Chiquita Brands International v. SEC , 805 F.3d 289 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2014 Decided July 17, 2015
No. 14-5030
CHIQUITA BRANDS INTERNATIONAL INC.,
APPELLANT
v.
SECURITIES AND EXCHANGE COMMISSION AND NATIONAL
SECURITY ARCHIVE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00435)
Mark H. Lynch argued the cause for appellant. With him
on the briefs were James M. Garland, Mark W. Mosier,
Ashley M. Sprague, and Jaclyn E. Martínez Resly.
Sarah E. Hancur, Senior Counsel, Securities and
Exchange Commission, argued the cause for appellee
Securities and Exchange Commission. With her on the brief
were Melinda Hardy and Thomas J. Karr, Assistants General
Counsel.
2
Adina H. Rosenbaum argued the cause for appellee
National Security Archive. With her on the brief was Michael
T. Kirkpatrick. Jeffrey S. Gutman entered an appearance.
Before: GRIFFITH, KAVANAUGH, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge:
Pursuant to the Freedom of Information Act, the National
Security Archive requested investigative materials that the
Securities and Exchange Commission had gathered involving
payments made to paramilitary groups in Colombia by a
subsidiary of Chiquita Brands International. Chiquita
requested that the Commission deny the Archive’s request,
arguing that releasing the records at this point in time would
deprive the company of a fair trial in pending multi-district
litigation in Florida. Neither the Commission nor the district
court hearing this reverse-FOIA action thought release would
deprive Chiquita of a fair trial. We agree with them.
I
A familiar brand in American households, Chiquita
produces, markets, and distributes bananas and other produce
worldwide. During the time relevant to this appeal, Chiquita
worked in Colombia through a subsidiary known as Banadex.
In 2001, Chiquita reached a cease-and-desist settlement
with the Securities and Exchange Commission regarding
charges that Banadex violated the Securities Exchange Act of
1934 by failing to accurately record certain payments made to
3
local officials in Colombia. In 2007, following further
investigation of Banadex by the Justice Department (DOJ),
Chiquita pled guilty in the United States District Court for the
District of Columbia to a single felony count under 50
U.S.C. § 1705(b) (2006) and 31 C.F.R. § 594.204 of engaging
in unauthorized transactions with Autodefensas Unidas de
Colombia (AUC), a group that the federal government had
designated as a global terrorist organization. During the
course of the DOJ’s investigation, Chiquita acknowledged
that Banadex had made the payments demanded by AUC but
insisted the company did so only to protect its Colombian
employees from being kidnapped, injured, and murdered.
Chiquita produced thousands of documents related to those
payments to investigators from the DOJ and the Commission,
requesting that the Commission treat the records it received
confidentially and not release them under the Freedom of
Information Act (FOIA). See 17 C.F.R. § 200.83 (detailing
the SEC’s confidential treatment procedures). In 2011, the
DOJ released over 5,500 pages of these documents to the
National Security Archive (Archive) under FOIA. The
collection, which is available to the public on the Archive’s
website, includes notes, memoranda, and internal
communications regarding Banadex’s payments to AUC and
other armed groups in Colombia.
The Archive describes itself as a non-profit library
located at George Washington University in Washington,
D.C., that, among other things, collects and publishes
declassified documents related to U.S. national security. In
2000, the Archive initiated its Colombia Documentation
Project—a campaign that has led to the filing of nearly 3,000
FOIA requests with various federal agencies for documents
related to issues involving the United States and Colombia,
such as narcotics trafficking, drug cartels, and paramilitary
4
groups. The Archive filed two FOIA requests with the SEC in
November 2008 seeking documents related to the federal
investigations of Banadex that led to the cease-and-desist
settlement and the guilty plea, as well as any documents from
1989 onward in the SEC’s possession relating to the
company’s finances. The Commission identified
approximately twenty-three boxes of responsive documents
that Chiquita had submitted, including forms describing the
date and amount of payments made to paramilitary groups, as
well as the identities of those who authorized the payments;
accounting memoranda prepared by Banadex employees;
receipts, ledgers, and spreadsheets documenting the
payments; legal documents, internal reports, auditors’ notes,
and other internal correspondence analyzing and discussing
the payments; and transcripts of depositions taken of
Chiquita’s employees. This appeal involves those documents
the Commission identified that relate to Banadex’s payments
to AUC and other such groups, some of which appear to be
similar to the records already released to the Archive by the
DOJ in 2011.
