[00:00:02] Speaker 00: Case number 16-5109, Environmental Integrity Project at L Appellants versus Environmental Protection Agency. [00:00:10] Speaker 00: Mr. Smarr from the Appellants, Ms. [00:00:12] Speaker 00: Roswell for the Appellate. [00:00:18] Speaker 05: Good afternoon, Your Honors. [00:00:19] Speaker 05: Good morning. [00:00:21] Speaker 05: May it please the Court, my name is Thomas Smarr, and I'm appearing today on behalf of the Appellants in this matter, Environmental Integrity Project, Earth Justice, and Sierra Club. [00:00:30] Speaker 05: I'd like to reserve at least five minutes of my time for a bottle. [00:00:35] Speaker 05: Section 308B of the Clean Water Act says that technical information gathered by EPA for use in Clean Water Act rule makings shall be available to the public unless its disclosure would divulge methods or processes entitled to protection as trade secrets. [00:00:53] Speaker 05: In administrative proceedings below, EPA itself found that the information appellants had requested under FOIA in this case would not reveal any trade secrets. [00:01:04] Speaker 05: That should have been the end of the matter. [00:01:06] Speaker 05: After finding that disclosure would not divulge any trade secrets, EPA should have promptly released it to appellants under FOIA and EPA's own regulations. [00:01:17] Speaker 05: In ruling against appellants below, the district court erroneously assumed that there was a conflict between the Clean Water Act and FOIA instead of first attempting to read the two statutes consistently. [00:01:27] Speaker 05: FOIA is a pro-disclosure statute whose exemptions are discretionary rather than mandatory and must be narrowly construed unless another statute such as the Trade Secrets Act requires an agency to keep certain information confidential. [00:01:46] Speaker 05: But the Trade Secrets Act further provides that information is not confidential if its disclosure is authorized by law. [00:01:54] Speaker 05: Such is the case with the information that is subject to the public disclosure provision of Section 308B of the Clean Water Act. [00:02:02] Speaker 04: You say there's no conflict, right? [00:02:06] Speaker 04: Yes. [00:02:06] Speaker 04: But if it would be exempt under Exemption 4, and it would be disclosed under Section 308, [00:02:16] Speaker 04: That's a conflict. [00:02:18] Speaker 05: Your Honor, before finding that there's a conflict, it's the responsibility of the court to attempt to interpret the statutes consistently to give their language full effect. [00:02:30] Speaker 04: And if we start with Exemption 4, as you know, there's the language that says subsequent statutes may not be held to supersede or modify, except the extent that it does so expressly. [00:02:45] Speaker 04: Right. [00:02:46] Speaker 05: That's correct, Your Honor. [00:02:46] Speaker 05: And as the Supreme Court held in the Chrysler Court v. Brown case, and as this Court has observed over time, there's only a mandate that agencies, with old information under FOIA, when there is a separate statute that requires that, and with respect to Exemption 4, it's the Trade Secrets Act, which does include the exemption for, or does permit disclosures when authorized by law. [00:03:17] Speaker 05: We are not aware of any case where the district court applied the kind of analysis that was applied in this case, applying 5 U.S.C. [00:03:25] Speaker 05: 559 and this court's Church of Scientology of California precedent to hold that another public disclosure statute [00:03:34] Speaker 05: is in conflict with and must be limited by 5 U.S.C. [00:03:41] Speaker 05: 559. [00:03:43] Speaker 05: The Church of Scientology case, however, presents an entirely opposite situation as in this case. [00:03:48] Speaker 03: What year was 308 enacted? [00:03:51] Speaker 05: It was enacted with the Clean Water Act Amendments of 1972, Your Honor. [00:03:55] Speaker 03: And what year was the freedom of information? [00:03:58] Speaker 05: FOIA was adapted, there were a couple different iterations in the late 1960s, 1966, 1967, I believe. [00:04:09] Speaker 03: This case involves... In FIFRA, are you familiar with the FIFRA statute? [00:04:15] Speaker 03: Yes, Your Honor. [00:04:17] Speaker 03: The language in FIFRA is exactly the same as the language in Exemption 4 of the treatment of information. [00:04:26] Speaker 03: It's not just trade secrets, it's anti-confidential business information. [00:04:36] Speaker 05: I believe that's correct, Your Honor. [00:04:40] Speaker 04: What does it matter that FOIA is discretionary? [00:04:43] Speaker 04: You've emphasized that a couple times so far. [00:04:45] Speaker 05: It matters, Your Honor, because in evaluating whether the provisions of the statutes can be