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Center for Public Integrity v. Department of Energy

March 25, 2002


The opinion of the court was delivered by: Henry H. Kennedy, Jr., United States District Judge.


By this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. ' 552, the Center for Public Integrity ("CPI") seeks to compel the Department of Energy ("DOE") to disclose records in its possession related to the federal government's sale of Naval Petroleum Reserve Numbered-1 ("NPR-1"). Before the court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the respective oppositions thereto, and the summary judgment record, the court concludes that CPI's motion must be granted because DOE has not met its burden of showing that the records are exempt from FOIA's disclosure requirements.


A. Legal Framework

Congress enacted FOIA to promote "a policy of broad disclosure of Government documents" and "ensure 'an informed citizenry, vital to the functioning of a democratic society.'" Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982) (internal citations omitted)). In so doing, however, Congress acknowledged that "legitimate governmental and private interests could be harmed by release of certain types of information." Id. In order to balance these competing interests, Congress crafted nine exemptions to FOIA under which an agency may withhold information. See 5 U.S.C. § 552(a)(4)(B) & (b)(1)-(9). In the present case DOE invokes Exemptions 3 and 4, see id. at § 552(b)(3) & (b)(4), as grounds for denying CPI's request for information relating to the sale of NPR-1.

Under Exemption 3, an agency may withhold records "specifically exempted from disclosure by statute" if the statute affords the agency no discretion on disclosure, establishes particular criteria for withholding the information, or refers to the particular types of material to be withheld. See id. at § 552(b)(3)(A) & (B). The Supreme Court has established a two-part test for determining whether information is exempt from disclosure under Exemption 3: 1) the asserted statute must qualify as an exemption statute; and 2) the information requested must fall within the statute. See CIA v. Simms, 471 U.S. 159, 167 (1985). CPI concedes that the statute relied upon by DOE as the basis for withholding the NPR-1 records, Section 821(b)(m) of the National Defense Authorization Act for Fiscal Year 1997 *fn1 , is an exemption statute for purposes of Exemption 4, but contends that the records do not fall within the statute.

Under Exemption 4, an agency may withhold from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Under the law of this Circuit, information is "confidential" for purposes of Exemption 4 if it is submitted "involuntarily" and is "likely" to 1) "cause substantial harm to the competitive position of the person from whom the information was obtained"; or 2) "impair the government's ability to obtain necessary information in the future." Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

B. Factual Background

NPR-1 is a tract of approximately 47,000 acres of land located in Elk Hills, California, 25 miles south of Bakersfield. In the National Defense Authorization Act for Fiscal Year 1996 ("the Act"), Pub. L. No. 104-106, ' 3412(a), 110 Stat. 186, 631-32 (1996), Congress directed DOE to sell "all right, title, and interest of the United States in and to all lands owned or controlled by the United States" inside NPR-1. The Act required DOE to "set the minimum acceptable price for the reserve," to solicit offers for the purchase of the reserve, and then to identify the "highest responsible offer or offers" that "meet or exceed the minimum acceptable price...." Id. at § 3412(d)(3), (f)(2).

The Act additionally required DOE to "retain the services of an investment banker or an appropriate equivalent financial adviser to independently administer" the sale of NPR-1 "in a manner that maximizes sale proceeds to the Government" and "in a manner consistent with commercial practices." Id. at 3412(e)(1). Pursuant to this provision, DOE hired C.S. First Boston and Petrie Parkman as financial advisers. These advisers contacted over 200 companies from the United States and abroad to assess their potential interest in NPR-1, prepared and distributed a marketing brochure and data sets to interested parties, held technical briefings, and required prospective participants in the sale to execute confidentiality agreements.

DOE then issued a Solicitation of Offers for the sale of the government's interest in NPR-1, structured as one operating working interest representing seventy-four percent of the government's interest, and thirteen non-operating working interests each representing two percent of the government's interest. Qualified parties were allowed to submit bids on one, some, or all of the segments and to submit multiple alternative bids. The offer form that DOE required the offerors to submit stated "Privileged, Confidential, and Highly Sensitive Divestiture Process Information." On October 6, 1997, DOE announced that it had accepted the offer of Occidental Petroleum Corporation to purchase the reserve for $3.65 billion, making the sale the largest privatization in United States history.

In January 2000, CPI filed a FOIA request with DOE, seeking in pertinent part "[t]he names of all entities that placed bids on NPR-1, any portion thereof, and the amounts of all bids." Pl.'s Compl. Ex. 1 at 1. In April 2000, DOE's Office of Fossil Energy ("FE") issued a determination letter denying this request on the grounds that the records sought were exempt from disclosure under Exemption 4 of FOIA. On CPI's appeal, DOE's Office of Hearings and Appeals ("OHA") held that the records were not exempt under Exemption 4 and remanded the matter to FE with instructions "to either release all or part of the withheld information or provide a new justification for any continued withholdings." Pl.'s Compl. Ex. 3 at 8.

On remand, FE denied CPI's request again, this time relying on Exemption 3 in addition to Exemption 4. On CPI's second appeal, OHA held that the records were exempt from disclosure under Exemption 3 and ...

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