United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2001 Decided March 30, 2001
No. 00-5128
Center for Auto Safety,
Appellant
v.
National Highway Traffic Safety Administration, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01759)
Allison M. Zieve argued the cause for appellant. With her
on the briefs was Michael Tankersley.
Lisa S. Goldfluss, Assistant United States Attorney, ar-
gued the cause for appellee National Highway Traffic Safety
Administration. With her on the brief were Wilma A. Lewis,
United States Attorney, R. Craig Lawrence, Assistant United
States Attorney, Lloyd S. Guerci, Assistant Chief Counsel for
Litigation, National Highway Traffic Safety Administration,
and Enid Rubenstein, Attorney.
Erika Z. Jones argued the cause for appellees Volvo Cars
of North America, Inc., et al. With her on the brief were
Adam C. Sloane, Karen L. Manos, Paul Jackson Rice,
Christopher H. Grigorian, Scott T. Kragie, and Andrew W.
Cohen.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: In December 1997, the National
Highway Traffic Safety Administration ("NHTSA") issued an
Information Request to nine airbag manufacturers and im-
porters seeking information on airbag systems used in years
1990-98. Subsequently, the Center for Auto Safety ("Cen-
ter") sought access to the information pursuant to the Free-
dom of Information Act ("FOIA"), 5 U.S.C. s 552 (1994).
NHTSA released some of the information to the Center, but
asserted that the remaining submissions were protected from
disclosure under Exemption 4 of FOIA, 5 U.S.C. s 552(b)(4)
(1994), which excludes from disclosure "trade secrets and
commercial or financial information obtained from a person
and privileged or confidential."
The Center filed suit in District Court, asserting that the
disputed documents were subject to disclosure under FOIA,
because the submissions to the Government had been manda-
tory and disclosure of the information would not cause impair-
ment to the Government or substantial competitive harm to
the respondents. The Center also submitted evidence pur-
porting to demonstrate that the intervenor-defendants had
customarily disclosed information of the same type at issue
here.
On summary judgment, the District Court found that,
because NHTSA's Information Request violated the Paper-
work Reduction Act, 44 U.S.C. s 3501 (1994), NHTSA had no
authority to enforce the request, and as a result the submis-
sions should be considered voluntary. Center for Auto Safety
v. Nat'l Highway Traffic Safety Admin., No. 99-1759, Mem.
Op. at 35-36 (D.D.C. Feb. 28, 2000) ("Mem. Op."). The
District Court found that some of the disputed documents
qualified as trade secrets, and therefore were protected as
such from disclosure. Analyzing the remaining information
as voluntary submissions, the District Court evaluated the
submissions under the standards laid out in Critical Mass
Energy Project v. Nuclear Regulatory Commission, 975 F.2d
871 (D.C. Cir. 1992), and Niagara Mohawk Power Corp. v.
United States Department of Energy, 169 F.3d 16 (D.C. Cir.
1999). Pursuant to Critical Mass, the District Court consid-
ered whether, in the past, the manufacturers and importers
had customarily disclosed the same type of information at
issue here, and determined that they had not.
We agree with the District Court that, because NHTSA
violated the Paperwork Reduction Act, the agency's Informa-
tion Request was not enforceable. Accordingly, because
NHTSA lacked legal authority to enforce its request for
information, the submissions cannot be considered mandatory
even if the parties reasonably believed the Information Re-
quests were mandatory at the time of submission. When an
agency obtains information from private entities by asserting
legal authority which it cannot enforce, private-party submis-
sions are entitled to the same protection from disclosure as
voluntary submissions.
Although the District Court appropriately analyzed disclo-
sure under the voluntary, rather than mandatory standard,
we find that the District Court misstated the appropriate
legal standard. In addressing customary disclosure, the trial
court appeared to indicate that the Center was required to
prove that intervenor-defendants have previously released
identical information. This is not a correct statement of the
law. As a result, questions remain as to whether certain of
the disputed information must be released because it has
been customarily disclosed in the past. Accordingly, we
remand the case to the District Court for further proceedings
consistent with the opinion.