read consistently, FOIA has a strong presumption in favor of disclosure. [00:04:56] Speaker 05: Paragraph B of 5 U.S.C. [00:04:58] Speaker 05: 552 only speaks of exemptions in terms of what an agency may withhold. [00:05:03] Speaker 05: And as the Percipient Court pointed out in Chrysler Court v. Brown, FOIA only provides courts with authority to enjoin withholdings of statutes. [00:05:12] Speaker 05: It does not provide authority to require withholding of statutes. [00:05:21] Speaker 05: When looking at the overall interplay of the statutes here, and EPA's own regulations recognize this, 40 CFR 2.208D states that the agency shall not withhold a document as confidential if another statute requires its disclosure. [00:05:42] Speaker 05: And so in looking at the overall landscape here, one has to look not only at FOIA, but also to the Trade Secrets Act and also to, [00:05:50] Speaker 05: and also to the Clean Water Act, Section 308B, and there is no way to read all of those three statutory provisions together and give their language full effect without recognizing the specific... The Great Secrets Act is a criminal statute? [00:06:03] Speaker 05: It is, Your Honor. [00:06:06] Speaker 05: There's a specific language within 308B that says that all information obtained by EPA under that section for the purpose of, in this case, a rulemaking under the Clean Water Act shall be available to the public. [00:06:21] Speaker 05: unless its disclosure would divulge methods or processes entitled to protection as trade secrets. [00:06:27] Speaker 05: This is why we've described this case as a Chevron step one case, Your Honor, is because there is no way to read the statute to make it consistent with FOIA exemption four, which specifically says that agencies may withhold trade secret and confidential information. [00:06:46] Speaker 05: There's no way to read those two [00:06:49] Speaker 05: to protect the same universe of confidential information without effectively reading that methods or processes language out of the statute. [00:06:58] Speaker 04: So I think I'd agree with you, but for 559, so that's what's holding me up. [00:07:04] Speaker 04: Because 559, by its terms, envisions some conflict. [00:07:11] Speaker 04: And it says in cases of conflict, [00:07:17] Speaker 04: read the conflict in favor of FOIA unless the subsequent statute expressly repeals it. [00:07:24] Speaker 04: So how can I get around that here? [00:07:30] Speaker 05: In our position, Your Honor, is there is no need to find a conflict because when one looks at FOIA, which doesn't mandate withholding under Exemption 4, it just creates [00:07:40] Speaker 05: discretion in the agency to withhold. [00:07:43] Speaker 04: But it's discretion in the agency, not discretion with the courts. [00:07:47] Speaker 04: If the agency chooses to withhold, then we are not at liberty to tell them they have to disclose just because it's a discretionary statute. [00:07:55] Speaker 05: That's true. [00:07:56] Speaker 05: But when considered alongside Section 308B, which has the language, shall be available to the public. [00:08:01] Speaker 05: And considering that Exemption 4 is only mandatory to the extent that the Trade Secrets Act requires that, [00:08:10] Speaker 05: information be withheld, and the Trade Secrets Act specifically carves out disclosures that are authorized by law. [00:08:17] Speaker 05: Those three statutes acting together, the only way to read them consistently would be to find that additional information is required to be disclosed under the Clean Water Act, then an agency would have the discretion to withhold under Exemption 4. [00:08:40] Speaker 05: EPA has offered its own opinion, of course, on the meeting. [00:08:43] Speaker 03: But you would say, would you not, that if there's a statute that prohibits disclosure, and FOIA requires disclosure, that FOIA prevails? [00:09:01] Speaker 05: That's correct, Your Honor. [00:09:02] Speaker 05: We would say that if FOIA requires disclosure, unless it's within the scope of one of FOIA's nine narrowly construed exemptions, that's actually what the Church of Scientology case was about, was there was a case where the IRS was seeking to withhold information on the grounds that a separate provision of the U.S. [00:09:23] Speaker 05: tax code authorized [00:09:26] Speaker 05: an agency to withhold information when the IRS found that it would seriously impair tax administration. [00:09:33] Speaker 05: And in that case, this court properly held that because FOIA expressly prohibits agencies withholding of information, except when it's done through the FOIA process and consistent with FOIA's narrow exemptions, that [00:09:51] Speaker 05: In other circumstances, FOIA must control unless there's