C. § 552b(c)(10) (1982). The Sunshine Act generally requires federal agencies to open their meetings to the public; Exemption 10 provides, however, that an agency may close a meeting when, inter alia, it is likely to “specifically concern ... the agency’s participation in a civil action____” Id.1 Appellant Clark-Cowlitz Joint Operating Agency, a municipal corporation in the State of Washington, initiated this action below against the Federal Energy Regulatory Commission. Clark-Cowlitz sought an order permitting it to inspect the transcript of an April 25, 1983 Commission meeting that had been closed to the public pursuant to Exemption 10. Sustaining the Commission’s position in full, the district court awarded summary judgment against ClarkCowlitz. Because we agree that Exemption 10 was properly invoked in this case, we now affirm the district court’s decision.

I.

In 1980, the Commission issued a decision on an important issue of statutory construction arising under the Federal Power Act: whether the preference accorded to municipalities in hydroelectric licensing proceedings, see 16 U.S.C. § 800(a) (1982), applies in relicensing proceedings (i.e., where a private utility’s original fifty-year license has expired and a municipality seeks to take over the license). In City of Bountiful, Utah, 11 FERC (CCH) ¶ 61,337 (1980) (Bountiful), the Commission concluded that it did. That decision was challenged by private utilities but nonetheless affirmed by the Eleventh Circuit in Alabama Power Co. v. FERC, 685 F.2d 1311 (11th Cir.1982). The private utilities then sought review in the Supreme Court by petitions for writ of certiorari.

The Commission scheduled a meeting for April 25,1983 to discuss its response to the certiorari petitions. Shortly before that date, the Commission’s members voted to close the meeting because its agenda concerned the agency’s “participation in a civil action” and thus fell within the terms of Sunshine Act Exemption 10. See 48 Fed. Reg. 17,432 (1983) (providing public notice of this determination). Although the meeting was closed to the public, the Commission transcribed the meeting’s discussion. See 5 U.S.C. § 552b(f)(l) (1982). On May 3, Clark-Cowlitz requested access to this transcript. The Commission denied this request, again relying upon Exemption 10.

At the April 25 meeting the Commission, in fact, had decided not to defend the Bountiful decision in the Supreme Court. The composition of the Commission had changed, and a majority wished to support the petitions for certiorari pending before the Court. In a brief submitted on behalf of the Commission, the Solicitor General of the United States disclosed this development, and accordingly asked that the Court of Appeals’ decision be vacated. The Supreme Court, however, denied certiorari on July 6. Utah Power & Light Co. v. FERC, 463 U.S. 1230, 103 S.Ct. 3573, 77 L.Ed.2d 1415 (1983).

Clark-Cowlitz then renewed its request for the transcript of the April 25 meeting, and again was denied on the basis of Exemption 10. The Chairman of the Commission affirmed this denial, maintaining that all portions of the April 25 meeting were exempt and that disclosure would be contrary to the public interest:

Full and candid discussion of litigation strategy demands that Commissioners and staff have the freedom to raise and consider a wide range of alternatives. If initial theories and hypotheses and preliminary observations are subject to public scrutiny, there may well be a chilling effect on future strategy discussions and harm to the Commission’s future litigation posture before the courts.

Letter from Chairman C.M. Butler III to Christopher D. Williams, Esq. (July 12, 1983) (Joint Appendix at 75, 76).

Clark-Cowlitz then brought this suit. After conducting an in camera inspection of the transcript, the district court granted the Commission’s motion for summary judgment. Memorandum Opinion, No. 83-1842 (D.D.C. Sept. 14, 1983). The district court concluded that the April 25 meeting “involved open and candid discussions concerning the possible agency positions [relating to] the pending petition[s] for certiorari,” id. at 7, and thus fell squarely within the purview of Exemption 10.

On appeal, a panel of this court reversed the district court’s decision. Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 359 (D.C.Cir.1985). It held that the protections of Exemption 10 terminate upon the conclusion of the litigation for which the exemption is invoked. Id. at 363-65. Because the Supreme Court had denied certiorari in the Bountiful litigation, the panel concluded that Exemption 10 would no longer support the Commission’s refusal to provide the transcript. Id. Subsequently, the full court voted to rehear the case en banc and consequently vacated the panel decision. We now affirm the district court’s disposition of this case.

II.

