space for comments and conclusions. During the appeal Occidental stated its objection to the lack of specificity of the FOIA Officer's determination, which it correctly felt hindered its ability to take an appeal on a reasoned basis.
The SEC's General Counsel then obtained full written factual and legal advice from his staff, none of which is part of the administrative record or otherwise revealed to Occidental or the Court. Thereafter, he gave his generalized rulings without examining the papers himself and without discussing Occidental's claims by document or category of documents.
The result of this flawed process is now before the Court. Since Occidental has never had an opportunity to address the issues on appeal before the General Counsel, whose ruling provides no basis for the Court to review the evidence underlying his ruling on a document-by-document basis, this matter must be remanded to the SEC for further proceedings.
To understand the obvious need for a remand it is appropriate to set out the precise role of the District Court in reviewing administrative rulings disclosing documents against a reverse-FOIA demand for continued confidential treatment.
First, the Court must identify the administrative record. Here, in spite of the Court's best efforts, the precise nature of the administrative record remains in doubt. Uncertainties involve, for example, the lack of: (1) any written record of Occidental's oral substantiations; (2) the work sheets submitted by the FOIA Officer to the General Counsel's staff; and (3) newspaper sources apparently relied on by the General Counsel.
Second, where the issue is raised, the Court must be satisfied the administrative record adequately defines the issues and reflects the path by which the agency reached its result. This requirement of § 10 of the Administrative Procedure Act, 5 U.S.C. § 706 (1982), has not been met. The FOIA Officer's initial decision in this proceeding failed to comply with § 10 inasmuch as it did not indicate the supporting facts or legal conclusions relied on and therefore left Occidental without adequate notice or opportunity to be heard on appeal to the decision maker who, again, acted without notice. See National Organization for Women v. Social Security Administration, 736 F.2d 727, 738-41 (D.C. Cir. 1984) (per curiam) (Robinson, C.J., concurring in result); id. at 745-47 (McGowan & Mikva, JJ., concurring in result).
Third, the Court must determine whether or not rulings are supported by substantial evidence and are rational. With little or no matching of facts against the specific documents, generalized statements that ignore claims advanced by a reverse FOIA objector are nonreviewable, as the present record illustrates.
One alternative to remand suggested by Occidental -- discovery followed by document-by-document review by the Court -- is entirely inappropriate. While there are many open-ended issues which could perhaps be clarified by discovery, development of additional facts in this fashion will not hasten resolution. As a practical matter, this Court cannot conduct such a de novo-type hearing in a voluminous matter such as this, in an attempt to identify reasons supporting the administrative ruling, and certainly has no obligation to do so. Id. at 745-47 (McGowan & Mikva JJ., concurring in result); see also Worthington Compressors, Inc. v. Costle, 213 U.S. App. D.C. 200, 662 F.2d 45, 49 (D.C. Cir. 1981). Nor can the agency bolster its case by presenting further reasons or urging that assumptions were made by the deciding official which the official did not specifically note himself. AT & T Information-Systems, Inc. v. GSA, 258 U.S. App. D.C. 254, 810 F.2d 1233, 1236 (D.C. Cir. 1987) (per curiam).
Because of the manner in which the administrative proceedings were conducted in this case, the Court is not able to perform its role. Simply by way of example, it should be noted that the SEC's motion leaves many unresolved issues of fact. There is no index placing the General Counsel's ruling against specific documents so that a court could determine precisely why any particular document is being disclosed. The prior release of information noted by the SEC, which information Occidental claims is still confidential, is only vaguely indicated and not entirely reproduced in the administrative record. A public news report of the inquiry, moreover, cannot alone make all underlying documents containing commercial information automatically public if not found in the news report. Nor can it even be determined how the Commission views the governments of Venezuela and Libya which Occidental has factually identified as its competitors in certain important respects.
The seed of this difficulty is found in the obvious failure of the Commission's administrative process. Since the FOIA Officer gave no reasons for overruling Occidental's showing of confidentiality of the commercial information there was nothing to appeal. Obviously, if the FOIA Officer had indexed the documents with an indication of his rulings, document by document, cross-referenced to information supplied by Occidental, this could have been avoided. The General Counsel compounded the difficulty by refusing to release the staff memo which it is said presents a factual and legal basis for his ruling. He had a right to structure his consideration in this manner, see United States v. Morgan, 313 U.S. 409, 421-22, 85 L. Ed. 1429, 61 S. Ct. 999 (1941); National Small Shipments Traffic Conference, Inc. v. ICC, 233 U.S. App. D.C. 336, 725 F.2d 1442, 1450 (D.C. Cir. 1984), but by so doing he continued to cloak the entire matter with such secrecy that his decision as announced affords no basis on the record to even analyze the merits of his actions.
The Court recognizes that Occidental's objections to the SEC's reverse-FOIA process requires a test of each page of paper to be disclosed.
This proper tactic adds to short-term delay. Nonetheless, considering the years of further work necessary to complete processing of the Weinberg blunderbuss request, which encompasses approximately 210 boxes of documents, time benefits will later accrue to the requestor in the long haul if procedures are set into proper order from the outset.
The Commission's position in processing Occidental's confidential substantiations for disclosure simultaneously with its review of the underlying documents is self-defeating. When a court test of the Commission's rulings is a certainty, it is surely an irrational act not to accommodate a concern of one in Occidental's position, by at least reserving for separate consideration the disclosure of the substantiation materials until after the validity of the disclosure decision pertaining to the documents themselves has been judicially tested.
An oral approach to these problems leads to misunderstanding, as it has here. But anyone required to justify confidential treatment should not have his hands tied behind his back from the outset so that he is unable to put his case fully and fairly before the decider on paper. Serious questions of policy and fair play are involved.
The SEC action cannot be sustained on the present record. Clear defects in the administrative process have been revealed and these must be remedied and can only be accomplished by a remand. The Court must vacate the decision of the Commission to disclose pending further proceedings on remand before the agency to correct the deficiencies the Court has noted. What is needed is an agency decision reached under procedures that meet the requirements of the Administrative Procedure Act which is also sufficiently precise to enable prompt informed judicial review. The Commission's motion for summary judgment is denied, the agency's decision to disclose is vacated, and the case is remanded to the Commission for further proceedings consistent with this decision. An appropriate Order is filed herewith.
For reasons fully stated in a Memorandum filed this day, it is hereby
ORDERED that defendant's motion to dismiss or, alternatively, for summary judgment, is denied; and it is further
ORDERED that defendant's decision to disclose certain documents pursuant to a Freedom of Information Act request of Mr. Steven Weinberg over Occidental's objections is vacated; and it is further
ORDERED that the case is remanded to defendant for further proceedings consistent with the accompanying Memorandum.