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

969 F.2d 1248, 297 U.S. App. D.C. 248, 22 Envtl. L. Rep. (Envtl. Law Inst.) 21496, 20 Media L. Rep. (BNA) 1564, 1992 U.S. App. LEXIS 25153, 1992 WL 171564

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 9, 1992
• Docket: 91-1199
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

BUCKLEY, Circuit Judge:

Respondent Defense Nuclear Facilities Safety Board issued regulations, as required by the Government in the Sunshine Act, setting forth the circumstances under which it will deny public access to its meetings. The regulations provide, inter alia, that the Board may close meetings, or portions of meetings, involving deliberations on Board recommendations relating to the public health and safety. Petitioners, Natural Resources Defense Council and Energy Research Foundation, are environmental organizations that challenge the Board’s regulation as contrary to the requirements of the Sunshine Act. Because we find that the Board properly invoked Exemption 3 of the Act, we uphold the regulation.

I. Background

A. Statutory Framework

The Government in the Sunshine Act, 5 U.S.C. § 552b (1988), provides that agency meetings will be open to public observation unless the material to be discussed at the meeting qualifies under one or more of ten exemptions defined in section 552b(c). Exemption 3 allows an agency to close portions of a meeting likely to

disclose matters 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.

Id. § 552b(c)(3).

The Board operates pursuant to its enabling statute, the Defense Nuclear Facilities Safety Board Act. See 42 U.S.C. §§ 2286-2286i (1988). The Safety Board Act requires the Board to review, investigate, and evaluate the standards, operations, design, and construction of Department of Energy (“DOE”) defense nuclear facilities, see id. § 2286a(1)-(4), and to make recommendations to the Secretary of Energy when such recommendations “are necessary to ensure adequate protection of public health and safety,” id. § 2286a(5). Section 2286d(a) provides for the “[pjublic availability” of the Board’s recommendations;

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.

Id. § 2286d(a) (emphasis added).

The. Safety Board Act adjusts this scheme when the Board determines that a recommendation “relates to an imminent or severe threat to public health and safety.” Id. § 2286d(g)(l). In such cases, the Board is required to transmit its recommendation not only to the Secretary of Energy, but also to the President. Id. at § 2286d(g)(2). Then, “[ajfter receipt by the President of the recommendation ..., the Board promptly shall make' such recommendation available to the public.” Id. § 2286d(g)(3).

B. Previous Related Case and the Board’s Response

In Energy Research Foundation v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C.Cir.1990), we rejected the Board’s assertion that it was not an “agency” within the scope of the Sunshine Act and the Freedom of information Act (“FOIA”). We therefore held that the Sunshine Act and FOIA applied, although we “expressed] no opinion on the subject” of whether “exceptions to [the Sunshine Act and FOIA] would enable [the Board] to close its meetings and withhold its records.” Id. at 582. After this decision, the Board promulgated “Rules Implementing the Government In the Sunshine Act.” See 56 Fed.Reg. 9605-11 (1991) (codified at 10 C.F.R. § 1704 (1992)). Section 1704.4 of these rules provides that

a meeting may be closed and information pertinent to such meeting ... may be withheld if the Board properly determines that such meeting or portion thereof or the disclosure of such information is likely to:

(c) Disclose matters specifically exempted from disclosure by statute ... Provided, That such statute:

(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

This exemption applies to Board meetings, or portions of meetings, involving deliberations regarding recommendations which, under Jp2 U.S.C. 2286d(a) and (g)(8), may not be made publicly available until after they have been received by the Secretary of Energy or the President, respectively.

10 C.F.R. § 1704.4 (second emphasis added).

Petitioners challenge the regulation, arguing that sections 2286d(a) and (g)(3) of the Safety Board Act do not require the Board to withhold recommendations from the public. The Board insists, however, that the sections require, in unambiguous terms, that they not be released to the public until after they have been received by either the Secretary or the President. The Board also maintains that allowing the public to attend meetings at which recommendations are considered would frustrate free and open debate of highly sensitive issues affecting national security and public health and safety.

II. DISCUSSION

A. Standard of Review

Unless Congress’s intent is “unambiguously expressed,” we will generally defer to an agency’s interpretation of its enabling statute so long as the interpretation is “based on a permissible construction of the statute.” Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted). Chevron deference may be trumped, however, when the enabling statute must be read with other statutes, such as FOIA and the Sunshine Act, that impose general obligations on all government agencies. As we found in applying FOIA’s nearly identical Exemption 3,

since the statute’s purpose — disclosure of certain information held by the government — creates tension with the understandable reluctance of government agencies to part with that information, Congress intended that the primary interpretive responsibilities rest on the judiciary, whose institutional interests are not in conflict with that statutory purpose.

Reporters Comm. for Freedom of the Press v. Dep’t of Justice, 816 F.2d 730, 734 (D.C.Cir.1987), rev’d on other grounds, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). In that case, we concluded that

a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. We must find a congressional purpose to exempt matters from disclosure in the actual words of thé statute ... [not] in an agency’s interpretation of the statute.