The Government in the Sunshine Act embodies the general policy that federal agencies should “conduct their meetings in the open, rather than behind closed doors.” S.Rep. No. 354, 94th Cong., 1st Sess. 1 (1975) (Senate Report). Nonetheless, the Act contains ten specific exemptions from this requirement of openness. See 5 U.S.C. § 552b(c) (1982). These exemptions serve to “protect the ability of the Government to carry out its responsibilities____” Senate Report at 11. We deal here only with Exemption 10, which permits an agency to close meetings (and withhold the transcript or minutes thereof)² dealing with its participation in litigation. We conclude that the Federal Energy Regulatory Commission properly invoked Exemption 10 in this case.

As the district court found, the Commission’s April 25 meeting concerned the posture the agency would adopt in litigation pending before the Supreme Court. “The Commissioners met to discuss all the available options and possible repercussions with counsel and came to a final conclusion on the agency’s litigation strategy.” Mem.Op. at 11. As such, these matters fall within the plain terms of Exemption 10, and the agency was privileged to withhold the transcript from public scrutiny.

Clark-Cowlitz nevertheless argues that at the April 25 meeting the Commissioners decided to reverse the Bountiful decision, and thus that the meeting strayed beyond exempt “litigation strategy” into what it contends were non-exempt “policy deliberations.” We think, however, that the appellant interprets Exemption 10 too narrowly. As a predicate to determining how to respond to the certiorari petitions filed against the Commission, the Commissioners necessarily discussed what result they sought. It could hardly have been otherwise: an attorney cannot discuss litigation tactics with his client in a coherent manner without touching upon his client’s substantive objectives. Nor is it unusual for a discussion focused on litigation tactics to lead a party to modify its substantive position. The commencement of litigation, as well as its various twists and turns, often induces parties to concentrate sharply on policy objectives and, not infrequently, to see those objectives in a different light. For purposes of Exemption 10, then, there could be no hard-and-fast distinction between litigation strategy and policy questions; what matters is simply that the agency deliberations in question deal with “the agency’s participation in a civil action.” 5 U.S.C. § 552b(c)(10). The Commission’s April 25 meeting manifestly satisfies that test.³

We also reject Clark-Cowlitz’s contention that the Commission was required to release the transcript once the litigation discussed at the April 25 meeting had terminated. No such requirement can be found in the language of Exemption 10. In fact, a different exemption, Exemption 9, contains an express temporal limitation. It covers information “the premature disclosure of which” would engender financial instability or speculation or otherwise “be likely to significantly frustrate the implementation of a proposed agency action.” 5 U.S.C. § 552b(c)(9) (1982) (emphasis added). We do not believe that Congress would have written an express temporal limitation into Exemption 9 and yet have intended a similar (unwritten) limitation to apply to Exemption 10. The legislative history of the Act is not to the contrary. Clark-Cowlitz relies upon a passage from the Senate Report on the bill, which notes that certain information may be exempt at first but later lose its sensitive nature and become non-exempt. See Senate Report at 32. We think it plain, however, that this passage was intended to refer only to Exemption 9. See id. (referring to “matters which are sensitive at the time, such as the regulation of financial institutions, that would cause financial speculation if disclosed prematurely”). In fact, since the version of the bill which the Senate Report described did not even require agencies to maintain a transcript or set of minutes when it closed a meeting pursuant to Exemption 10, see S. 5, 94th Cong., 1st Sess. (1975), subsequent disclosure could not have been contemplated.

Requiring an agency to disclose its tactical discussions upon the conclusion of the litigation, moreover, would frustrate Exemption 10’s purpose. Exemption 10, like the attorney-client privilege in civil litigation, see, e.g., Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C.Cir.1977), which it quite clearly reflects, serves to facilitate the candid exchange of views between client and counsel necessary for effective participation in adversary proceedings. Exposing such communications ex post would tend to inhibit free and open discussion nearly as much as would contemporaneous disclosure.⁴ Thus, for instance, in FTC v. Grolier Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983), the Supreme Court indicated that attorney work-product immunity survives beyond the particular litigation giving rise to it. Id. at 25-26, 103 S.Ct. at 2213. In a concurring opinion that bears forcefully on the question at issue here, Justice Brennan observed:

The invasion of “[a]n attorney’s thoughts, heretofore inviolate,” and the resulting demoralizing effect on the profession, are as great when the invasion takes place later rather than sooner. More concretely, disclosure of work product connected to prior litigation can cause real harm to the interests of the attorney and his client even after the controversy in the prior litigation is resolved. Many Government agencies, for example, deal with hundreds or thousands of essentially similar cases ____ It would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency in connection with earlier, similar litigation against other persons____ [H]e could gain insight into the agency’s general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled.