When the Commission receives a FOIA request and
determines that the documents requested should be released,
its regulations require the Commission to send notice of this
decision to the confidential treatment requestor that originally
produced the documents to the Commission and asked that
they not be released under FOIA (Chiquita, in this case). 17
C.F.R. § 200.83(d)(1). The requestor must then submit a
written statement to the Commission’s Office of Freedom of
Information and Privacy Act Operations (or Office of FOIA
Services) substantiating the original confidential treatment
request and explaining “why the information should be
withheld from access” under FOIA. Id. § 200.83(d)(2)(i). The
Office then issues a preliminary decision to grant or reject the
5
request. Id. § 200.83(e)(1). A requestor that disagrees with the
preliminary decision of the Office may submit supplemental
arguments and request a final decision. Id. An adverse final
decision can be appealed to the Commission’s General
Counsel, whose decision is reviewable in federal court. Id.
§ 200.83(e)(3), (5).
Chiquita is now embroiled in multi-district litigation in the
United States District Court for the Southern District of
Florida brought by Colombian citizens who allege that
Chiquita and some of its former officers should be held liable
for making payments to paramilitary organizations such as
AUC that tortured and murdered the plaintiffs and their
families. These plaintiffs originally raised federal claims
under the Alien Tort Statute and the Torture Victim
Protection Act, as well as claims under state and Colombian
law. Since 2008, discovery has been stayed while the parties
litigated jurisdictional issues that the district court certified for
interlocutory review. Although the federal claims against
Chiquita have been dismissed as a result of that interlocutory
appeal, Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185
(11th Cir. 2014), other claims remain pending. Chiquita and
its fellow defendants have filed motions to dismiss and
discovery remains stayed until those motions are resolved.
See Order Granting Pls.’ Emergency Mot. for Leave to Take
Depositions 5, No. 0:08-01916-KAM (S.D. Fla. April 7,
2015) (Dkt. No. 759); see id. at 18-19 (partially lifting the
discovery stay to permit the parties to engage in certain
limited discovery).
II
When told of the Archive’s FOIA request, Chiquita
invoked FOIA Exemption 7(B) in its plea to the
6
Commission’s Office of FOIA Services that the documents be
withheld from the Archive. See 5 U.S.C. § 552(b)(7)(B).
Their release, Chiquita asserted, would deprive the company
of a fair trial in the Florida litigation. Because the Archive is
directly affiliated with and actively supports the Florida
plaintiffs’ counsel, Chiquita argued, releasing these
confidential documents to the Archive would be tantamount
to giving them to the plaintiffs. Doing so would be an end-
run around the protections afforded the defendants in the
discovery process yet to be established in the Florida
litigation. That court, Chiquita maintained, ought to be the
arbiter of what information the plaintiffs may see and use.
Otherwise, the plaintiffs might gain premature access to
documents relevant to their claims and enjoy an unfair
advantage. The Office rejected Chiquita’s argument. Chiquita
tried again, and once more, the Office said no.
Chiquita appealed its loss to the Commission’s General
Counsel, arguing that release of the records would interfere
with the fairness of the Florida litigation by providing the
plaintiffs with early and unilateral access to relevant
documents without a protective order in place, and by
generating pretrial publicity that would taint future jurors.
Chiquita, however, did not assert that the Florida plaintiffs
would be unable to get these documents through discovery
and conceded that it will produce the documents to its
opponents when and if they become available through
discovery. 1 The General Counsel concluded that no undue
advantage would come from the plaintiffs gaining access to
1
Chiquita informed the Commission that some of the
documents the Archive requested contain privileged legal work
product that would be protected from discovery in the Florida
litigation. The company no longer advances that argument.
7
these documents through FOIA before they could obtain them
through discovery and that their release without a protective
order would not result in adverse pretrial publicity that would
bias jurors.
In April 2013, Chiquita filed this action in the United
States District Court for the District of Columbia, arguing that
the Commission’s failure to apply Exemption 7(B), and its
refusal to apply certain redactions Chiquita requested, were
arbitrary and capricious under the Administrative Procedure
Act, 5 U.S.C. § 706. Chiquita Brands Int’l v. SEC, 10 F.
