United States Court of Appeals, District of Columbia Circuit
April 10, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-01282)
Cmar argued the cause and filed the briefs for appellants.
Utgoff Braswell, Assistant United States Attorney, argued the
cause for appellee. With her on the brief was R. Craig
Lawrence, Assistant United States Attorney.
Before: Kavanaugh, Circuit Judge, and Ginsburg and Randolph,
Senior Circuit Judges.
Kavanaugh, Circuit Judge
case concerns the relationship between two statutory
provisions: Exemption 4 of the Freedom of Information Act and
Section 308 of the Clean Water Act.
4 of FOIA authorizes agencies to withhold "trade secrets
and commercial or financial information obtained from a
person and privileged or confidential." 5 U.S.C. §
552(b)(4). Section 308 of the Clean Water Act authorizes EPA
to obtain records from power plants and states that those
records "shall be available to the public" unless
EPA determines that the records "would divulge methods
or processes entitled to protection as trade secrets."
33 U.S.C. §§ 1318(a), (b).
problem is that Exemption 4 and Section 308 appear to
conflict in certain circumstances. Exemption 4 exempts from
disclosure both trade secrets and certain commercial
and financial information. Section 308 exempts from
disclosure only trade secrets, but it seemingly
requires disclosure of commercial and financial information.
case, several environmental groups - Environmental Integrity
Project, Sierra Club, and Earthjustice - requested records
from EPA that the agency had previously obtained from power
plants under Section 308. All parties agree that the records
requested by the environmental groups do not qualify as trade
secrets (which are exempt under both Section 308 and
Exemption 4) but do qualify as "commercial or financial
information" under Exemption 4 of FOIA. 5 U.S.C. §
552(b)(4). As a result, the records requested by the
environmental groups are exempt from disclosure under
Exemption 4 of FOIA but seemingly must be disclosed under
Section 308 of the Clean Water Act.
statute prevails in that circumstance? The Administrative
Procedure Act directly answers that question. Section 559 of
Title 5 provides that FOIA exemptions apply unless a later
statute expressly supersedes or modifies those exemptions.
The statute states: "Subsequent statute may not be held
to supersede or modify" the APA, of which FOIA is a
part, "except to the extent that it does so
expressly." Id. § 559 (emphasis
308 is the later statute here: Exemption 4 of FOIA was
enacted in 1967, while Section 308 was enacted in 1972.
Section 308 does not expressly supersede Exemption 4.
Therefore, EPA permissibly invoked Exemption 4 to deny the
environmental groups' FOIA request.
Congress had wanted Section 308 to supersede Exemption 4,
Congress could have drafted express language to that effect,
as it has in other statutes. For example, when a FOIA request
is submitted to EPA for certain records obtained by the
agency under the Toxic Substances Control Act, "the
Administrator may not deny the request on the basis of
section 552(b)(4)" - that is, Exemption 4. Frank R.
Lautenberg Chemical Safety for the 21st Century Act, Pub. L.
No. 114-182, § 11, 130 Stat. 448, 483 (2016) (to be
codified at 15 U.S.C. § 2613(b)(5)). Similarly, the
Secretary of Transportation and the EPA Administrator
"may withhold information under section 552(b)(4)"
- Exemption 4 - "only if the Secretary or Administrator
decides that disclosure of the information would cause
significant competitive damage." 49 U.S.C. §
32910(c). By contrast, when enacting Section 308, Congress
did not use language expressly superseding Exemption
environmental groups retort that the phrase "shall be
available to the public" in Section 308 would be
meaningless if Section 308 did not require disclosure in
these circumstances. But the suggestion that Section 308
would be meaningless under our interpretation is not correct,
at least in historical context. Under FOIA, federal courts
may order agencies to disclose only "agency
records." 5 U.S.C. § 552(a)(4)(B). As of 1972 when
Section 308 was enacted, it was not entirely clear that
records obtained by EPA from power plants would qualify as
"agency records" subject to disclosure. Cf.
Forsham v. Harris, 445 U.S. 169, 182-84 (1980). Absent
Section 308, therefore, it would not have been clear whether
records obtained from power plants were subject to disclosure