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Critical Mass Energy Project v. NRC

ELR Citation: 22 ELR 21373
Nos. No. 90-5120, 975 F.2d 871/(D.C. Cir., 08/21/1992)

The court rules that Exemption 4 of the Freedom of Information Act shields from public disclosure comprehensive reports, prepared and provided to the U.S. Nuclear Regulatory Commission by a nonprofit consortium of the nuclear utility industry, concerning the safety and reliability of operations at nuclear power plants. The reports are compiled from candid comments and evaluations from nuclear power plant employees. The court establishes a categorical rule that Exemption 4 protects any financial or commercial information provided voluntarily to the government and that the provider would not customarily release to the public. The court also expressly recognizes a private interest in preserving the confidentiality of information provided to the government on a voluntary basis.

Four dissenting judges reject the majority's categorical rule on the basis that it deviates from stare decisis, is inconsistent with the Act's predominant purpose of disclosure, and fails to consider the character of the information requested.

Counsel for Appellant
Eric R. Glitzenstein
Harmon, Curran & Tousley
2001 S St. NW, Ste. 430, Washington DC 20009
(202) 328-3500

Counsel for Appellee
Peter R. Maier, Leonard Schaitman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

John F. Cordes, Solicitor
U.S. Nuclear Regulatory Commission
Washington DC 20555, MS 15-E18
(301) 504-1600

Before MIKVA, Chief Judge, and WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.