I. Background
This controversy dates back to December 17, 1997, when
NHTSA issued an Information Request to nine airbag manu-
facturers and importers: DaimlerChrysler Corporation, Ford
Motor Company, General Motors Corporation, American
Honda Motor Company, Mercedes-Benz USA, Nissan North
America, Toyota Technical Center USA, Volkswagen of
America, and Volvo Cars of North America. The companies
were directed to respond by February 17, 1998, and NHTSA
subsequently posted some of the information on the agency's
website. Mem. Op. at 2. On January 19, 1999, the Center
submitted a FOIA request for all material the agency had
received but not yet made public. On February 16, 1999,
NHTSA responded that Exemption 4 of FOIA barred disclo-
sure of the disputed information. On March 10, 1999, the
Center appealed NHTSA's decision. Id. at 3. On June 18,
1999, NHTSA granted the appeal in part, and then released
some, but not all, of the disputed information. The Center
filed the underlying FOIA suit on June 29, 1999. Subsequent
to the filing, NHTSA released additional information. There
are now 33 items of information remaining in dispute. Id.
The items fall into six general categories, including airbag
deployment, airbag cover, airbag system components, seat-
belts, crash sensors, and system performance.
The District Court determined that NHTSA did not have to
disclose any of the 33 items of information. The District
Court found that 10 of the information items were protected
from disclosure as trade secrets, including information re-
garding the tear pattern of the airbag, the fold pattern of the
airbag, the number and location of the tethers, the type of
inflator and gas generant, the number of inflation stages, the
various tank tests used to measure inflator characteristics,
and the engineering specifications provided to suppliers for
development of algorithms. Id. at 29-32. The District Court
explained that the remaining 23 information items were ex-
empt from disclosure because the information was voluntarily
submitted and constituted confidential commercial informa-
tion that was not customarily disclosed. The District Court
concluded that the information at issue had been disclosed in
the past only when necessary, and always with a confidentiali-
ty agreement or protective order. Id. at 38.
The Center argued that the information was customarily
disclosed, because most of the information could be ascer-
tained through physical inspection. The District Court re-
jected this claim; the time, expense and risk of gathering the
relevant information are substantial, and simply selling a
vehicle to the public does not constitute revealing the detailed
physical characteristics of airbags. Id. at 32.
The Center also argued that the manufacturers had previ-
ously disclosed the same type of information, and submitted
extensive, detailed evidence to the District Court of prior
instances of disclosure. The District Court rejected this
claim as well, and concluded that, in each instance highlighted
by the Center, the evidence indicated only discrete disclo-
sures to entities requiring the information, not customary
disclosure. Furthermore, the information disclosed was gen-
eral and merely approximated the information submitted to
NHTSA. Id. at 39. In addition, the District Court held that
the Center failed to show that the previously disclosed infor-
mation was the same type of information that the Center now
seeks. On this latter point, the District Court noted that the
Center "must" demonstrate that the information is "identi-
cal." Id. Based on this analysis, the District Court granted
NHTSA's and intervenor-defendants' motion for summary
judgment. We review the District Court's grant of summary
judgment de novo. Rockwell Int'l Corp. v. United States
Dep't of Justice, 235 F.3d 598, 602 (D.C. Cir. 2000).
II. Analysis
A. Voluntary or Mandatory Submissions
FOIA expresses a fundamental commitment to full agency
disclosure of government documents. Public access, not se-
crecy, is the main purpose of FOIA. United States Dep't of
Defense v. Fed. Lab. Relations Auth., 510 U.S. 487, 494 (1994)
(quoting Department of Air Force v. Rose, 425 U.S. 352, 361
(1976)). Although FOIA is intended to expose agency action
to public scrutiny, FOIA permits an agency to withhold
information if it falls within any one of nine categories of
exempted material. McCutchen v. United States Dep't of
Health and Human Services, 30 F.3d 183, 184 (D.C. Cir.
1994).
NHTSA asserted that the information requested by the
Center was protected from disclosure under Exemption 4,
which excludes "trade secrets and commercial or financial
information obtained from a person and privileged or confi-
dential." 5 U.S.C. s 552(b)(4). This court has on a number
of occasions addressed the standards governing determina-
tions of whether information qualifies under Exemption 4.
The judgment of the court sitting en banc in Critical Mass is
our most significant statement on the subject.