Id. at 30-31, 103 S.Ct. at 2216 (Brennan, J., concurring in part and concurring in the judgment) (citations and footnote omitted).

Given the language of the statute, as informed by these compelling policy considerations, we hold that Exemption 10 is not extinguished at the conclusion of the litigation for which it is invoked.⁵ We thus affirm the decision of the district court in all respects.

So ordered.

1 . Exemption 10 provides in full that an agency may close a meeting to prevent the disclosure of information likely to

specifically concern the agency’s issuance of a subpena, or the agency’s participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in [5 U.S.C. § 554] or otherwise involving a determination on the record after opportunity for a hearing.

5 U.S.C. § 552b(c)(10) (1982).

2 . The Act requires an agency to "maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public,” or, in the case of several exemptions (including Exemption 10), merely to keep a set of minutes. 5 U.S.C. § 552b(f)(l) (1982). (In this case, the Commission maintained a verbatim transcript of the meeting, foregoing its option to keep minutes instead). The agency must then make the transcript or set of minutes available to the public, "except for such item or items [on the agenda] as the agency determines to contain information which may be withheld under [an exemption].” Id. § 552b(f)(2).

3 . There is no suggestion here that the Commission used the pending litigation as a subterfuge to discuss non-exempt items in a closed session or that it unfairly manipulated the agenda of its April 25 meeting. As the district court found, the Commissioners' discussion of the municipal preference issue was intertwined with their discussion of possible responses to the pending certiorari petitions. See A.G. Becker, Inc. v. Board of Governors of Fed. Reserve Sys., 502 F.Supp. 378, 386-87 (D.D.C.1980). We note, moreover, that Clark-Cowlitz does not argue that there were any discrete portions of the April 25 meeting that are non-exempt, i.e., that the Commission must disclose segments of the transcript. In any event, under the Sunshine Act

[a]gencies need not edit a transcript or electronic recording of the Commission’s discussion of a particular matter word by word so as to make abbreviated portions of the record of the meeting available to the public. Where sensitive matters are an integral part of the record of the discussion of [an item on the agenda], no part of the record need be made public.

Senate Report at 31.

4 . Contrary to the dissent's suggestion, see Diss.Op. at 504-505, it does not follow from Congress’ refusal to create a general Sunshine Act exemption for predecisional deliberations that specific types of deliberations (such as those relating to "the agency’s participation in a civil action”) are not exempted. Likewise, Con-, gress’ rejection of arguments that the Sunshine Act’s general provision for open meetings would inhibit agency deliberations does not mean that Congress ignored such "chilling effects" in enacting particular exemptions.

5 . Clark-Cowlitz also suggests in passing that the Commission’s determination not to exercise its discretion to release the transcript (despite the applicability of Exemption 10) should be reversed by this court. See Brief of Appellant at 13, 19 n. 12. Assuming arguendo that the issue has been properly raised in this appeal, we reject the suggestion that such agency determinations are judicially reviewable. The Act states that its exemptions preclude disclosure "[ejxcept in a case where the agency finds that the public interest requires otherwise____’’ 5 U.S.C. § 552b(c) (1982). The Senate Report explains that this language indicates that "closing a meeting on [the basis of an exemption] is permissive, not mandatory____ [A]n agency may still decide that the public good achieved by opening the meeting outweighs the advantages to be gained by closing it.” Senate Report at 20. To be sure, the House Report states that ”[t]his balancing procedure is to be performed by the agency in the first instance,” H.R.Rep. No. 880, 94th Cong., 2d Sess. 9, U.S.Code Cong. & Admin.News 1976, pp. 2183, 2190 (1976), and a panel of this Circuit has (in dictum) interpreted this comment as anticipating ultimate judicial review. See Philadelphia Newspapers, Inc. v. NRC, 727 F.2d 1195, 1203 n. 6 (D.C.Cir.1984). We cannot believe, however, that Congress intended the courts to review both an agency’s determination that an exemption applies in particular circumstances and its refusal to find that disclosure is nonetheless warranted by the "public interest." That interpretation would propel the courts into the standardless realm of judging whether the public good in openness “outweighs” an agency’s interest in confidentiality in various contexts — wholly independent of the balance already struck by Congress in the Act’s express exemptions. One oblique sentence in the House Report, not endorsed in the Senate Report or the Conference Report, is simply too slender a reed upon which to rest such an untoward result. We therefore hold that 5 U.S.C. § 552b(c)’s "public interest" exception to the Act’s exemptions is addressed to the unreviewable discretion of the agency.