an explicit comprehensive displacement of FOIA in those circumstances. [00:10:01] Speaker 05: But here, it's the opposite presumption because FOIA has such a strong presumption in favor of disclosure. [00:10:11] Speaker 05: If there are no further questions, I would like to reserve the balance of my time for a bottle. [00:10:14] Speaker 04: Okay, thank you. [00:10:31] Speaker 04: Good afternoon. [00:10:31] Speaker 01: Good afternoon. [00:10:32] Speaker 01: May it please the court. [00:10:34] Speaker 01: In this case, EPA properly withheld, under Exemption 4 of the FOIA, confidential business information received from businesses in response to a survey that EPA conducted in connection with revising its steam electric power effluent guidelines. [00:10:50] Speaker 01: EPA concluded that release of this information would likely cause substantial competitive harm to the submitters and would impair EPA's ability to obtain similar information from companies in the future. [00:11:02] Speaker 01: And such a result in turn would hamper EPA's ability to protect human health and the environment. [00:11:09] Speaker 01: The parties appear to agree that the Exemption Four of the Freedom of Information Act and the Clean Water Act should be read in harmony, but the dispute lies in what that harmony should be. [00:11:22] Speaker 01: how those two statutes should be interpreted. [00:11:25] Speaker 01: And of course, the appellants have pivoted somewhat their argument from the district court, in which they very clearly argued that Exemption 4 of the FOIA, that the Clean Water Act, I apologize, superseded Exemption 4 of the FOIA. [00:11:39] Speaker 01: They've sort of recast their argument here on appeal to say, no, no, the two statutes should be read in harmony, and the confidential business information must be released under both statutes. [00:11:51] Speaker 01: However, as this court knows, when looking at a statute to try and determine how to interpret it, you go to the familiar principles of Chevron to look at the statute. [00:12:01] Speaker 01: And under the first step on Chevron, you look to see whether or not the statute is unambiguous on its face. [00:12:09] Speaker 01: Here the statute states that, and by statute I'm referring to the Clean Water Act, states that information should be available to the public unless it divulges methods or processes entitled to protection as trade secrets, and if the information is therefore considered confidential according to the purposes of the Trade Secrets Act. [00:12:30] Speaker 01: There is nothing that is plain or unambiguous about that language. [00:12:35] Speaker 01: For example, the term trade secrets this court found in the public citizen health research group case was certainly not unambiguous. [00:12:44] Speaker 01: The court had to define the term there. [00:12:46] Speaker 01: And in that case, this court noted that the term trade secrets has often been given a widely used interpretation found under the restatement of tort 707, where trade secrets has been interpreted to include [00:13:01] Speaker 01: all confidential business information. [00:13:05] Speaker 03: And this court said in the... Information that gives a competitive advantage to the holder. [00:13:12] Speaker 01: That's correct. [00:13:13] Speaker 03: And that's kind of a state, every state I think is adopted to restate the tort's definition, at least according to Ruckelshaus versus Monsignor. [00:13:25] Speaker 01: That's correct, Your Honor, but that definition is definitely broader than the definition of trade secrets that this court found applied to the Freedom of Information Act in the Public Citizen Health Research Group case. [00:13:37] Speaker 01: Because the court noted that the definition in the restatement of torts was broader, but said that because Exemption 4 of the FOIA [00:13:45] Speaker 01: had separate language dealing with confidentiality that, for purposes of the FOIA, the term trade secrets had to be more narrow. [00:13:57] Speaker 01: And this court emphasized twice in that case that its decision was limited to Exemption 4, that it was not purporting to define trade secrets with respect to any other statutes, but only Exemption 4, and only because Exemption 4 [00:14:13] Speaker 01: had this separate language that deals with confidential business information. [00:14:18] Speaker 01: So how to reconcile these two statutes, the Clean Water Act and Exemption Four of the FOIA, but not just Exemption Four, but actually all of the exemptions in the Freedom of Information Act. [00:14:31] Speaker 01: Because you will notice one thing that the appellants never address is that if you adopt their interpretation of the Clean Water Act, Section 308B, that all information, unless it constitutes