In Critical Mass, the court held that material may be
withheld as "financial or commercial" information under Ex-
emption 4 of FOIA under two circumstances. First, "finan-
cial or commercial information provided to the Government
on a voluntary basis is 'confidential' for the purpose of
Exemption 4 if it is of a kind that would customarily not be
released to the public by the person from whom it was
obtained." 975 F.2d at 879 (emphasis added). Second, finan-
cial or commercial information provided to the Government
on a mandatory basis is "confidential" if "disclosure would be
likely either '(1) to impair the Government's ability to obtain
necessary information in the future; or (2) to cause substan-
tial harm to the competitive position of the person from whom
the information was obtained.' " Id. at 878. "[W]hen dealing
with a FOIA request for information the provider is required
to supply, the governmental impact inquiry will focus on the
possible effect of disclosure on its quality." Id.
The decision in Critical Mass explains that, with respect
to information voluntarily submitted, the party opposing dis-
closure bears the burden of proving the information is confi-
dential. Id. at 879. In addition, in assessing customary
disclosure, the court will consider how the particular party
customarily treats the information, not how the industry as
a whole treats the information. Id. at 872, 878-80. A
party can voluntarily make protected disclosures of informa-
tion, and as long as the disclosures are not made to the
general public, such disclosures do not constitute customary
disclosures. Id. at 874, 880.
The court further noted that disclosure under FOIA bal-
ances the public's interest in maintaining "an informed citi-
zenry, vital to the functioning of a democratic society," with
the Government's interest in access to data in making "intelli-
gent well informed decisions," and private interests in protec-
tion from the "competitive disadvantages" that would result
from disclosure. Id. at 872-73 (citations omitted). When the
Government obtains information as part of a mandatory
submission, the Government's access to the information nor-
mally is not seriously threatened by disclosure; the private
interest is the principal factor tending against disclosure, and
the harm to the private interest must be significant to pre-
vent public access to information. Id. at 878. However,
when the Government receives information voluntarily, it has
a strong interest in ensuring continued access, and therefore
both the Government and private interests weigh against
overly broad disclosure. Id.
With this framework in mind, we agree with the District
Court that the submissions in this case should not be treated
as mandatory. At the same time, we note that this case does
not involve a typical voluntary information submission--it
involves a mistaken submission. NHTSA's request for infor-
mation appeared mandatory on its face. The Information
Request stated that "NHTSA hereby requires" the recipient
to submit the information and explained that the recipient,
"must respond to the enclosed Information Request." Infor-
mation Request, reprinted in Joint Appendix ("J.A.") 323.
Furthermore, the Information Request explained, "[f]ailure to
respond promptly and fully to this Information Request could
subject [recipient] to civil penalties pursuant to 49 U.S.C.
s 30165 or lead to an action for injunctive relief pursuant to
49 U.S.C. s 30163." Id. The language of the Information
Request clearly communicates to the recipient that submis-
sion of material was mandatory.
Nevertheless, NHTSA's request was not enforceable as a
result of the Paperwork Reduction Act and, therefore, we find
that the submissions cannot be considered mandatory. Un-
der the Paperwork Reduction Act, if NHTSA seeks to collect
information from 10 or more persons or entities, NHTSA
must obtain prior approval from OMB. 44 U.S.C.
s 3502(3)(A)(i) (Supp. IV 1998). If NHTSA fails to obtain
prior approval from OMB, the request for information can be
ignored without penalty. 44 U.S.C. s 3512(a) (Supp. IV
1998). OMB regulations specifically explain that "10 or
more" includes any "independent entities to which the initial
addressee may reasonably be expected to transmit the collec-
tion of information." 5 C.F.R. s 1320.3(c)(4) (2000).
On the record at hand, it is clear that NHTSA expected
that the Information Request would be submitted to 10 or
more entities. For example, the District Court pointed out
that Volkswagen of America, as an importer, had to submit
the Information Request to Volkswagen AG and Audi AG in
order to respond to the questions, and all nine manufacturers
who received the Information Request had to collect informa-
tion from their suppliers. Mem. Op. at 36. This finding was
also supported by the declaration of the executive director of
NHTSA, L. Robert Shelton, who explained that NHTSA
expected the recipients to send the request to their foreign
parents, subsidiaries and affiliates. Declaration of L. Robert
Shelton, reprinted in J.A. 463-65.
Although NHTSA expected that the Information Request
would be submitted to 10 or more entities, NHTSA did not
get prior approval from OMB. As a result, NHTSA had no
authority to enforce the information request. Had the inter-
venor-defendants ignored the agency's request for informa-
tion, NHTSA could not have compelled them to respond to
the request. Because NHTSA could not enforce its Informa-
tion Request, the material submitted in response to the
Information Request cannot be considered mandatory.
