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National Parks & Conservation Ass'n v. Kleppe

Citation: 7 ELR 20052
No. No. 76-1044, 547 F.2d 673/(D.C. Cir., 11/15/1976) Aff'd in part, rev'd in part

On its second decision in this Freedom of Information Act (FOIA) suit to compel disclosure of financial records filed with the National Park Service by concessioners, the D.C. Circuit upholds nondisclosure under the fourth exemption to the Act of records for five concessioners but reverses and remands to the district court for further evidence regarding the competitive position of two other concessioners. Under its first decision in this litigation, 4 ELR 20385, the primary issue now before the court is the correctness of the district court's conclusions that disclosure of the requested documents would cause substantial competitive harm to the concessioners. Although agreeing that the concessioners do face competition both inside and outside the parks, the court rejects appellant's argument that a detailed economic analysis of the competitive environment, similar to that undertaken for complex antitrust litigation, was required. The court rejects the lower court's finding that financial disclosure would materially increase the opportunity for potentially damaging competition in the renewal of concession agreements, but it affirms nondisclosure for five of the seven concessioners, as the evidence was sufficient to support a conclusion that disclosure would in fact cause competitive injury from surrounding businesses. Because the proof was insufficient for the other two concessioners, however, the court remands for additional evidence. On remand, that district must determine whether these concessioners face meaningful competition according to the test established in National Parks I, and whether disclosure may be withheld under an alternate personal privacy exemption of the FOIA.

Counsel for Appellant
Victor H. Kramer
Richard B. Wolf
Institute for Public Interest Representation
Georgetown University Law Center
600 New Jersey Ave., NW
Washington DC 20001
(202) 624-8000

Counsel for Federal Appellees
Rex E. Lee, Asst. Attorney General
Michael F. Hertz
William Kanter
Department of Justice
Washington DC 20530
(202) 737-8200

Earl J. Silbert, U.S. Attorney
United States Courthouse
3rd & Constitution Ave., NW
Washington DC 20001
(202) 426-7810

Counsel for Appellees Conference of National Park Concessioners
W. Stanfield Johnson
A. Tupper Brown
Reavis, Pogue, Neal & Rose
1100 Connecticut Ave., NW
Washington DC 20036
(202) 452-5850

Before: TAMM and MacKINNON, Circuit Judges and KAUFMAN,* United States District Judge for the District of Maryland.