Supp. 3d 1 (D.D.C. 2013). The Archive intervened on the
Commission’s behalf. The district court granted summary
judgment to the Commission, finding, as relevant here, that
there was “no doubt that the SEC rationally determined from
the record that disclosure . . . would not seriously interfere
with the fairness of the Florida litigation.” Id. at 5.
Chiquita appealed only the district court’s holding related
to Exemption 7(B). Having abandoned its claim that release
of the documents would deprive the company and its officers
of an unbiased jury, Chiquita argues only that Exemption 7(B)
should bar the release of all documents relevant to the Florida
litigation until discovery in that case begins and Chiquita can
apply for a protective order. We granted an injunction barring
their release pending resolution of this case, and we have
jurisdiction under 28 U.S.C. § 1291. “In a case like [this], in
which the District Court reviewed an agency action under the
APA, we review the administrative action directly, according
no particular deference to the judgment of the District Court.”
Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir.
2002). We review de novo the Commission’s interpretation of
FOIA. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001).
We will uphold the Commission’s application of Exemption
8
7(B) to the facts here unless its decision was arbitrary,
capricious, or unlawful. 5 U.S.C. § 706(2)(A).
III
FOIA “requires government agencies to make public
virtually all information that is not specifically exempted from
disclosure under the Act.” North v. Walsh, 881 F.2d 1088,
1093-94 (D.C. Cir. 1989). Government agencies must
generally release requested records without regard to the
identity or motive of the requestor. See, e.g., NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 n.23 (1978) (holding
that a FOIA requestor’s rights are neither “diminished” nor
“enhanced” in light of a “particular, litigation-generated need
for these materials”). In consequence, FOIA sometimes
enables litigants to obtain documents that would otherwise be
unavailable, or less readily available, through the discovery
process. North, 881 F.2d at 1099 (“[A]n individual may . . .
obtain under FOIA information that may be useful in non-
FOIA litigation, even when the documents sought could not
be obtained through discovery.”). “Because FOIA establishes
a strong presumption in favor of disclosure . . . requested
material must be disclosed unless it falls squarely within one
of the nine exemptions carved out in the Act.” Burka v. U.S.
Dep’t of Health and Human Servs., 87 F.3d 508, 515 (D.C.
Cir. 1996). We construe these exemptions narrowly and place
the burden of proof on the party opposing disclosure. See,
e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,
777 F.3d 518, 522 (D.C. Cir. 2015) (“FOIA’s exemptions are
explicitly made exclusive and must be narrowly construed.”
(internal quotation marks omitted)); Jurewicz v. U.S. Dep’t of
Agric., 741 F.3d 1326, 1334 (D.C. Cir. 2014) (noting that a
party who opposes an agency’s decision to disclose records
9
under FOIA “must demonstrate that [the agency’s] conclusion
is arbitrary and capricious or contrary to law”).
Chiquita relies on FOIA Exemption 7(B), which protects
against the release of “records or information compiled for
law enforcement purposes [the disclosure of which] . . .
would deprive a person of a right to a fair trial or an impartial
adjudication.” 5 U.S.C. § 552(b)(7)(B). In Washington Post
Co. v. U.S. Dep’t of Justice, we held that Exemption 7(B)
requires a showing “(1) that a trial or adjudication is pending
or truly imminent; and (2) that it is more probable than not
that disclosure of the material sought would seriously
interfere with the fairness of those proceedings.” 863 F.2d 96,
102 (D.C. Cir. 1988). The parties agree that the Florida
litigation satisfies the “pending or truly imminent” judicial
proceeding prong of this test. They dispute only whether
release of the records “would seriously interfere with the
fairness of those proceedings.”
To that end, the Commission and the Archive argue that
the exemption should apply only if releasing the records
would interfere with the fairness of the trial and thereby affect
the overall fairness of the proceeding. The General Counsel
applied that standard to reject Chiquita’s request for
confidential treatment, reasoning that Chiquita failed to show
how releasing the records could confer an unfair advantage on
the Florida plaintiffs that more likely than not would affect
the fairness of an eventual trial. Chiquita disagrees, arguing
that the way we construed Exemption 7(B) in Washington
Post prevents an agency from granting a FOIA request for law
enforcement records whenever litigation is pending and the
documents requested are not yet available in discovery. To
Chiquita, granting access to law enforcement records through
FOIA when the same records are not yet available in
10
discovery necessarily confers a litigating advantage on a party
during the discovery phase of an adversarial proceeding.