In determining that the submission was not mandatory, we
hold that actual legal authority, rather than parties' beliefs or
intentions, governs judicial assessments of the character of
submissions. We reject the argument that, in assessing
submissions for the purpose of Exemption 4 analysis, we
should look to subjective factors, such as whether the respon-
dents believed that the Information Request was voluntary,
or whether the agency, at the time it issued the request for
information, considered the request to be mandatory. Focus-
ing on parties' intentions, for purposes of analyzing submis-
sions under Exemption 4, would cause the court to engage in
spurious inquiries into the mind. On the other hand, linking
enforceability and mandatory submissions creates an objec-
tive test; regardless of what the parties thought or intended,
if an agency has no authority to enforce an information
request, submissions are not mandatory.
In distinguishing between voluntary and mandatory sub-
missions, the court in Critical Mass emphasized that the
Supreme Court has favored "the development of categorical
rules whenever a particular set of facts will lead to a general-
ly predictable application of FOIA." Critical Mass, 975 F.2d
at 879 (discussing United States Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 779 (1989)).
We also noted the Court's suggestion of a "practical ap-
proach" in interpreting FOIA, and defended the voluntary
versus mandatory distinction as an objective test. Critical
Mass, 975 F.2d at 879 (quoting John Doe Agency v. John Doe
Corp., 493 U.S. 146, 157 (1989)). The distinction between
voluntary and mandatory submissions that was delineated in
Critical Mass was rooted in the importance of establishing
clear tests in interpreting FOIA, and we continue in that
tradition today.
We cannot accept the Center's argument that if recipients
do not assert that a submission is voluntary before submit-
ting information in response to an agency's request, they
have implicitly waived their entitlement to subsequently as-
sert that the submission was not mandatory. Critical Mass
emphasizes our concern with an agency's "continuing ability
to secure ... data on a cooperative basis." Critical Mass,
975 F.2d at 879. Although NHTSA in this case purported
to seek data pursuant to its statutory mandate, the response
by the manufacturers was certainly "cooperative" in the
sense that they readily supplied the data without making
legal objections. Indeed, at least two of the manufacturers
acquiesced while maintaining that their responses were vol-
untary. Surely there is an important policy interest in mini-
mizing resistance by a manufacturer to an agency's request
for information; insisting that a respondent identify and air
legal objections in response to any request in order to pre-
serve its rights would tend to frustrate the "cooperati[on]"
that Critical Mass values. Beyond, that it would needlessly
waste resources to require that respondents identify legal
defects that have no practical bearing unless and until a
FOIA dispute materializes.
The Center also argues that intervenor-defendants have
waived their entitlement to assert a claim under the Paper-
work Reduction Act because claims under the Paperwork
Reduction Act cannot be raised once the information is sub-
mitted. Permitting a party to raise a Paperwork Reduction
Act claim after having submitted information to an agency
does not support the purpose of the Paperwork Reduction
Act; after information is submitted, the Paperwork Reduction
Act's goal of reducing paperwork by mandating OMB review
is moot. We disagree.
The Paperwork Reduction Act directly addresses when a
claim can be raised. Although it does not expressly refer to
claims arising after submission of the information, the statute
provides that "[t]he protection provided by this section may
be raised in the form of a complete defense, bar, or otherwise
at any time during the agency administrative process or
judicial action applicable thereto." 44 U.S.C. s 3512(b)
(Supp. IV 1998). In Saco River Cellular, Inc. v. FCC, 133
F.3d 25, 31 (D.C. Cir. 1998), we explained that, by explicitly
allowing parties to raise a Paperwork Reduction Act claim at
any time during ongoing proceedings, the Paperwork Reduc-
tion Act "prevents an agency or court from refusing to
consider a [Paperwork Reduction Act] argument on the
ground that it is untimely."
Saco River is not directly on point, as it involved a Paper-
work Reduction Act defense that was raised when the party
had not submitted the information. However, the expansive
language of the Paperwork Reduction Act itself, along with
this court's explication in Saco River, militates against the
Center's position and supports our finding that a Paperwork
Reduction Act claim can be raised after information has been
submitted. In addition, the Center's argument ignores the
deterrence effect that permitting parties to raise their Paper-
work Reduction Act claim can have on future agency actions.
Although the paperwork may already have been produced in
response to the particular Information Request, permitting
parties to raise their Paperwork Reduction Act claim, even
after submitting the information, further encourages agencies
to comply prospectively with the Paperwork Reduction Act.