a narrow definition of trade secret, has to be disclosed. [00:14:48] Speaker 01: That means information subject to the Privacy Act that would be withheld under Exemption 6 and 7C of the FOIA. [00:14:54] Speaker 01: That goes. [00:14:55] Speaker 01: That means information that's subject to Exemption 7A, when EPA is doing an enforcement action, and it gathers information under 308. [00:15:05] Speaker 01: Under appellant's interpretation of 308B, Exemption 7A goes. [00:15:11] Speaker 01: If EPA gathers information from a confidential source in the course of one of its investigations, where it has gathered information under Section 308 from business submitters under appellant's interpretation of Section 308B, that information goes. [00:15:28] Speaker 01: You can't assert Exemption 7D, 7C, 6, 7A, any of the other exemptions of the FOIA. [00:15:36] Speaker 01: under appellant's interpretation of the Clean Water Act, Section 308B. [00:15:41] Speaker 01: None of those exemptions can be asserted. [00:15:44] Speaker 01: The other illogical part of appellant's argument is that information that is gathered by EPA or gathered by another agency, that is clearly confidential business information. [00:15:57] Speaker 01: No dispute about it. [00:15:59] Speaker 03: As soon as it's- So what effect does, under your theory, what effect does 308 have? [00:16:05] Speaker ?: None. [00:16:06] Speaker 01: 308B is the EPA has interpreted it to be consistent with Exemption 4. [00:16:14] Speaker 03: So that under 308B... But suppose you write 308B off the map. [00:16:20] Speaker 03: Right. [00:16:21] Speaker 03: The situation then is exactly the same as you proposed. [00:16:26] Speaker 03: And 308B really has no effect whatsoever. [00:16:30] Speaker 01: It doesn't because it's interpreted the way Exemption 4 is, and that is that confidential business information is withheld under Exemption 4 of the FOIA. [00:16:39] Speaker 01: It is also withheld under Exemption 308B under EPA's long-standing interpretation that dates back to 1975 and its proposed rulemaking, 1976. [00:16:50] Speaker 01: when it was establishing its rule for how it was going to designate information as confidential business information. [00:16:58] Speaker 01: And it looked at the Clean Water Act and the Clean Air Act and it considered it in connection with the Freedom of Information Act and said, [00:17:05] Speaker 01: It only makes sense to read these two consistently. [00:17:09] Speaker 01: Because again, if you have confidential business information that is gathered outside of 308, and it would be withheld under Exemption 4, under appellants interpretation, that very same information, if it was gathered by EPA under Section 308B, would suddenly no longer be entitled to protection. [00:17:29] Speaker 01: That doesn't make any sense. [00:17:30] Speaker 04: I'm not sure I understand the answer to Judge Randolph's question. [00:17:33] Speaker 04: Would you have needed 308B to give an exemption for? [00:17:40] Speaker 04: What does 308B do? [00:17:41] Speaker 01: Well, in our view, it doesn't do anything because this was a FOIA request and we applied the FOIA. [00:17:46] Speaker 04: Does it ever do anything? [00:17:49] Speaker 01: Does it ever release more? [00:17:51] Speaker 01: I would say the one thing it does is that Congress clearly carved out effluent data in 308B and said that has to be released. [00:17:59] Speaker 01: So that is a congressional determination that effluent data cannot be considered confidential business information. [00:18:06] Speaker 01: I would say that's the only difference between Section 308B and Exemption 4 of the FOIA is that congressional determination on a very specific type of information. [00:18:17] Speaker 04: When 559 says that subsequent statutes may not be held to supersede except to the extent that it does so expressly, by expressly does it have to refer to FOIA itself or the FOIA provision itself to constitute expressly? [00:18:34] Speaker 01: It does not. [00:18:36] Speaker 01: This court, I believe, has held that. [00:18:39] Speaker 01: You also can look to see whether or not there are procedures that have been put in place that indicate that there was an intent to supersede the FOIA. [00:18:47] Speaker 01: I think you have to look at the statutory language, each particular statute. [00:18:51] Speaker 01: in the context. [00:18:53] Speaker 01: But here, because Congress, with respect to affluent data, which of course is not an issue in this case, but with respect to affluent data, Congress identified that as information, so companies can't consider that to be confidential business information. [00:19:08] Speaker 01: So it's not a matter of there being a conflict or carving something out. [00:19:13] Speaker 