UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 8, 1985
The WASHINGTON POST COMPANY, Plaintiff,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant
The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, District Judge.
The Washington Post Company brought this action under the Freedom of Information Act, 5 U.S.C. § 552, seeking an order compelling defendants to produce for inspection and copying "Confidential Statement of Employment and Financial Interest" (HEW Form 474) filed by members of the advisory boards and committees of the National Cancer Institute, a division of the National Institute of Health. Each consultant who applies for a special government position, such as the peer review system at NCI, and who is not required to file public financial disclosure reports under the Ethics in Government Act, must complete a Form 474. Part I of this form requires each consultant to disclose all other federal and non-federal employment and to list "all organizations in which you, your spouse, minor child, partner, or an organization with which you are connected have financial interests which relate directly or indirectly to your consultancy duties."
The agency then reviews these statements to determine whether a conflict of interest exists.
Consultants who complete a Form 474 are given a limited pledge of confidentiality as follows:
Information to Appointee : Completion of this form is required for all experts and consultants and for other persons who work 130 days or less a year identified by the head of the principal operating component. The information to be furnished on this form is required by Executive Order 11222 and the regulations issued thereunder. The information you disclose will be used to determine whether a conflict exists between your employment and financial interests and the performance of your services for the Government. The information will be held in confidence and will not be disclosed except as the Chairman of the Civil Service Commission or the head of the principal operating component or designee may determine for good cause . . . Unless you provide the information requested on this form, the organization will not be able to utilize your services.
After this FOIA action was filed, the government agreed to release to the Washington Post the names of NCI consultants, their other federal employment, the results of HHS's review of the Forms (i.e., whether HHS found a conflict of interest in an individual case), and the name of the reviewing official. HHS refused, however, to disclose the consultants' non-federal employment and the lists of their financial interests relating to their consulting duties. On December 4, 1980, this Court granted the government's motion for summary judgment, holding that the disclosure of the remaining information would constitute a clearly unwarranted invasion of personal privacy and was therefore protected from disclosure under Exemption 6, 5 U.S.C. § 552(b)(6).
In reaching that decision, the Court relied on Association for Women in Science v. Califano, 185 U.S. App. D.C. 19, 566 F.2d 339 (D.C.Cir.1977), in which the Court of Appeals held the same Forms 474 to be privileged from discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure.
The Washington Post appealed and the Court of Appeals reversed, stating that discovery of information under the Federal Rules and disclosure under Exemption 6 of the FOIA involve different issues, and that, although the conflict of interest information was not discoverable under the Federal Rules, it was not exempt from disclosure under Exemption 6. Washington Post Co. v. United States Department of Health & Human Services, 223 U.S. App. D.C. 139, 690 F.2d 252, 255 (D.C.Cir.1982). The court went on to hold, however, that the list of consultants' financial interests is "financial" information within the meaning of Exemption 4, and on that basis it remanded the case to this Court for a determination whether disclosure of this information was likely to impair the government's ability to obtain similar information in the future.
After the instant case was remanded, the Supreme Court issued its decision in United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984). In that case, the Supreme Court decided that confidential witness statements made to air crash safety investigators -- which the Court of Appeals for this Circuit had previously held were privileged with respect to pretrial discovery in Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (D.C.Cir.1963) -- are also protected from disclosure under Exemption 5 of the FOIA.
The Court reasoned that if litigants could obtain through the FOIA material that is normally privileged, it would produce the anomalous result that the FOIA could be used to supplement civil discovery -- a construction of the FOIA which, it stated, it had previously rejected. 104 S. Ct. at 1494.
The government now argues on the basis of Weber, that the confidential report privilege which protects Forms 474 from discovery also protects them from disclosure under the FOIA.
This Court agrees.
Exemption 4 of the FOIA protects from disclosure financial information which is "privileged or confidential." The Court of Appeals indicated in this case that, in light of the legislative history's explicit reference to particular privileges,
the two words should not be treated as synonymous. Washington Post Co., supra, 690 F.2d at 267 n. 50. Thus, information which is not confidential under the test in National Parks & Conservation Association v. Morton, 162 U.S. App. D.C. 223, 498 F.2d 765, 770 (D.C.Cir.1974), may nevertheless be privileged and exempt from disclosure under the FOIA.
However, the Court of Appeals went on to warn that not every privilege recognized in civil discovery is necessarily to be applied as an absolute under FOIA,
but the discovery rules should be applied only "by way of rough analogies." EPA v. Mink 410 U.S. 73, 86, 93 S. Ct. 827, 835, 35 L. Ed. 2d 119 (1976).
That reasoning seems to have been rejected in Weber, and this Court, of course, is obliged to follow the later Weber decision.
In Association for Women in Science v. Califano, supra, the court held that the "confidential report privilege" protects from discovery the same information that the Washington Post seeks in this FOIA action -- information concerning potential conflicts of interests provided by government consultants on Forms 474. The confidential report privilege, which has also been referred to as the required reports privilege and the official information privilege,
may be claimed only by the government and is based on the governmental interest in protecting the flow of information concerning the subject of the report in question. 566 F.2d at 343. This executive privilege, like the one at issue in Weber, is not novel nor has it ever been seriously challenged.
To be sure, the confidential report privilege is not specifically mentioned in the legislative history of the FOIA. However, it is clear, in light of Weber, that a FOIA exemption can incorporate other specific discovery privileges even though they are not explicitly identified by the Congress. Weber, supra, 104 S. Ct. at 1493-94.
In fact, the legislative history of the FOIA indicates that Congress intended to incorporate governmental privileges where, as here, "confidentiality is necessary to ensure frank and open discussion and hence efficient governmental operations." Id. at 1495. The Women in Science court found that the disclosure of the Forms 474 very likely would impair the government's ability to acquire this information in the future. 566 F.2d at 346. For the reasons stated in Weber, the policies underlying this discovery privilege would be thwarted if a party could obtain through the FOIA information not discoverable under the Federal Rules.
This conclusion is bolstered by the Ethics in Government Act, 5 U.S.C.App. §§ 201 et seq., which specifically exempts from its financial disclosure requirements, any part-time "special" government employee who is "not reasonably expected to perform the duties of his office or position for more than sixty days in a calendar year." 5 U.S.C.App. I § 201(h).
The House Judiciary Committee explained the reason for this exclusion as follows:
The committee has been advised that this amendment has direct relevance to the operations of the Government. Several candidates for nomination to important Governmental advisory boards, who serve purely in a part-time capacity, requested that their nominations be withdrawn because of the public disclosure provisions. It was intended that no public disclosure be required in the case of these short term employees, and this amendment assures that this intent is implemented.
H.R.Rep. No. 96-114(II), 96th Cong. 1st Sess. 10 (1979), reprinted in 1 U.S.Code Cong. & Ad.News 1979, p. 144, at 160. Disclosure of the financial affairs of these short-term advisory committees would contravene the intent of Congress to shield this information from public dissemination.
For the reasons stated, it is the Court's conclusion that, in view of Weber Aircraft, Women in Science, and the Ethics in Government Act, the documents at issue are privileged and exempt from disclosure under Exemption 4. Summary Judgment will therefore be granted to the government.