The opinion of the court was delivered by: OBERDORFER
Plaintiff is an oil refiner seeking to enjoin the public disclosure of certain information concerning its past business activities by officials of the Economic Regulatory Administration ("ERA") of the Department of Energy ("DOE").
A complete copy of the PRO has been served on the plaintiff, and another version, from which the information at issue in this lawsuit has been redacted, has been made available to the public. This dispute concerns whether the ERA may disclose the currently-redacted material. It is plaintiff's theory that the ERA's public release of the redacted information, which was submitted to ERA by the plaintiff only in response to compulsory subpoena
and mandatory reporting regulations,
would constitute an illegal disclosure of confidential commercial and financial information in violation of Exemptions 3 and 4 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(3), (4) (1982) and the Trade Secrets Act, 18 U.S.C. § 1905, as well as the agency's own regulations, 10 C.F.R. § 1004.11(f) (1985). Accordingly, plaintiff asserts any rights it may have as a submitter of information to prevent public disclosure of this information.
The guidelines for administering cases such as this have already been set out by the Supreme Court and our Court of Appeals. First, the Supreme Court has made clear that submitters of information to federal agencies have no private right of action under either FOIA or the Trade Secrets Act to enjoin disclosure of the information. See Chrysler Corp. v. Brown, 441 U.S. 281, 290-94, 316-18, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979). Instead, as indicated in Chrysler and reiterated by the Court of Appeals of this Circuit, "an information-submitter's right to judicial review of an agency's decision to disclose submitted records arises [only] under the APA." National Organization for Women v. Social Security Admin., 237 U.S. App. D.C. 118, 736 F.2d 727, 745 (D.C. Cir. 1984) (per curiam) (McGowan & Mikva, JJ., separate opinion concurring in the result). Under the APA, a submitter of information is entitled to seek to show that the agency's decision to disclose the information in question was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or . . . failed to meet statutory, procedural, or constitutional requirements." Id. (quotation marks and citations omitted). As summarized by our Court of Appeals,
the "focal point for judicial review" in such cases "should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 [36 L. Ed. 2d 106, 93 S. Ct. 1241] (1973) (per curiam). See also United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 [10 L. Ed. 2d 652, 83 S. Ct. 1409] (1963) ("in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, . . . consideration is to be confined to the administrative record and . . . no de novo proceeding may be held").
Thus, an information-submitter may seek to enjoin the disclosure of information that it has given to the agency, but such actions are limited to suits under the APA, and, except where a plaintiff can show that the agency's factfinding procedures are "severely defective," id., the judicial role is limited to a review of the pre-existing administrative record. See id. at 745-47 (no de novo review of claim that disclosure would violate FOIA standards); Chrysler Corp. v. Brown, supra, 441 U.S. at 318 (no de novo review of claim that disclosure would violate Trade Secrets Act).
(1) If any person filing a document with the DOE . . . claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. § 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970), or is otherwise exempt by law from public disclosure, and if such person requests the DOE . . . not to disclose such information, . . . the person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non-disclosure of the information for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential. . . .
(2) The DOE . . . retains the right to make its own determination with regard to any claim of confidentiality. Notice of the decision by the DOE . . . to deny such claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.
10 C.F.R. § 205.9(f) (emphasis added).
The record in this case indicates that plaintiff did purport to assert a claim of confidentiality when it submitted the information at issue, though it did so with no elaboration, and in one respect may have done so incompletely. For example, a cover letter from plaintiff's counsel, dated August 6, 1984, that accompanied one such submission recites that
the enclosed information is confidential and exempt from disclosure pursuant to the Freedom of Information Act (5 U.S.C. § 552) et seq. [sic] and is information referred: to in 18 U.S.C. § 1905. Accordingly, prior to any disclosure, Canal must be ...