Kit Wagar and Lexington Herald Leader Co. v. United States Department of Justice and Kentucky Utilities Co., Defendants

846 F.2d 1040
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 25, 1988
Docket87-5676
StatusPublished
Cited by11 cases

This text of 846 F.2d 1040 (Kit Wagar and Lexington Herald Leader Co. v. United States Department of Justice and Kentucky Utilities Co., Defendants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kit Wagar and Lexington Herald Leader Co. v. United States Department of Justice and Kentucky Utilities Co., Defendants, 846 F.2d 1040 (6th Cir. 1988).

Opinions

RALPH B. GUY, Jr., Circuit Judge.

In a case not presently before this court, the Department of Justice commenced antitrust proceedings against the Kentucky Utilities Company. Upon settlement of the antitrust litigation, the district court presiding over that matter issued an order directing the Department of Justice to destroy all documents (with certain exceptions) which it had obtained from Kentucky Utilities during the course of discovery proceedings. After attempting to intervene in the antitrust litigation and to enjoin that district court’s order to destroy the documents, plaintiffs Kit Wagar and the Lexington Herald Leader Company brought this separate action under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA or the Act), seeking release of the documents which the Department of Justice had obtained from Kentucky Utilities during the course of discovery in the antitrust case. The court below dismissed the plaintiffs’ FOIA suit, finding that the Department of Justice was not acting improperly by withholding the documents but, rather, was merely complying with the order issued by the district court presiding over the antitrust proceedings. The court therefore concluded that the Department of Justice could not be compelled to release the documents under the FOIA. Because we agree with the district court’s conclusion that the Department of Justice did not improperly withhold the documents, and that the Department of Justice therefore could not be compelled to release the documents under the FOIA, we affirm.

I.

On February 26,1981, the Department of Justice (Department) brought suit on behalf of the United States against the Ren-[1042]*1042tucky Utilities Company under section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2. United States v. Kentucky Utilities Co., No. 81-52 (E.D.Ky. Feb. 26, 1981). The Department alleged in that suit that Kentucky Utilities had attempted to monopolize and had monopolized the sale and transmission of electric power at wholesale both to its municipal customers and to a college in Kentucky by preventing other suppliers from selling electric power to those customers. During the course of the antitrust litigation, the government obtained thousands of pages of documents from Kentucky Utilities through discovery. The parties ultimately agreed that the suit should be dismissed and, pursuant to the parties’ agreement, the district court issued a consent order on June 11, 1986, which dismissed the complaint with prejudice in accordance with Fed.R.Civ.P. 41(a). The portion of the court’s June 11, 1986, order which is pertinent to this appeal states:

[Wjithin thirty days of entry of this Stipulation and Order, Plaintiff shall certify to the Defendant and to this Court, upon oath of its counsel, that it has destroyed all copies of documents obtained through discovery procedures herein, including copies thereof made by the certifying party, except that: (1) documents made exhibits to depositions and required to be maintained by ATR 2710.1 [regulations promulgated under the FOIA] shall not be required to be destroyed, and (2) no documents subject to an outstanding request under the Freedom of Information Act (“FOIA”) shall be required to be destroyed until the request and any related litigation over the request, including appeals, is resolved.

The Department began destroying documents in accordance with this order on June 13, 1986.

Subsequently, on June 16, 1986, Kit Wa-gar, a staff writer for the Lexington Herald Leader Company (Kit Wagar and the Lexington Herald Leader Company will hereinafter be referred to collectively as Wagar), wrote to the Department requesting, pursuant to the Freedom of Information Act, 5 U.S.C. § 552, copies of the documents obtained during the antitrust litigation. Upon receipt of that request on June 20, 1986, the Department discontinued its destruction of the documents. At that point, less than fifty percent of the documents had been destroyed by the Departs ment pursuant to the June 11, 1986, order of the district court.

On July 14, 1986, the Department filed a Certification of Document Destruction with the district court in which it stated that it had not destroyed either the documents that had been made exhibits to depositions or the documents related to Wagar’s FOIA request. Upon receipt of this information, Kentucky Utilities sought and obtained an ex parte order which directed the Department not to produce or deliver to anyone other than the parties to the antitrust litigation any of the documents obtained through discovery in that case prior to a hearing scheduled on the matter for July 25, 1986. The day before that hearing, Wagar filed a motion to intervene and a motion for a temporary restraining order to prohibit the Department from destroying any of the requested documents. At the hearing on July 25, 1986, the district court denied Wagar’s motion to intervene but allowed Wagar to participate in all further proceedings in the case. The district court also stayed its June 11, 1986, document distraction order until Kentucky Utilities “has had an opportunity to exhaust its administrative remedies” and Wagar “has had its right to pursue administrative remedies.”

Following the hearing, the Department filed with the court a report in which the Department stated that it had made a preliminary determination that none of the documents requested by Wagar were subject to any of the FOIA exemptions listed at 5 U.S.C. § 552(b). The Department also advised the court that because the documents might contain confidential business information, the Department intended to notify Kentucky Utilities of its preliminary conclusion and allow the company fifteen days to raise any arguments it might have against disclosure. The Department also noted in its report that it had interpreted the provision in the June 11, 1986, order which states that “no [1043]*1043documents subject to an outstanding request under the Freedom of Information Act ... shall be required to be destroyed until the request and any related litigation over the request” has been fully litigated, as referring only to FOIA requests that had been received as of the date the order was filed, i.e., June 11, 1986. Accordingly, the Department represented that it was prepared to destroy the remaining documents on October 16, 1986, unless instructed otherwise by the district court.

Thereafter, Kentucky Utilities moved for an order requiring the Department to destroy the documents pursuant to the June 11, 1986, order. Wagar filed a motion seeking either an interpretation or modification of the June 11, 1986, order which would result in release of the documents. In response, the Department advised the court that, to the extent that the other parties’ motions could be construed as motions for clarification, it joined in those motions. The Department also advised the court that the Department would not destroy the documents pending disposition of the motions.

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846 F.2d 1040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kit-wagar-and-lexington-herald-leader-co-v-united-states-department-of-ca6-1988.