ELR Citation: ELR 20830
No(s). 90-15263 (9th Cir. Mar 19, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) properly refused a Freedom of Information Act (FOIA) request to release conflict of interest forms filed by members of EPA's scientific advisory panel (SAP) and scientific advisory board (SAB). An attorney for an environmental organization filed a FOIA request for copies of financial disclosure statements filed by SAP and SAB scientists between 1981 and 1985, which EPA refused based on FOIA exemptions 3, 4, and 6. Prior to 1985, §207(a) of the Ethics in Government Act (EGA) authorized the president to require officers and employees ofthe executive branch to submit conflict-of-interest reports listing corporations and other institutions with which they are associated or in which they have financial interests. In 1985, §207(a) was amended to provide that information required under the section is confidential and may not be disclosed to the public. The district court held that the information requested was properly withheld under FOIA exemption 3, which exempts matters specifically exempted from disclosure by other statutes. The district court found that the EGA qualifies as a withholding statute under exemption 3 and that the requested material was covered by that statute.

The court first holds that pre-1985 §207 qualifies as a withholding statute under FOIA exemption 3 because it leaves no discretion to EPA whether to disclose to the public the confidential reports filed by SAP and SAB members. Section 201(h) specifically exempted from public disclosure the reports required under §207(a) of the pre-1985 EGA that were filed by individuals not reasonably expected to perform duties more than 60 days a year. The members of the SAP and SAB fall within this category. Moreover, the 1985 amendment to §207 providing mandatory nondisclosure language clarifies, rather than changes, the pre-1985 law.

The court next holds that the financial information sought in the FOIA request was withheld pursuant to Executive Order (E.O.) No. 11222, which is within the scope of EGA §207. Because the president required financial information under E.O. No. 11222 before the EGA was passed in 1978, there was no need to promulgate new regulations under §207 to obtain the same information. Thus, nothing in the EGA prohibited the President from continuing to collect information under the existing executive order and that information is within the scope of §207's exemption 3 from FOIA.

A concurring judge would hold that FOIA exemption 6, which exempts personnel and medical files whose disclosure would constitute an invasion of personal privacy, provides a basis for withholding the information. Another concurring judge would hold that exemption 3, but not exemption 6, provides a basis for withholding the requested information.

Counsel for Plaintiff-Appellant
Patti A. Goldman
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 833-3000

Counsel for Defendant-Appellee
Jason R. Baron
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Alarcon, J. (before Kozinski and Rymer, JJ.):