Id. at 735 (footnote omitted). Therefore, we will not defer to the Board’s construction of sections 2286d(a) and (g)(3) of the Safety Board Act in determining whether they meet the criteria of Exemption 3 of the Sunshine Act.

B. Exemption 3

To invoke Exemption 3, an agency must demonstrate (1) that a statute exists that either requires that matters be withheld from the public “in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld,” 5 U.S.C. § 552b(c)(3); and (2) that the portion of the meeting to be closed is likely to disclose material protected by statute, id. at § 552b(c).

In this case, petitioners argue that sections 2286d(a) and (g)(3) do not require Board recommendations to be withheld from the public in terms that satisfy Exemption 3. In their view, “after” does not mean “only after”; therefore, these sections fall short of the requirement that they oblige the agency to withhold the recommendations. Petitioners thus claim that the Sunshine Act operates to allow public access to the Board meetings at which recommendations are formulated and adopted.

We disagree. We find the Board’s construction of the sections to be the natural one. Moreover, when read in context, “after” means “only after.” Section 2286d(a), which was enacted after the Sunshine Act, requires that the Board make its “recommendations available to the public in the Department of Energy’s regional public reading rooms” promptly “after receipt by the Secretary.” 42 U.S.C. § 2286d(a) (emphasis added). This careful mechanism for the time-controlled disclosure of the recommendations would be unnecessary if they were generally available to the public at an earlier stage through the Sunshine Act. We therefore conclude that the most obvious reading of sections 2286d(a) and (g)(3) is also the correct one. Because they require the withholding of the recommendations until after they have been received by the Secretary or the President, the sections fall within Exemption 3.

Petitioners nevertheless argue that the Board’s regulation is inconsistent with United States Dep’t of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). There, two inmates had sued the Parole Commission under FOIA for disclosure of their presentence investigation re- . ports. The Parole Commission claimed that the reports were exempt from disclosure under FOIA’s Exemptions 3 and 5.

In arguing its Exemption 3 claim, the Parole Commission relied on two statutes that arguably provided for the time-controlled, limited disclosure of presentence reports. At that time, Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure provided that “[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the [presentence] report.” Rule 32(c)(3)(E) further provided that any copy of the pre-sentence report furnished to a defendant “shall be returned to the probation officer immediately following the imposition of sentence.” After sentencing, a copy of the presentence report was typically transmitted to the Bureau of Prisons, where it could be used to determine the inmate’s classification and privileges. The Parole Act required the Parole Commission to provide a prisoner, at least thirty days before a scheduled parole hearing, with “reasonable access to [the presentence] report ... used by the Commission in making” its parole determination. 18 U.S.C. § 4208(b) (1982).

The Parole Commission argued that these statutes demonstrated that although Congress intended defendants/inmates to have some access to their presentence reports, it also sought to limit that access to the times specifically provided in Rule 32(c) and the Parole Act. See Julian, 486 U.S. , 108 S.Ct. at 1612-13. The Supreme Court found, however, that

neither the Rule nor the Act satisfies the requirements of Exemption 3. Both provisions have been recently changed, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole.

Id. at 9, 108 S.Ct. at 1611. The Court refused to “convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that ‘specifically exempt[s] from disclosure’ for purposes of Exemption 3 of the FOIA.” Id. at 10, 108 S.Ct. at 1612.

Julian is readily distinguished. The Rule and the Parole Act require sentencing courts and parole boards to provide defendants and inmates with their presentence reports no later than the times specified; they contain no language expressly denying defendants and inmates access to their reports at other times. Furthermore, the disclosure authorized by the Supreme Court in Julian is to the inmates who are the subjects of the presentence reports, not to the public at large. The Court noted that Rule 32(c) required that reports furnished defendants pursuant to the Rule be returned to the sentencing courts in order “to ensure that [the reports] do not become available to unauthorized persons,” Julian, 486 U.S. at 10, 108 S.Ct. at 1612, but observed that the Parole Act only required that “reasonable access” be given to a pre-sentence report, and that “there is no express limitation on an inmates power to retain a copy of the report.” Id. at 11, 108 S.Ct. at 1612. The Court’s restriction of the FOIA disclosure to the requesting inmates was noted by Justice Scalia in his dissent. See id. at 15, 108 S.Ct. at 1615 (Scalia, J., dissenting) (“today’s decision ... makes a departure ... from the general principle of the Freedom of Information Act that individuating characteristics of re-questors are not to be considered”). Here, the statutory language requires that the information be made available to the public after a specific event, thereby precluding the public disclosure of recommendations dealing with highly sensitive matters before they reach the person or persons to whom they are directed.

In upholding the challenged regulation, we remind the Board that it may invoke the regulation only with respect to that portion of a meeting during which recommendations that will be sent to the Secretary or the President are likely to be discussed, see 5 U.S.C. § 552b(c); and that before it does so, the Board must determine by a majority vote that it will be discussing recommendations. See id. § 552b(d)(l). Moreover, after a closed meeting, the Board must provide the public with a transcript, electronic recording, or minutes of all portions of the meeting not devoted to the Board’s recommendations. See id. § 552b(f)(2).

III. Conclusion

For the foregoing reasons, we deny the petition for review.

So ordered.