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operations to the light of public scrutiny. [Slip Opinion

(dissent) at 6-7. (Footnotes omitted.)] Judge Bazelon further noted that in regards to the Hearing Transcript, he found the court's "control/property" test unpersuasive. He stated that:

“Federal agencies regularly receive documents created by
nonagencies that obviously become "agency records" in the
ordinary course. See, e.g., Washington Research Project,
Inc., v. H.E.W., 504 F.2d 238 (D.C. Cir. 1974) (grant applica-
tion submitted to National Institute of Mental Health by
noncommercial research scientist); Irons v. Gottschalk, 369
F. Supp. 403 (D.D.C. 1974) (patent application). [Slip Opin-

ion (dissent) at 8.]
It was his opinion that:

[T]he court would supplement the element of “control”
with other concepts having to do with "property". The
court's ultimate position, as I see it, would be that Con-
gress has a property interest in, as well as control over,
the contents of the transcript, the paper on which the
contents are typed, and any copy of the transcript. But so
sweeping a notion is plainly at odds with the majority's
concession that the Hillenkoetter statement is an agency

record. [Slip Opinion (dissent) at 10.] The dissent further states:

[A]ssuming the “control/property” standard is the correct
one, factual ambiguities in the record would preclude sum-
mary judgment. If Congress does, generally speaking, exert
control over, and maintain property interests in, docu-
ments possessed by federal agencies, the majority's test
generates a need to ascertain the methods by which such
control is exercised and relinguished, and the means by
which such property interests are created and extin-
guished. In this case discovery is necessary specifically to
determine whether Congress or the Committee that con-
ducted the hearings ever instructed the CIA to preserve
the secrecy of the transcript, and, if so, for how long. [Slip

Opinion (dissent) at 12.] The dissent would also deny summary judgment on the Exemption 3 status of the Hillenkoetter Statement because the CIA did not furnish a Vaughn v. Rosen index of that document, which would require that the agency submit an itemized index that would satisfy the “detailed justification,” “specificity,” and “separation” requirements the Vaughn index was meant to ensure. (Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).) Judge Bazelon was of the opinion that the affidavit filed by the CIA, “plainly fails to supply the information necessary to facilitate the adversary process and de novo review.” [Slip Opinion (dissent) at 19.1

In regards to the thoroughness of the CIA's search for responsive documents, the dissent, while not seriously questioning the CIA's good faith, was of the opinion that discovery was needed in any event to ascertain whether the CIA personnel conducting the search used an “underinclusive" definition of “legislative history”. The dissent was also of the opinion that such discovery would have revealed whether the persons conducting the search did in fact withhold otherwise responsive documents on the basis of the CIA's definition of "agency records".

On June 6, 1978, Ms. Goland and Ms. Skidmore filed a petition for rehearing and suggestion for rehearing en banc.

On June 16, 1978, plaintiffs-appellants filed a motion to vacate the decision of the Court of Appeals.

On March 28, 1979, the Court of Appeals issued its opinion on Ms. Goland's and Ms. Skidmore's motion to vacate and petition for rehearing. The opinion affirmed its earlier decision except in regard to the question of attorneys' fees. That question was remanded to the District Court for reconsideration.

The basis of the petition for rehearing was the failure of the CIA to disclose hundreds of documents which were arguably responsive to plaintiff-appellants' Freedom of Information Act request until after the Court of Appeals issued its decision affirming summary judgment for the CIA even though the CIA had discovered the documents during litigation of the appeal. Plaintiffs had contended that the discovery of additional documents indicated that the CIA affidavits relied upon by both the District Court and the Court of Appeals were incorrect, and that, therefore, the earlier Court of Appeals decision should be vacated. The Court rejected this contention and stated that the issue was not whether any further documents might conceivably exist but whether the CIA's search for responsive documents was adequate. Here, the Court concluded, the circumstances surrounding the discovery of the additional material did not suggest that the CIA's initial search for documents pursuant to the plaintiffs' FOIA request was inadequate. The Court noted that according to the CIA, the documents had been found after extraordinary effort by the CIA law librarian in the course of conducting research on projects unrelated to the Goland case and could not have been found under normal FOIA procedures.