Exemption 7(B) thus bars release of records under such
circumstances, according to Chiquita, without regard to
whether any advantage conferred during the pretrial process
could impact the fairness of the trial.
We agree with the Commission.
A
1
“Our consideration of Exemption [7(B)]’s scope starts
with its text.” Milner v. Dep’t of the Navy, 562 U.S. 562, 569
(2011). By its own terms, Exemption 7(B) applies only when
the disclosure of law enforcement records would deprive a
person of the right to “a fair trial or an impartial
adjudication.” 5 U.S.C. § 552(b)(7)(B). It has long been
settled that the word “trial” means the ultimate determination
of factual and legal claims by judge or jury in a judicial
proceeding. See, e.g., Carpenter v. Winn, 221 U.S. 533, 539
(1911) (defining the term “trial” in a federal statute, in
accordance with its common law definition, as “that step in an
action by which issues or questions of fact are decided” and
as “that final step” in a legal proceeding involving “judicial
examination of both matters of fact and law” (internal
quotation marks omitted)); United States v. Ray, 578 F.3d
184, 196 (2d Cir. 2009) (“A trial resolves disputed questions
of law and fact; it is ‘a judicial examination and determination
of issues between parties to an action[.]’”) (quoting BLACK’S
LAW DICTIONARY 1504 (6th ed. 1990) (internal brackets
omitted)); 64 CORPUS JURIS Trial § 2 (1933) (“The term ‘trial’
contemplates a final disposition of the controversy, either on
11
the facts or on a question of law[.]”). Assuming that Congress
used the word “trial” in light of its long-settled meaning, we
agree with the Commission and the Archive that Exemption
7(B) comes into play only when it is probable that the release
of law enforcement records will seriously interfere with the
fairness of “that final step which is called ‘the trial.’”
Carpenter, 221 U.S. at 539.
Chiquita asks us to disregard the phrase “fair trial” and
focus instead on Exemption 7(B)’s protection of an “impartial
adjudication,” 5 U.S.C. § 552(b)(7)(B), reasoning that the
term “adjudication” applies to a decision made at any point
during a judicial proceeding (such as discovery). But in other
contexts, the Supreme Court and we have interpreted
“adjudication” as it appears in FOIA by referring to the
definition contained in the Administrative Procedure Act (to
which FOIA belongs), where “adjudication” is defined as the
“agency process for the formulation of an order,” 5
U.S.C. § 551(7). See NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 158 (1975); Rockwell Int’l Corp. v. U.S. Dep’t of
Justice, 235 F.3d 598, 602 (D.C. Cir. 2001). Further, the
Attorney General’s memorandum on the 1974 FOIA
amendments takes the position that “adjudication” as used in
Exemption 7(B) refers to quasi-judicial decisionmaking by
federal and state administrative agencies. DEP’T OF JUSTICE,
ATTORNEY GENERAL’S MEMORANDUM ON THE 1974
AMENDMENTS TO THE FREEDOM OF INFORMATION ACT 8-9
(1975), reprinted in House Committee on Government
Operations and Senate Committee on the Judiciary, Freedom
of Information Act and Amendments of 1974 (P.L. 93-502),
94th Cong., 1st Sess., 507, 518-19 (Jt. Comm. Print 1975); cf.
FCC v. AT&T Inc., 562 U.S. 397, 409 (2011) (describing the
Attorney General’s memorandum as “a reliable guide in
12
interpreting FOIA”). 2 We thus think that the phrase “impartial
adjudication” as it appears in the statute refers to
determinations made by administrative agencies, not to
pretrial decisions issued by a judge. Instead, Congress chose
the language it did in Exemption 7(B) to guarantee parallel
protections of fundamental fairness to parties involved in both
judicial proceedings (“trial”) and administrative proceedings
(“adjudication”).
Chiquita makes the additional point that a party’s right to
a fundamentally fair decisionmaking process can be denied
through any number of events that happen before the trial.
Undoubtedly so. But Chiquita is wrong to urge that a slight
advantage conferred on a party in a single phase of a case
necessarily threatens the fairness of the trial. That position
defies the text of Exemption 7(B), which tells us to assess the
significance of any alleged unfairness in light of its effect on
the trial and thus on the proceedings as a whole.