01: That just can't be considered confidential business information. [00:19:17] Speaker 01: So it couldn't be withheld under Exemption 4 of the FOIA as well. [00:19:22] Speaker 01: So that's the way you read those two statutes in harmony. [00:19:28] Speaker 01: again, because the statute, because the Clean Water Act. [00:19:30] Speaker 04: I don't know if there's harmony, though. [00:19:32] Speaker 04: It just seems to me, and I understand why you don't want to go where I'm about to go, but it seems to me that the FOIA says what it says in terms of exemption 4 and says subsequent statutes cannot supersede unless expressly. [00:19:49] Speaker 04: And this statute otherwise would require disclosure, but it doesn't supersede expressly. [00:19:54] Speaker 04: So you're saying it has [00:19:57] Speaker 04: no impact. [00:19:59] Speaker 01: Well, it requires disclosure except, for example, confidential business information. [00:20:04] Speaker 04: Right, but that's everything that's Exemption 4. [00:20:06] Speaker 04: That's correct. [00:20:07] Speaker 04: So the statute, in essence, becomes a meaningless statute as to a large category of information because Exemption 4 is already on the books. [00:20:20] Speaker 01: Well, I don't think it becomes meaningless, the fact that you simply can read it in harmony. [00:20:24] Speaker 01: I mean, it's a separate statute dealing with, and it's got a separate section dealing with disclosure of information. [00:20:30] Speaker 01: So the fact that it says there's one category of information that has to be disclosed, effluent data, [00:20:36] Speaker 01: And then simply the rest of the statute harmonizes with Exemption 4. [00:20:41] Speaker 01: It doesn't render it superfluous. [00:20:42] Speaker 01: It just renders it a statute that has a disclosure provision that is in harmony with FOIA. [00:20:48] Speaker 04: Normally when you talk about harmony, you'll have two statutes, and you'll say instead of them covering the field, you meet in the middle somewhere. [00:20:55] Speaker 04: But I don't see how you're meeting in the middle here really with 308B. [00:21:01] Speaker ?: Well. [00:21:01] Speaker 01: I mean, perhaps it's the use of the word harmony that this court disagrees with. [00:21:08] Speaker 01: I think the point, however, is there's no conflict between the two. [00:21:12] Speaker 04: If we think there is a conflict between the two, what happens? [00:21:16] Speaker 01: Well, as this court said, if there's a conflict between the two, then 559 of the APA comes into play. [00:21:21] Speaker 01: And the Clean Water Act cannot supersede the Freedom of Information Act. [00:21:26] Speaker 01: So because this was a FOIA request, it was a request for information made under the FOIA. [00:21:31] Speaker 01: In fact, in the district court, appellants conceded that exemption four apply, as the district court noted in its opinion. [00:21:38] Speaker 01: They conceded this was confidential business information. [00:21:40] Speaker 01: They simply argued that it has to be released under the Clean Water Act. [00:21:44] Speaker 01: And that's why the district court issued the decision it did, which said that no, [00:21:49] Speaker 01: Under Section 559 of the Administrative Procedure Act, you cannot have the Clean Water Act supersede Exemption 4 of the FOIA. [00:21:58] Speaker 01: So again, if you go back to Chevron and you go to Step 2 of Chevron, because there's no question it is not plain and unambiguous on its face. [00:22:09] Speaker 01: It cleans Section 308B of the Clean Water Act. [00:22:12] Speaker 01: then the question is whether or not EPA's reasonable interpretation of the statute is entitled to deference. [00:22:18] Speaker 01: I mean, EPA is the agency this court has recognized is tasked with interpreting and administering a rather complicated statute, the Clean Water Act. [00:22:28] Speaker 01: And EPA's interpretation is reasonable because, as it stated in its preamble to the proposed rule dealing with making confidentiality determinations, [00:22:39] Speaker 01: EPA needs information from businesses in order to carry out its statutory duties under the Clean Water Act. [00:22:46] Speaker 01: It needs businesses to give information that businesses consider to be confidential. [00:22:52] Speaker 01: But the EPA needs, in order to make its determinations regarding the appropriate effluent guidelines, for example, regarding permits that are given to companies in terms of the amount of effluence that they can discharge, EPA needs that information. [00:23:06] Speaker 01: And in this survey, where they were seeking information from companies, they were able to get more information than the companies were required to give in some instances, which shed light on