Comey v. Atomic Energy Commission

No. 73-1258 (7th Cir. July 27, 1973)

The Freedom of Information Act does not protect from discovery sections of internal deliberative memoranda of the Atomic Energy Commission's Advisory Committee on Reactor Safeguards (ACRS) which contain purely factual material and are severable from their non-discoverable context. An affidavit from the Secretary of ACRS is not sufficient per se to gain exemption under the Act for material excised from minutes of committee meetings concerning three nuclear power plants near Lake Michigan; and it is within the district court's discretion to order in camera inspection of the excised material. The district court's grant of summary judgment for plaintiffs seeking discovery is affirmed in part and reversed in part since one of the documents ordered produced was deliberative. The case is remanded in order that the district court may determine what portions of the 9,000 pages of ACRS minutes regarding other nuclear power plants should also be disclosed.

Counsel for Plaintiffs
Myron M. Cherry
Alexander Polikoff
Robert J. Vallen
Suite 105
109 N. Dearborn Street
Chicago, Illinois 60602

Counsel for Defendants
Walter Fleischer
Department of Justice
Washington, D.C. 20530

Martin R. Hoffman General Counsel
U.S. Atomic Energy Commission
Washington, D.C. 20545

[3 ELR 20745]

Per Curiam

ORDER

Both parties have appealed from the district court's summary judgment in this suit under the Freedom of Information Act, U.S.C. § 552. Plaintiffs sought discovery from defendant Atomic Energy Commission (Commission) of material concerning all civilian nuclear power reactor projects, including some material compiled by the Commission itself, its committees and staff, and other material submitted to the Commission by private interests. In particular they sought documents concerning the Zion, Illinois Units Nos. 1 and 2, owned by Commonwealth Edison Company, the Cook Units Nos. 1 and 2, located in Bridgman, Michigan and owned by American Electric Power Company, and the Kewaunee project located in Kewaunee, Wisconsin and owned by Wisconsin Public Service Company, all located near the shores of Lake Michigan. The material at issue in both these appeals consists of minutes of meetings of the Advisory Committee on Reactor Safeguards (ACRS).¹

The ACRS is a 14-member committee established by statute² and appointed by the Commission for the purpose of advising the Commission on licensing and safety factors in the operation of nuclear reactors. The ACRS reviews each application to construct or operate a reactor for commercial purposes. It has authority to prepare final reports on each application, and reports are made public "except to the extent that security classification prevents disclosure." 42 U.S.C. § 2232(b).

The Commission voluntarily made available all the material sought by the plaintiffs in their complaint, except preliminary drafts of environmental impact statements, two memoranda from an individual ACRS member to other ACRS members, letter reports from three ACRS consultants, twenty status reports and [3 ELR 20746] background statements prepared by members of the Committee's staff, and the material at issue here. The Commission argued, in its motion for summary judgment filed November 30, 1972, that all the above material is exempt from disclosure under § 552(b)(5) of the Act.³ The Commission's motion was supported by an affidavit of Raymond F. Fraley, Executive Secretary of the ACRS, which said in part:

The Committee believes that its meetings, and those of its subcommittees, involve the essence of advisory decisionmaking. Frank and open discussion at these meetings can be expected only if the meetings, and the minutes summarizing these discussions, can remain confidential. In short, the Committee believes that minutes of its meetings . . . are exempt . . . under . . . exemption 5.

On February 5, 1973, the district court ordered the Commission to produce for the plaintiffs all minutes of the ACRS meetings "relating to the 'Cook,' 'Zion,' and 'Kewaunee' nuclear power plants with excissions [sic] made . . . of material which the government defendants claim to be protected under . . . the 'Act.'" Although the plaintiffs' complaint sought minutes of meetings of ACRS with respect to all other civilian nuclear power reactors in the United States, the court did not rule in the February 5 order, on this demand or the Commission's motion for summary judgment with respect to documents other than those relating to Zion, Cook, and Kewaunee. It "continued under advisement" the complaint and motion with respect to projects other than those three projects.⁴

On March 2, 1973, after in camera inspection, the district court ordered ACRS to produce for plaintiffs the following portions of minutes of meetings of ACRS concerning Zion, Cook, and Kewaunee which had been excised from the minutes turned over to plaintiffs:

a. The last sentence of the last paragraph of the page entitled "Except from Summary of 98th ACRS Meeting, June 5-8, 1968, Specific Projects, 1. Zion Station."

b. All of the matter under item 3.5 Zion Station, Units 1 and 2 (O.L.) on the page entitled "Excerpts from Summary of 147th ACRS Meeting, July 13-15, 1972."

c. All of the matter on page numbered 45 and entitled "Summary Report, 147th ACRS Meeting, Meeting Date: July 13-15, 1972."

d. The three digit number in the second full paragraph on page numbered 44 and entitled "Summary Report, 148th ACRS Meeting, Meeting Date: August 10-12, 1972."

The district court further directed entry of final judgment that the Commission need not turn over "all ACRS minutes other than those relating to the 'Cook,' 'Kewaunee' and 'Zion' plants . . . ." The court determined that there was no reason for delay in execution of its order. On March 16, 1973, this court stayed the district court's order pending appeal.