2
Though Chiquita insists otherwise, in Washington Post we
applied this same standard, focusing on whether the release of
law enforcement records would seriously interfere with the
fairness of the proceedings as a whole. Chiquita points to a
single sentence in our opinion where we noted the possibility
that “disclosure through FOIA would furnish access to a
document not available under the discovery rules and thus
would confer an unfair advantage on one of the parties.” 863
F.2d at 102. To Chiquita, this sentence stands for two
propositions. First, Exemption 7(B) bars a release of law
2
We do not address in this case the scope of administrative
proceedings to which Exemption 7(B) applies.
13
enforcement records that would give one party a leg up on its
adversary during pretrial discovery, no matter whether that
advantage has an impact on the outcome of the trial. Second,
an unfair advantage automatically results where the records
requested through FOIA are, as here, not yet available
through discovery, even though they will be discoverable
when the time comes. But Washington Post does not support
such a broad reading of the exemption.
In that case, a newspaper reporter submitted a FOIA
request to the DOJ, which was investigating allegations that
pharmaceutical manufacturer Eli Lilly marketed an arthritis
drug, Oraflex, to Americans while neglecting to tell regulators
or consumers that the drug had caused severe adverse
reactions among patients overseas. In the face of pending
product-liability and shareholder litigation, Eli Lilly
commissioned a special committee of outside directors to
conduct an internal investigation into the development and
marketing of the drug and assess the company’s exposure to
liability and its available legal options. That committee
produced a comprehensive report that “evaluate[d] [Eli
Lilly’s] past conduct, defenses, liabilities and potential civil
claims against others” arising out of the Oraflex incident.
Washington Post, 863 F.2d at 100. After Eli Lilly produced
the report to the DOJ, the Post made a request for the
document under FOIA. The DOJ denied that request based, in
part, on Exemption 7(B). When the Post challenged this
decision, the district court agreed with the government.
Neither the DOJ nor Eli Lilly advanced Chiquita’s theory
that Exemption 7(B) bars disclosure when discovery has yet
to begin. Instead, they argued that disclosing the directors’
report would taint potential jurors who would eventually
decide the question of Eli Lilly’s liability for marketing
14
Oraflex. See Eli Lilly Br. at 37 (arguing that “the Report, if
disclosed, would receive widespread attention” and the “self-
critical statements” it contained would prove “extremely
prejudicial” in future tort actions against Eli Lilly); Dep’t of
Justice Br. at 44 (arguing that releasing the report would
allow “the jury-selection process” to be “hamstrung” by
exposing jurors to the “extensively publicized” contents).
Although both the DOJ and Eli Lilly asserted that the
directors’ report would be protected by the self-evaluative
privilege and therefore unavailable to the company’s
opponents in discovery, they did not argue that this fact alone
would deprive the company of a fair trial. Nor did they claim
that disclosing the report would give Eli Lilly’s adversaries an
unfair head start at case development. Instead, they
emphasized that the concerns about prejudicing future jurors
were heightened in light of the possibility that the report
would otherwise be permanently unavailable to the
company’s opponents in discovery. See Eli Lilly Br. at 37
(arguing that “particularly in light of [Eli] Lilly’s privilege
against producing the Report in civil litigation,” the company
should not be “subjected to the possibility” of having its
liability adjudicated “before jurors who have learned the
contents of the Report outside the courtroom”); Dep’t of
Justice Br. at 44 (arguing that there was “a concrete prospect
that courts . . . may hold the report at issue privileged”).
These arguments provide necessary context for our
observation in Washington Post that disclosure of the report
of the outside directors, a document unavailable in discovery,
would grant the company’s adversaries an “unfair advantage”
and thus deprive Eli Lilly of a fair trial. 863 F.2d at 102.
Contrary to Chiquita’s reading of Washington Post, we
examined whether releasing the directors’ report would likely
cause unfairness that could affect an eventual trial, and not
15
simply disadvantage Eli Lilly in discovery. We made clear
that a party invoking Exemption 7(B) must show that
disclosure would impair his right to a fair trial, not merely that
disclosure would temporarily disadvantage him during a
single stage of a judicial proceeding. Writing on what we
called a “virtually clean slate,” we “fram[ed] a test” by
focusing on “[w]hat is required to establish that production of
a document [through FOIA] would deprive a person of a right
to a fair trial.” Id. at 101 (emphasis added). We answered that
question by concluding that Exemption 7(B) applies only
where a “trial” (or “adjudication”) is pending and it is more
probable than not that disclosure would “seriously interfere
with the fairness of those proceedings.” Id. at 102. Applying
that test, we emphasized that the DOJ and Eli Lilly had to
show on remand that disclosure of the report would deprive
the company “of a fair trial.” Id.