the information that they got, which helped [00:23:20] Speaker 01: them in their rulemaking process. [00:23:23] Speaker 03: We don't owe any deference to EPA's interpretation of the Freedom of Information Act, correct? [00:23:29] Speaker 01: That's correct, the Freedom of Information Act, Your Honor. [00:23:31] Speaker 03: And to the extent that this is not simply an interpretation of the Clean Water Act, but also an interpretation of FOIA and the interplay between the two, do we have deference then? [00:23:43] Speaker 03: Because this is in part an interpretation of FOIA. [00:23:47] Speaker 01: I actually disagree, Your Honor. [00:23:50] Speaker 01: I think this is an interpretation of the Clean Water Act, because under FOIA and Exemption 4, appellants have conceded that this information that's been withheld is confidential business information, and it can be withheld under Exemption 4. [00:24:01] Speaker 01: So there's no interpretation of Exemption 4, I think, that's at issue here. [00:24:05] Speaker 03: As applied to Section 308. [00:24:09] Speaker 01: So that's where the interpretation comes in, is does Section 308B somehow give appellants greater rights to access to information than Exemption 4? [00:24:19] Speaker 01: So it's really an interpretation of Section 308B that if for anything to be interpreted is at issue here. [00:24:27] Speaker 01: And EPA's reasonable interpretation that the purposes of Section 308 are to be served [00:24:34] Speaker 01: by having an interpretation of that trade secrets language to be consistent with the exemption for is a reasonable interpretation that's entitled to deference by this court. [00:24:45] Speaker 01: Again, because of the logic of appellant's argument that other FOIA exemptions wouldn't apply, that the information, if it's confidential in one context, in the very same context, would not be considered confidential under their interpretation. [00:24:59] Speaker 03: Well, there's an interpretation embedded. [00:25:00] Speaker 03: I don't know. [00:25:03] Speaker 03: of FOIA embedded in your argument and the interpretation is something along the following lines that although it's a disclosure statute, FOIA with its exemptions protects from disclosure anything that is exempted even though another statute 308B requires its disclosure. [00:25:25] Speaker 03: That's an interpretation of FOIA, isn't it? [00:25:28] Speaker 01: Well, no, because EPA has not concluded that 308B requires disclosure. [00:25:35] Speaker 01: EPA's interpretation of 308B is that it covers confidential business information just like Exemption 4 does. [00:25:43] Speaker 03: So the EPA is not interpreting that one... Is that an interpretation of the phrase trade secret? [00:25:48] Speaker 01: It's an interpretation of the word trade secrets in 308B. [00:25:53] Speaker 01: And that's where EPA has interpreted that language more broadly than this court interpreted trade secrets under the FOIA. [00:26:01] Speaker 01: And EPA did that in order to assure that it would be able to have access to the information that it needs in order to carry out its statutory duties under the Clean Water Act. [00:26:13] Speaker 02: Council, the 308B doesn't just refer to trade secrets. [00:26:17] Speaker 02: It refers to the Trade Secrets Act. [00:26:20] Speaker 01: It does. [00:26:21] Speaker 02: And doesn't 308B have the effect of, by invoking the Trade Secrets Act, which would prohibit the disclosure, [00:26:40] Speaker 02: create, let's put it that way, TSA has an exception, Trade Secrets Act has an exception for disclosures authorized by law. [00:26:49] Speaker 02: And that has the effect, does it not, of making disclosure under FOIA discretionary rather than mandatory. [00:26:59] Speaker 01: No, the disclosure under Exemption 4 is not discretionary. [00:27:02] Speaker 01: You cannot release under Exemption 4 information that's protected by the Trade Secrets Act. [00:27:08] Speaker 01: This Court has held that those statutes are co-extensive, and the government is actually precluded from releasing information under Exemption 4 that's protected by the Trade Secrets Act. [00:27:20] Speaker 02: And what case you have in mind? [00:27:22] Speaker 02: That makes sense, but I'm not sure of the case. [00:27:25] Speaker 01: Your Honor, I believe that that is mentioned in critical mass in the National Parks case. [00:27:32] Speaker 01: That's good. [00:27:32] Speaker 01: This court's seminal case is dealing with exemption four and how confidential business information should be treated. [00:27:39] Speaker 01: I believe I have gone over my time. [00:27:42] Speaker 01: If the court has no further questions, we urge the court to affirm the district court in this case. [00:27:48] Speaker 04: Thank