B. Customary Disclosure
If this were an ordinary FOIA case involving the invocation
of Exemption 4 with respect to information that had been
voluntarily submitted to the Government, we would consider
whether the information at issue has been customarily dis-
closed. Here, however, we are confronted with information
that was submitted under false pretenses. That is, the
Government claimed that it had the authority to compel the
submission of the information when in fact no such authority
existed. As noted above, applications of Exemption 4 attempt
to balance private interests in protection from disclosure,
governmental interests in access to data, and public interest
in transparent governmental decision-making. In this case,
the agency essentially "flashed its badge" to gain entrance to
a private sphere when it had no legal authority to do so, and
this misrepresentation must tip the balance of interests in
favor of the private parties. Given this unusual situation--
i.e., submissions made under false pretenses--we cannot treat
the submissions as "mandatory." As a result, we apply the
same standard we use in evaluating voluntary submissions.
Thus, treating the information as having been submitted
voluntarily, we turn to the question of whether the informa-
tion is customarily disclosed.
As a preliminary matter, we note that the District Court
found that 10 information items involved protected trade
secrets. We have defined a trade secret as a "secret, com-
mercially valuable plan, formula, process, or device that is
used for the making, preparing, compounding, or processing
of trade commodities and that can be said to be the end
product of either innovation or substantial effort." Pub.
Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288
(D.C. Cir. 1983). On appeal, the Center argues that the
information at issue addressed the physical and performance
characteristics of airbags, not how airbags are manufactured,
and, therefore, the information cannot qualify as trade se-
crets. Intervenor-defendants defend the trade secrets ruling.
NHTSA does not defend the trade secrets ruling and instead
urges the court to find that the submissions were voluntary
and involved commercial information not customarily dis-
closed to the public. We agree with the Center that the
information at issue does not qualify as trade secrets, but also
agree with NHTSA that the information may nonetheless
qualify for protection under Critical Mass. Our Decision in
Public Citizen narrowly cabins trade secrets to information
relating to the "productive process" itself, see id. at 1288; yet
these 10 categories of information relate only to the end
product--what features an airbag has and how it performs--
rather than to the production process, how an airbag is made.
To be sure, the manufacturers persuasively argue that the
information is valuable to competitors and not readily ob-
tained. That, however, goes to whether the information is
customarily disclosed. Therefore, the question to be decided
here is whether the information is independently protected
under Critical Mass. We therefore turn to that issue.
The Center asserts that with respect to 18 of the 33
disputed items of information, at least one of the companies
has customarily disclosed the same type of information in the
past. The Center also claims that, because the information at
issue relates to products that are sold on the public market,
most of the information can be ascertained by examining an
airbag, performing a routine test, or watching a publicly
accessible videotape.
We reject the Center's argument that the mere selling of a
product on the open market can constitute evidence of cus-
tomary disclosure. The District Court correctly determined
that the fact that intervenor-defendants sold cars with air-
bags to the public does not constitute evidence of customary
disclosure. The District Court explained that dismantling
airbags is "dangerous, time-consuming and expensive," and
the information at issue in this case cannot be discovered
simply by looking inside a car or taking apart a steering
column or dashboard. Mem. Op. at 32. We agree--indeed,
to find otherwise would so dilute the meaning of customary
disclosure, as to render the requirement meaningless. The
Information Requests specified that respondents must submit
information for each vehicle, make, and model manufactured
or imported into the United States between 1990 and 1998.
Information Request, reprinted in J.A. 328. The fact that
airbags can be bought on the open market and inspected
certainly does not establish that information describing the
physical characteristics of every vehicle produced over many
years is customarily disclosed.
Although we agree that the mere sale of a product to the
public does not constitute customary disclosure, there is one
aspect of the District Court's opinion that is flawed. In
Niagara Mohawk, this court held that information must be
disclosed if identical information is in the public domain. "[I]f
identical information is truly public, then enforcement of an
exemption cannot fulfill its purposes." Niagara Mohawk, 169
F.3d at 19. The "identical information" basis for disclosure
is, however, entirely distinct from the "customary disclosure"
standard. Under the former test, the party favoring disclo-
sure has the burden of demonstrating that the information
sought is identical to information already publicly available;
under the latter test, the burden is on the party opposing
disclosure to prove that the information is of a kind that
would customarily not be released to the public. Critical
Mass, 975 F.3d at 879. In this case, the District Court
appeared to hold that the Center could obtain release of the
information only if information of that kind is customarily
disclosed and the identical information has been disclosed.