The parties agree that this case is controlled by EPA v. Mink, 410 U.S. 73 (1973). Mink was decided after the defendant's motion for summary judgment but before the district court's in camera inspection. In Mink the Court recognized that "memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery . . . ." Mink at 87-88. The Court, however, recognized that "Exemption 5 . . . requires different treatment for materials reflecting deliberative or policymaking processes . . . ." Mink at 89. Accordingly the Court held:

Exemption 5 contemplates that the public's access to internal memoranda will be governed by the same flexible, common sense approach that has long governed private parties' discovery of such documents involved in litigation with government agencies. And . . . that approach extended and continues to extend to the discovery of purely factual material appearing in those documents in a form that is severable without compromising the private remainder of the documents. Mink at 91.

With respect to the procedure to be followed by district courts in reaching a decision, the Court held that in camera inspection of items claimed exempt under § 552(b)(5) "need not be automatic." The Court decided that whether to order in camera inspection is ultimately within the discretion of the district court. The Court said the agency "should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency . . . ." Mink at 93. The Court further held that if in camera inspection was required then the agency might select a "representative document" for the court's inspection.

The only material submitted to the district court for in camera inspection is forty pages of material concerning the Zion, Cook and Kewaunee projects. That material is also the only material made a part of the record of these appeals.⁵ On appeal both parties complain that the district court's judgment was erroneous with respect to these forty pages. Neither party contends that the district court abused its discretion in ordering in camera inspection of the forty pages.

The Commission contends in its appeal that the district court erred in ordering disclosure of items a, b, c and d. It relies upon Fraley's affidavits to show as a matter of law that the disclosures ordered were exempted under exemption 5.

We agree with plaintiffs that Fraley's conclusory affidavits are not in themselves sufficient to gain exemption. The district court had the affidavits before it during its in camera inspection, and thereafter ordered the disclosures noted in a, b, c and d. On appeal we made an independent in camera inspection, in the light of the Congressional intent "to increase public access to government records in order to augment popular control of government and to encourage agency responsibility,"⁶ and after discussion concluded that the district court's order with respect to items a and b is not erroneous and should be affirmed.

We hold, however, that since the relevant minutes in item c of the district court's judgment were "deliberative" and "policy-making," that part of the judgment is erroneous and should be reversed.

With respect to item d, we find that the inadvertent disclosure in the district court of the excised part of page numbered 44 of the minutes resulted in publicizing item d, and the issue with respect to that item is moot.

Plaintiffs contend that the district court erred in refusing to require the Commission to fully disclose minutes concerning the three Lake Michigan projects and all other nuclear power projects because members of the public were probably in attendance at the meetings, thus stripping the meetings of a deliberative or confidential nature.

Our in camera inspection of the forty pages leads us to conclude that there is no merit in plaintiffs' argument that the minutes of the meetings relating to the Lake Michigan projects are in the public domain. There is no room for an inference, from any of the minutes, that members of the public were in attendance. That [3 ELR 20747] inspection has also convinced us that the parts excised by the government from the forty pages were properly found by the district court to be within exemption 5.

III

Plaintiffs also contend that the district court erred in not ordering disclosure by the Commission of minutes of meetings on projects other than Zion, Cook and Kewaunee, and all minutes of meetings of ACRS subcommittees.

They complain that the court declined to make an in camera inspection of these minutes which the government refers to as 9,000 pages of minutes. The Commission argues that the Fraley affidavits were sufficient to avoid the in camera inspection, and that the forty pages of minutes that were examined in camera by the court were "representative" of these 9,000 pages.

We have previously concluded that the Fraley affidavits were insufficient per se to exempt from disclosure minutes of meetings. If the Commission is correct in its argument that the forty pages are "representative" then substantial portions of the 9,000 pages should be disclosed.

The district court did not order the Commission to disclose minutes relating to projects other than Zion, Cook and Kewaunee, and the Commission therefore has not marshaled its arguments against disclosure. We must remand for the district court's determination of these 9,000 pages, since the minutes are not in the record for our in camera inspection. Our remand is not a "rigid" direction for that court to inspect in camera 9,000 pages. Judicial economy, the substantial impact that this suit might have on similar suits throughout the country in the sensitive area of nuclear power, and the mandate of Mink suggest that other tools are available to determine whether the minutes are exempt. The court may allow the Commission to supplement its affidavits or may take oral testimony concerning exemption. It may be possible for the Commission to select "representative" minutes for inspection.

For the reasons given the summary judgment is affirmed in part, reversed in part, and in part remanded for further consideration.

1. The plaintiffs sought other material possessed by the Commission through the ACRS including: (1) reports from the Division of Reactor Licensing to the ACRS dealing with Zion, Illinois Units Nos. 1 and 2; (2) all agenda of meetings, correspondence, reports, and memoranda possessed by the ACRS dealing with analysis of issuance of construction permits for Zion, Illinois Units Nos. 1 and 2.

2. Act of September 2, 1957, Pub. L. No. 85-256, § 5, 71 Stat. 576, amending 42 U.S.C. § 2011, et seq. (codified at 42 U.S.C. § 2039).

3. "(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

4. The Commission did not challenge this order. It delivered to plaintiffs substantially the complete minutes ordered. While the Commission has consistently asserted that it might have properly refused to surrender even unexcised minutes it does not ask this court to decide that issue.

5. After notice of appeal was filed the Commission "resubmitted" some and "submitted" other material for the district court's inspection. This material included preliminary drafts of environmental impact statements, memoranda, consultant reports and background material prepared for the ACRS. We ordered this material sent up to us for in camera inspection under the misapprehension that it was material relevant to all other civilian reactor projects. That material has already been returned to the district court.

6. Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda. 86 Har. L. Rev. 1047 (1973).