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Natural Resources Defense Council v. Defense Nuclear Facilities Safety Bd.

ELR Citation: 22 ELR 21381
Nos. No. 91-1199, 969 F.2d 1248/(D.C. Cir., 07/24/1992)

The court holds that a regulation of the Defense Nuclear Facilities Safety Board (Board) providing that the Board may close meetings, or portions of meetings, involving deliberations on its recommendations relating to the public health and safety, does not violate the Government in the Sunshine Act. The court first holds that the Board's construction of sections of its enabling act pertaining to public availability of the Board's recommendations is not entitled to deference, because deference is trumped when an enabling statute must be read with other statutes, such as the Freedom of Information Act, that impose general obligations on all government agencies. The court holds that the correct reading of the Board's enabling act requires the Board to withhold recommendations until after they have been received by the Secretary of Energy or the president. Thus, the Board's regulation falls within Exemption 3 of the Government in the Sunshine Act, which allows agencies to close portions of a meeting likely to disclose matters specifically exempted from disclosure by statute. The court notes that the Board 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, and that before it does so, the Board must determine by a majority vote that it will be discussing recommendations. Further, 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.

A dissenting judge would hold that the Board's regulation violates the Government in the Sunshine Act, because the relevant language in the Board's enabling act forces the Board to disclose information and does not exempt anything from disclosure.

Counsel for Petitioners
Katherine A. Meyer, Dan W. Reicher
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

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

Counsel for Respondent
Robert M. Anderson, Richard A. Azzaro
625 Indiana Ave. NW, Ste. 700, Washington DC 20004
(202) 208-6400

Before BUCKLEY, WILLIAMS, and D.H. GINSBURG, Circuit Judges.