The Court of Appeals also noted that the occasions when newly discovered evidence or changed circumstances warrant setting aside a final judgment are limited procedurally as well as substantively. The Court of Appeals observed that appellate review is ordinarily unaffected by matters not contained in the record and held that the disclosures regarding the additional documents, whether characterized as “newly discovered evidence" or "changed circumstances”, did not warrant vacating its earlier judgment. The opinion stated that the existence of the additional documents, insofar as it shows whether or not the search was thorough, falls into the category of newly-discovered evidence. The proper procedure for dealing with newly-discovered evidence, the Court of Appeals noted, is for the party to move for relief from the judgment in the District Court under rule 60(b) of the Federal Rules of Civil Procedure. While there are occasional cases in which altered circumstances are properly noticed on appeal, the Court of Appeals stated, such cases are invariably ones in which events have altered the essential nature of the controversy as, for example, where there has been an intervening change in the law or where the controversy has become moot, rather than cases such as this.

Summarizing its conclusions in regard to appealability the Court of Appeals stated:

Nothing in the circumstances which plaintiffs raise sug-
gest to us that the district court judgment was incorrect.

We are satisfied by the submissions to this court that the
original failure to uncover the documents was wholly un-
derstandable and not inconsistent with the district court's
finding that the search was thorough.

Moreover, although the delay in releasing the materials
may not be excused, we do not think that that misconduct
vitiates the district court's finding either. Only were we to
indulge a fairly harsh inference as to the bona fides of the
CIA would we be inclined to upset the judgment. The
instant facts fall quite short of supporting any such conclu-
sion. Consequently, whether or not there is any possibility
of relief from the judgment in district court, we decline to
disturb our affirmance respecting the thoroughness of the
search. We reach this conclusion fully aware that we deal
here with a summary judgment whose factual basis de-
rives from affidavits and without discovery.

Slip Opinion at 12.] The Court of Appeals noted that its refusal to vacate its affirmance was without prejudice to plaintiffs' seeking relief in the District Court through a rule 60(b) motion. The opinion also observed, however, that that approach may be difficult or wholly unavailable given the firm 1-year limit on the filing of a rule 60(b) motion based on newly-discovered evidence.

The opinion stated that neither the discovery of additional material nor the CIA's delayed disclosure and release of those documents undermined its original conclusion as to the status of the hearing transcript as a Congressional document, the Hillenkoetter statement, and the definition of “agency records”.

In regard to the question of attorneys' fees the Court of Appeals vacated that portion of its affirmance and remanded to the District Court for reconsideration in light of the new facts.

Circuit Judge Bazelon issued an opinion dissenting from the majority's decision to leave the earlier opinion undisturbed and concurring in the decision to remand for consideration of plaintiffs’ right to attorney fees. Judge Bazelon stated that if the CIA had seasonably revealed the existence of the 321 additional documents to the court prior to its decision, the Court of Appeals would not, in his opinion, have issued the opinion affirming the District Court. Rather, he felt, it would have inquired further into the issue of whether or not the case had become moot with the release of the additional documents, either by remanding to the District Court for a determination of that issue or by requiring further submissions from the parties.

The dissenting opinion also expressed the view that, assuming that there remained a live controversy, the majority's conclusion that the discovery of additional documents did not impugn the accuracy of the affidavits regarding the search was a question of fact that could not possibly be decided on the record before the Court of Appeals. In this regard the dissent stated:

The majority's extreme reluctance to permit plaintiffs to explore the factual basis of the CIA's assertions thus repeats the basic error of the original panel opinion. The majority again prematurely forecloses plaintiffs' inquiry into the nature of the CIA's search in response to the

FOIA request.10 But the error is even more serious in this
case, for we do not have the benefit of a trial court judg-
ment, entered after appropriate inquiry, that these revela-
tions do not undermine the validity of the CIA's original
affidavits. The majority correctly notes that “[a]n appellate
court has no fact-finding function.” Slip op. at 10. I submit
that the majority denies the motion to vacate precisely
because it has found the facts against plaintiffs.

10 As I noted in my earlier dissent, “[m]y disagreement, again, concerns
not the substance but the timing of the judgment in favor of the agency.'
Dissenting op. at 21.