you. [00:27:48] Speaker 01: Thank you very much. [00:27:50] Speaker 05: Give you a few minutes for a bottle. [00:27:55] Speaker 05: Thank you, your honor. [00:27:58] Speaker 05: Your Honor, in response to Judge Ginsburg's question just now, EPA's counsel did misstate the law. [00:28:04] Speaker 05: If you look at the cases cited on page 7 of our reply brief, the Quest Communications case from the D.C. [00:28:11] Speaker 05: Circuit from 2000, and in particular in the McDonnell-Douglas Court of the U.S. [00:28:16] Speaker 04: Department of... What legal principle are you articulating there? [00:28:21] Speaker 05: Under Exemption 4, in McDonald Douglas' case says this explicitly, withholding of confidential information is only mandatory to the extent that it's required by the Trade Secrets Act. [00:28:33] Speaker 05: and I didn't take anything different to have been said okay and that I read I heard counsel for EPA saying that withholding under FOIA exemption for it as such was was mandatory and that's not the law [00:28:53] Speaker 05: Right, only if it's covered also by the Trade Secret Act. [00:28:57] Speaker 05: That's correct, Your Honor. [00:28:59] Speaker 05: Okay. [00:29:00] Speaker 05: So, Your Honor, just quickly a few things. [00:29:04] Speaker 04: What about the thing, sorry to interrupt, but the point that all these other exemptions would be swept away under your interpretation? [00:29:12] Speaker 05: That is not our position. [00:29:12] Speaker 05: your honor, there's no reason to think that this case would have any impact on the other exemptions. [00:29:17] Speaker 05: The reason why exemption four in the confidential business information issue in this case is different is because of the Trade Secrets Act and because of the provision within the Trade Secrets Act that disclosures are permitted when authorized by law. [00:29:30] Speaker 05: There's no equivalent provision in the Privacy Act, for example, as would apply to exemption six. [00:29:35] Speaker 05: There's no equivalent provision with respect to exemption seven. [00:29:40] Speaker 05: protected privacy information would still need to be upheld under this analysis. [00:29:47] Speaker 04: So if the information has to be disclosed under 308B in isolation and the agency says we don't want to disclose it under 308B because it falls within one of the FOIA exemptions, exemption five, exemption seven, what have you, [00:30:02] Speaker 04: What is your position? [00:30:04] Speaker 05: Our position would be that at that point, if there is protected privacy information at issue, it would be appropriate for the agency to withhold that information. [00:30:12] Speaker 05: This was one of the cases cited by the district court below is the Cameron C case from the Ninth Circuit from 2016, which made a similar finding with respect to the separate statute requiring disclosure of some of the names of. [00:30:27] Speaker 05: I'm not understanding the theory by which [00:30:29] Speaker 04: We could do that in the next case, though, if we ruled for you in this case. [00:30:34] Speaker 05: If EPA were to receive a FOIA request that sought both information subject to Section 308B with respect to being withheld with respect to confidentiality and included within it some information that would, for example, be protected under Exemption 6, EPA would be authorized under the Exemption 6 and the Privacy Act to withhold that information. [00:30:58] Speaker 05: the exemption 6 information while disclosing any information that's required to be disclosed under section 308 B. And the difference then with exemption 4 from exemption 6 is. [00:31:11] Speaker 05: that exemption four is made mandatory only to the extent that the Trade Secrets Act requires that information be withheld, and the Trade Secrets Act includes the provision permitting disclosure when authorized by law. [00:31:23] Speaker 05: And so that incorporates separate disclosure statutes, such as the section 308B of the Clean Water Act provision that's at issue in this case. [00:31:31] Speaker 04: Okay, but the other exemptions are not mandatory withholding. [00:31:36] Speaker 05: That's correct, Your Honor, and so to the extent that there are statutory obligations such as the Privacy Act that mandates that private information be withheld, those statutes would still operate and those statutes don't have... Those statutes, but what about an exemption 7C kind of situation or 7 situation? [00:31:52] Speaker 04: I don't have a specific hypothetical in mind, but other exemptions that don't correspond to mandatory withholding but are discretionary withholding exemptions [00:32:02] Speaker 05: that there are privileges applicable to the withholding, then those privileges would have to be observed under