Mem. Op. at 39. This is not a correct statement of the law.
Despite this legal error, the District Court correctly reject-
ed much of the Center's purported evidence of customary
disclosure. The Center contends that customary disclosure is
shown by the fact that many of the submissions to NHTSA
had nothing more than detail to distinguish them from mate-
rials previously disclosed by the respondents. In other
words, the Center argues that a difference in level of detail is
inadequate to establish a difference in type of information.
This argument is unpersuasive. In truth, substantial differ-
ences in level of detail can produce a difference in type of
information. Thus, for example, a one time disclosure of
information regarding a single model in a particular year will
not likely create a genuine issue of material fact regarding
the customary disclosure of multi-year, multi-model informa-
tion.
The fallacy of the Center's claim is manifest even in the
evidence that the Center itself highlights. The Center cites a
declaration by Tamio Arakawa as evidence that Toyota cus-
tomarily disclosed information which Center now seeks. Ara-
kawa explained,
The information contained in [Center for Auto Safety's
exhibit] is general information for a generic 1993-94
Toyota vehicle. Unlike the information contained in
Toyota's response to NHTSA's information request,
[Center for Auto Safety's exhibit] does not contain specif-
ic data for particular Toyota vehicles or for model years
1990-98. For example, the information described in
[plaintiff's exhibit] regarding sensor and deployment
thresholds is limited to head-on collisions. Deployment
thresholds are not determined by only head-on collision
data. The information that Toyota is seeking to protect
from disclosure in this litigation include threshold values
for various types of collisions for every 1990-98 Toyota
Vehicle.
Arakawa Supp. p 8, reprinted in J.A. 574-75. Contrary to
the Center's assumptions, it was eminently reasonable for the
District Court to conclude that the differences described by
Arakawa show that the difference between the disclosed
information and the submitted information is a difference in
type. The Center pointed to information Toyota disclosed
regarding a generic 1993-94 Toyota vehicle; the information
at issue covers data for every 1990-98 Toyota vehicle. The
former is not evidence of customary disclosure of the latter.
In sum, most of the District Court's findings on customary
disclosure are supported by the record and consistent with
applicable law. However, as a result of the District Court's
misapplication of the Niagara Mohawk legal standard, some
questions still remain regarding whether the intervenor-
defendants customarily disclosed certain information at issue.
For example, the Center submitted evidence that "GM public-
ly disclosed a chart listing, by vehicle model for MY 1993-
1996, the driver and passenger airbag material and weave."
Appendix A, reprinted in J.A. 337. At oral argument, coun-
sel for intervenor-defendants was unable to explain why this
multi-year, multi-model information should not constitute evi-
dence of customary disclosure. Following argument counsel
submitted a letter to the court pointing to the supplemental
declaration of C. Thomas Terry in response. Terry's supple-
mental declaration asserted that GM's release of information
did not reflect a policy of customary disclosure of the type of
information GM provided in response to the Information
Request. According to Terry, the comments were an "isolat-
ed release of information" and differed in "specificity, mea-
surement criteria, and other material respects." Supplemen-
tal Declaration of C. Thomas Terry, reprinted in J.A. 505, p 4,
507, p 14. Aside from these general claims, Terry presented
nothing concrete to support this position. Furthermore, Ter-
ry noted that "[a]ny information in the comments that was
identical to specific responses to the Information Requests
has been disclosed." Id. at 505, p 4. As we have explained,
however, the information need not have been identical to
constitute customary disclosure.
Applying the appropriate legal standard on remand, the
District Court must determine whether Terry's declaration,
and any other relevant responses by intervenor-defendants,
are adequate to defeat any claim of customary disclosure.
The same inquiry must be made with respect to the 10
information items the District Court held were trade secrets
and any other information item that is questionable due to the
District Court's error in applying Niagara Mohawk. On
remand, the District Court need not retry the entire case, for,
as we have noted, most of the findings at issue easily survive
challenge. It will be up to the Center to identify any other
disputed material, like the aforecited material discussed in
the Terry Declaration, that may have been analyzed pursuant
to an incorrect legal standard by virtue of the District Court's
flawed application of Niagara Mohawk.
III. Conclusion
Based on the foregoing analysis, the case is remanded to
the District Court for further proceedings consistent with this
opinion.