Energy Research Foundation v. Defense Nuclear Facilities Safety Board

Citations: 917 F.2d 581; 286 U.S. App. D.C. 359; 18 Media L. Rep. (BNA) 1294; 1990 U.S. App. LEXIS 18722Docket: 90-5096

Court: Court of Appeals for the D.C. Circuit; October 26, 1990; Federal Appellate Court

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The Defense Nuclear Facilities Safety Board (DNFSB) asserts it is not an "agency" under the Freedom of Information Act (FOIA) and the Government in the Sunshine Act, thus it does not comply with these statutes regarding public access to records and meetings. Appellants, consisting of two organizations and an individual, sought a declaratory judgment and injunctive relief to mandate the Board's compliance. The district court ruled in favor of the Board on summary judgment, determining FOIA and the Sunshine Act do not apply. The appellate court, however, reversed this decision.

Established in 1988, the DNFSB operates independently of the Department of Energy (DOE) and is tasked with overseeing facilities involved in atomic weapons production and related research. It consists of five members appointed by the President with Senate approval, each possessing expertise in nuclear safety. The Board's responsibilities include reviewing standards for the design and operation of DOE's defense nuclear facilities, investigating practices that may threaten public health, and recommending safety measures to the Secretary of Energy.

The Secretary of Energy must respond in writing to the Board's recommendations. If accepted, a plan for implementation is required; if rejected, the Board must reconsider. Persistent rejection necessitates an explanation from the Secretary to Congress. The Board lacks enforcement authority but must publish its recommendations and the Secretary's responses in the Federal Register. Additionally, the Board can conduct hearings, compel testimony, require document production, hire staff, and develop regulations, while also having access to classified information from the Secretary.

The Board handles sensitive information vital to national defense and public health, which leads it to believe that even if subject to the Freedom of Information Act (FOIA) and the Sunshine Act, exceptions would allow it to close meetings and withhold records. Whether the Board qualifies as an "agency" under these statutes hinges not on exemptions but on the statutory definition of "agency." FOIA defines "agency" to include various governmental entities in the executive branch, as referenced in the Sunshine Act. Congress's creation of the Board mirrors the language used in the FOIA definition, stating it is an "independent establishment in the executive branch." Courts typically interpret identical terminology consistently across statutes. The inclusion of "establishment" in the FOIA definition aimed to broaden the coverage to include entities potentially not covered by the Administrative Procedure Act (APA). Historical context shows that several federal entities, established similarly to the Board, were previously included in the definition of "agency" under various statutes. Additionally, the term "independent establishment" is previously defined in Title 5 as an executive branch entity that is not an executive department.

The Board is required to comply with the Freedom of Information Act (FOIA) and the Sunshine Act, as there is no indication from Congress that it intended to exempt the Board from these laws. The Board's statute references FOIA, particularly noting that the Secretary can regulate the dissemination of certain unclassified information in accordance with FOIA exemptions. The Board claims that its statute, 42 U.S.C. Sec. 2286d(a), makes the Sunshine Act inapplicable, arguing that it must publicly disclose recommendations only after the Secretary of Energy has reviewed them, thereby preventing open meetings to discuss recommendations.

However, even if this interpretation were accepted, the Board's status as an "agency" is unaffected, as it conducts meetings on matters beyond recommendations to the Secretary. The statute allows for such meetings without similar restrictions. The Board's reasoning would create an inconsistent application of its agency status, which is not supported by the Sunshine Act or FOIA. Even if the Board's statute required closed meetings, it would still qualify as an "agency," as both laws provide exceptions for statutory directives that conflict with public meeting requirements.

The Board also argues for a specific interpretation of "agency" based on the "sole function" test from Soucie v. David, asserting that this was the basis for the district court's ruling in its favor. The Soucie decision determined that the Office of Science and Technology (OST) was an "agency" because it engaged in functions beyond mere advisory roles. A later case established that entities with independent staff, broad investigative powers, and decision-making authority should also be classified as "agencies."

Congress expanded the Freedom of Information Act (FOIA) in response to the Soucie case, defining "agency" to include any executive branch establishment, except for the President's immediate personal staff. The Supreme Court upheld this distinction in Kissinger v. Reporters Committee for Freedom of the Press, ruling that a Presidential adviser does not constitute an "agency" under FOIA. Subsequent cases have tested this definition; the Council on Environmental Quality was deemed an "agency" due to its evaluative functions, while the Council of Economic Advisers was not, as its role was limited to advising the President. 

The Board in question, which investigates and evaluates, exceeds mere advisory capacities, possessing legislative powers typically associated with agencies. It conducts investigations related to the Energy Department's standards and imposes requirements on the Secretary of Energy, fulfilling the criteria established in Soucie for being classified as an "agency." There is no legislative intent evident that would exempt the Board from FOIA or the Sunshine Act, especially since the Department of Energy, which collaborates with the Board, is itself subject to FOIA. Thus, the Board is considered an "agency" under both statutes. The decision was reversed and remanded.