FOIA. [00:32:10] Speaker 05: But to the extent that it's not a mandatory exemption, then yes, it would be subject to disclosure. [00:32:17] Speaker 04: But here, what we're talking about- Yeah, that's what I thought. [00:32:20] Speaker 04: So in other words, [00:32:21] Speaker 04: And I understand why you're resistant to get here. [00:32:23] Speaker 04: But if another statute prohibits disclosure, that's one thing. [00:32:28] Speaker 04: But if it's just an exemption, which by definition are usually discretionary, those will be overridden by your interpretation of 308B. [00:32:36] Speaker 04: And that's fine. [00:32:37] Speaker 04: We just have to be aware of that if we're going to rule for you here rather than be [00:32:40] Speaker 05: I'm surprised. [00:32:41] Speaker 05: Well, it's important to note, Your Honor, that Section 308 is a relatively limited scope of universal information. [00:32:47] Speaker 05: It's information that was obtained for the purpose of a technical rulemaking, such as this one. [00:32:51] Speaker 05: We're talking about information about the cost and performance of wastewater treatment systems. [00:32:56] Speaker 05: This is not a sweeping disclosure obligation in the statute, and certainly [00:33:01] Speaker 05: Businesses would still be free to voluntarily provide EPA with other information that's not within the narrow scope of Section 308, and that information would still be protected under Exemption 4. [00:33:10] Speaker 05: Right. [00:33:11] Speaker 04: The hypothetical, to be fair to you, the hypothetical that I was asking you is probably unlikely to arise very often, I would imagine, but in any event. [00:33:20] Speaker 04: What about the idea that trade secrets in the Clean Water Act is an ambiguous term? [00:33:28] Speaker 05: The language, all of EPA's arguments here would have the court focus solely on the word trade secrets, but that's not the language that's used within Section 308B. [00:33:37] Speaker 05: Section 308B uses the phrase methods or processes entitled to protection as trade secrets. [00:33:44] Speaker 05: And EPA's interpretation simply reads the phrase methods or processes out of the statute. [00:33:50] Speaker 05: By using the phrase methods or processes, Congress here clearly intended there to be a direct link between the commercially valuable method or process and the requirement that EPA not make that available to the public. [00:34:07] Speaker 05: It's a very different situation from the much broader universe that's protected by FOA Exemption 4. [00:34:13] Speaker 03: Your request to EPA was [00:34:18] Speaker 03: a request under FOIA, wasn't it? [00:34:20] Speaker 05: That's correct, Your Honor. [00:34:22] Speaker 03: And you would agree that FOIA doesn't apply, right? [00:34:26] Speaker 05: No, Your Honor, we don't agree that FOIA doesn't apply. [00:34:29] Speaker 05: FOIA is what gives us, as members of the public, the opportunity to request records from government agencies. [00:34:37] Speaker 03: It gives us the cause of action to... But I'm listening to your argument. [00:34:40] Speaker 03: I thought your argument is that 308 [00:34:42] Speaker 03: of the Clean Water Act is what requires disclosure, not FOIA. [00:34:48] Speaker 05: So our argument, Your Honor, is that because there is a separate statute that requires disclosure, EPA may not withhold that information [00:34:58] Speaker 05: confidential. [00:34:59] Speaker 05: And that's EPA's own regulations say that the 40 CFR 2.208Ds as one of the factors that EPA has to evaluate in determining whether documents are confidential and may be withheld is whether another statute requires their disclosure. [00:35:14] Speaker 03: Did you even invoke 308B in your request for information? [00:35:19] Speaker 05: Not initially, Your Honor. [00:35:21] Speaker 05: We just made a FOIA request. [00:35:22] Speaker 05: It was just a letter that asked for certain categories of technical information relating to the rulemaking. [00:35:29] Speaker 05: We did, after EPA gave us a partial response to the FOIA request, but then stated in their partial response they were withholding other information. [00:35:38] Speaker 05: We did include the argument about Section 308B compelling EPA to disclose the information in an administrative appeal letter. [00:35:46] Speaker 05: We submitted to EPA, so we did include it in the administrative proceedings before the agency, and EPA did not respond to that argument in administrative proceedings below. [00:35:55] Speaker 05: It was only once we got to the district court that EPA offered a response to that. [00:35:59] Speaker 04: Okay. [00:35:59] Speaker 04: Thank you very much. [00:36:00] Speaker 04: The case is submitted. [00:36:02] Speaker 04: Thank you, Your Honor.