[Slip opinion (dissent) at 41 Judge Bazelon further stated that he would have used the supervisory power invested in the Court of Appeals by 28 U.S.C. sec. 2106 (1976) to remand the case to the District Court to determine the effect of the new disclosures on the District Court's prior decision upholding the adequacy of the CIA's initial search. He also declared that the CIA had a strict obligation to report the information to the court at the moment its arguable relevance became known, and that its explanation of the delay, that the matter was given “insufficient priority”, was nothing short of a confession that it had been derelict in its duty to the court.

On April 6, 1979 the plaintiffs moved to stay issuance of the court's mandate pending application to the U.S. Supreme Court for a writ of certiorari. The motion was granted and on June 26, 1979 the plaintiffs' petition for writ of certiorari was filed. [No. 78-1924] In their petition the plaintiffs raised the following questions:

1. May an agency define “records” subject to disclosure under the Freedom of Information Act to exclude a document in its possession on the ground that it was originally produced by a third party not subject to the Act?

2. May summary judgment be granted in favor of a government agency in a so-called "national security” FOIA case, based solely upon its self serving affidavits, when the opposing party has been denied any opportunity to challenge those affidavits through discovery or other adversarial procedures? [Petition for Writ of Certiorari at 3-4.]

Status.—The case is pending before the U.S. Supreme Court.

The complete text of the Findings of Fact of the District Court of May 26, 1976, is printed in the "Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.

The complete text of the opinion of the Court of Appeals is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.

The complete text of the opinion of the Court of Appeals on appellants' motion to vacate and petition for rehearing is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979. Exxon Corp. v. Federal Trade Commission

No. 77-1302 (D.C. Cir.)
No. 78-1176 (U.S. Supreme Court)

www

Kerr-McGee Corp. v. Federal Trade Commission

No. 77-1303 (D.C. Cir.)
No. 78–1176 (U.S. Supreme Court)
and,

Union Carbide Corp. v. Federal Trade Commission

No. 77-1304 (D.C. Cir.)

On May 7, 1976, Union Carbide Corp. (hereinafter “Union Carbide") filed a complaint for injunctive and declaratory relief against the Federal Trade Commission (hereinafter “FTČ"), and the Chairman, Commissioners, and Secretary of the FTC, to prevent the FTC from "releasing to two Congressional committees, and thus to the public, commercially sensitive trade secrets relating to plaintiffs' coal and nuclear business, which the Commission is required to keep confidential under Section 6 of the Federal Trade Commission Act, 15 U.S.C. § 46(f), and under common law protections for trade secret information.” [Verified Complaint for Injunctive and Declaratory Relief, Union Carbide Corp. v. FTC, Civil Action No. 760793 (D.D.C.).] Union Carbide states that pursuant to an FTC subpoena dated January 31, 1975, they turned over to the FTC commercially sensitive data and trade secrets, and notified the FTC of the confidential nature of the data. The complaint states that Union Carbide and the FTC entered into an agreement that the FTC would give Union Carbide 10 days' notice before releasing any information. On May 5, 1976, the FTC notified Union Carbide that it was considering releasing the data to the Senate Judiciary Committee's Antitrust and Monopoly Subcommittee and to the House Interstate and Foreign Commerce Committee's Subcommittee on Oversight and Investigations, and that the commissioners expected to vote unanimously to release the material by May 7, 1976. Furthermore, despite the 10-day notice agreement, the FTC said that Union Carbide might not receive any further notice. Union Carbide asserted that on numerous previous occasions commercially sensitive trade secret data submitted to Congressional committees and subcommittees had become public. They also alleged that if the FTC released this information it would be in violation of 15 U.S.C. $ 46(f), which says the FTC may make public information it obtains "except trade secrets and the names of customers,” and that the release of the data would also violate Union Carbide's common law right of confidentiality of its trade secrets. Union Carbide asked the court to enjoin the defendants from releasing the information to anyone outside the FTC, including, but not limited to, any committee or subcommittee of Congress, and to issue a declaratory judgment that the release of such data would violate 15 U.S.C. § 46(f) and Union Carbide's common law right to preserve its trade secrets.

U.S. District Judge John H. Pratt issued an order on May 7, 1976, enjoining the FTC from releasing the information to any person outside the FTC until 10 days after the disposition of Ashland Oil Co. v. FTC, No. 76-1174 (D.C. Cir.), since it appeared to the court that the same issue was before the U.S. Court of Appeals in that case. [For a brief of Ashland Oil Co. v. FTC, see Court

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