The opinion of the court was delivered by: ROYCE C. LAMBERTH
This matter comes before the court on cross-motions for summary judgment, and plaintiff's motion for leave to file a supplement to the administrative record.
In November of 1990, the National Aeronautics & Space Administration ("NASA") contracted with McDonnell Douglas Aerospace ("MDA") for the purchase of Delta II rockets and related launch services. In 1991 NASA received a Freedom of Information Act ("FOIA") request for information concerning the Delta II contract, and decided to release, among other things, certain contract line item prices ("CLINs").
MDA filed suit under the Administrative Procedures Act (APA), claiming that NASA's decision to release the CLINs was arbitrary and capricious.
MDA claimed that the disputed CLINs were protected by exemption four of FOIA, which excludes from disclosure "trade secrets and commercial or financial information obtained from a person [which are] privileged or confidential."
5 U.S.C. § 552(b)(4). This court found the CLINs to be confidential under exemption four of FOIA and issued an injunction prohibiting NASA from releasing the "contract line item prices [CLINs] contained in Section B.2" of the contract. McDonnell Douglas Corporation v. National Aeronautics and Space Administration, 1992 U.S. Dist. LEXIS 598, No. 91-3134 (D.D.C. Jan. 24, 1992) ("McDonnell I").
In this case, McDonnell Douglas seeks once again to prevent information concerning the Delta II contract from being released pursuant to a FOIA request. After receiving another FOIA request for the Delta II contract in 1994, NASA determined that certain termination schedule percentages and secondary payload prices in the Delta II contract were releasable under FOIA.
NASA also reviewed the releasability of the CLINs that were enjoined from disclosure in McDonnell I. The agency determined that the CLINs were no longer confidential, and that if the court modified the existing injunction the CLINs would be released. MDA once again filed suit under the APA claiming that NASA's decision to release the information at issue was arbitrary and capricious, and that the information was covered by exemption four of FOIA, 5 U.S.C § 552(b)(4).
In deciding whether to release the CLIN information pursuant to the latest FOIA request, NASA exceeded its authority by conducting an informal agency adjudication regarding release of information already enjoined from disclosure. When a FOIA request is received for information previously enjoined from disclosure, the agency does not have the authority to adjudicate whether the information should be released. In such a case there is "simply . . . no discretion for the agency to exercise." GTE Sylvania Corp. v. Consumers Union, 445 U.S. 375, 386, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980). It is an "established doctrine that persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed." Id.
In reviewing the releasability of the CLINs, NASA imposed on MDA the burden to justify why information already subject to a permanent injunction should continue to be exempt from disclosure. NASA simply does not have the authority to require MDA to justify again and again why information, the disclosure of which has been enjoined by a federal court, should continue to be enjoined. If NASA desires to have the existing injunction modified or dissolved it has the burden to make the appropriate showing in court, not within its own agency.
NASA submits that when information previously exempted from disclosure is sought in subsequent FOIA requests, changed circumstances necessitate a re-examination of the applicability of the exemption. If this case involved a previous agency decision to withhold information or an injunction that was limited to a single FOIA request, NASA's argument would have some merit. But when a permanent injunction against release of specific information already exists, the agency simply lacks the discretion to decide whether the information should be released. The court therefore concludes that only two categories of pricing information are at issue in this dispute: (1) termination schedule percentages, and (2) secondary payloads.
The second issue the court must decide is what properly constitutes the administrative record in this case. MDA claims that the certified administrative record is incomplete, and seeks to add nine letters which it argues will give this court a more accurate basis upon which to review NASA's decisions. Eight of the letters in question represent previous NASA decisions not to release termination schedule percent ages in the Delta II contract pursuant to other FOIA requests. The last document is a letter from MDA to NASA returning an enclosure previously sent by NASA.
Plaintiff stresses that the proposed supplements to the record were all in the agency's possession during the administrative process, and that five of the letters were specifically referenced in one of MDA's submissions to NASA. MDA's goal is to illustrate that NASA departed from prior decisions without adequately explaining the inconsistent determination. Plaintiff contends that the court will be severely handicapped in addressing this issue if NASA's prior decisions regarding the Delta II contract are not in the record.
NASA characterizes MDA's motion to supplement the record as an improper attempt to reopen the administrative process for submission of evidence following the agency's decision. The agency argues that its responses to prior FOIA requests, some from years earlier and most from different requesters, carry no precedential value because of the agency's duty to consider each individual request separately. Defendant also claims that contract modifications containing the information at issue were not executed until after the earlier FOIA requests, and that the information in the present request is therefore different from the information sought in prior requests.
After closely scrutinizing the administrative record, the court finds that five of the nine proposed supplements were improperly omitted from the administrative record, and will therefore be permitted as supplements.
Although NASA did not examine these additional documents, they were specifically referenced in an MDA letter to NASA. The letter referencing the documents at issue was submitted late in the administrative period, but still considered by NASA and included in the certified record.