Nor did we say in Washington Post that Exemption 7(B)
always forbids releasing records if litigants in a pending case
would be unable to access them (yet or ever) through
discovery. No party in Washington Post urged us to adopt
such a broad holding, and the arguments that were before us
dispel any notion that we did so. Instead, we reiterated that
FOIA exemptions are to be “construed narrowly” in favor of
disclosure. 863 F.2d at 101. And in a case decided just months
later, we observed that by virtue of the language Congress
chose, FOIA allows litigants to access documents that are not
available in discovery. North, 881 F.2d at 1099. Chiquita’s
reading of our opinion in Washington Post instead stretches
Exemption 7(B) far beyond its text to bar wholesale the
release of law enforcement records whenever they are not
discoverable and regardless of whether disclosure threatens
the fairness of the trial itself. Even further, Washington Post
involved a document that the parties argued was privileged
16
and completely protected from discovery, not—as here—
documents that Chiquita concedes the plaintiffs might get one
day, just not yet.
True, we did observe that, if the special report was
unavailable through discovery, its release “would confer an
unfair advantage on one of the parties.” Washington Post, 863
F.2d at 102. But that observation must be read in the context
of the strategic magnitude of that particular report and the
obvious unfair advantage such an important document would
likely confer throughout an entire case if released to the Post
and published widely to potential jurors when a jury might
never have seen the report at all due to its privileged status. In
short, we construed Exemption 7(B) narrowly and according
to its text, the same way the Commission did here: to apply
when the release of documents would likely deprive a party of
a fair trial, not merely complicate the discovery schedule.
3
Chiquita responds that even if Exemption 7(B) protects
only the overall fairness of a judicial proceeding, the
Commission did not apply such a standard. We disagree. The
Commission properly disposed of Chiquita’s arguments on
the ground that the company could not show how disclosure
would matter in the big picture and impact the fairness of a
future trial. 3 This is the proper legal standard under both the
3
In evaluating Chiquita’s claim that releasing the records
would taint potential jurors, the General Counsel consulted the
Supreme Court’s jurisprudence about when pretrial publicity
adverse to a criminal defendant justifies a change in venue.
Chiquita is wrong that the General Counsel thereby held Chiquita
had to prove that disclosure would deprive the company of its
constitutional right to a fair trial. The General Counsel merely
17
text of Exemption 7(B) and Washington Post, and although
the Commission’s counsel described this standard on appeal
using a new phrase (“overall fairness”), we have never held
that an agency on appeal is limited to reciting only the very
words in the challenged order. The Commission observed
correctly that Exemption 7(B) protects the right to a fair trial,
and maintains the consistent position before us that
Exemption 7(B) protects the overall fairness of a judicial
proceeding of which decisionmaking at trial is the touchstone.
B
Finally, we think the Commission reasonably applied
Exemption 7(B) and concluded that disclosure of the records
to the Archive will not “seriously interfere with the fairness”
of the Florida proceedings. Washington Post, 863 F.2d at 102.
The Commission reasonably determined that Chiquita had
not met its burden of showing how releasing the law
enforcement records to the Archive would deprive the
company or its officers of a fair trial. Chiquita did not explain
how any temporary head start conferred on the Florida
plaintiffs could render any trial in that litigation unfair by
depriving Chiquita of the full and fair opportunity to present
its case. Nor did Chiquita distinguish any momentary upper
hand at fact-gathering gained here from any other situation in
which one party obtains valuable information from witnesses
and other third parties outside the formal discovery process
while under no obligation to produce similar information to
found it helpful to consider the Supreme Court’s guidance in an
analogous setting. As Chiquita no longer challenges the General
Counsel’s decision regarding pretrial publicity, we need not
consider whether he reached the correct conclusion.
18
its adversaries. Cf. Am. Bank v. City of Menasha, 627 F.3d
261, 265 (7th Cir. 2010) (“The word ‘discovery’ is not a
synonym for investigation. Much of the information gathering
that litigants do is not ‘discovery’ as the term is understood in
the law.”). The company did not even address whether the
district court could easily rectify any fleeting advantage in
information-gathering when the parties eventually meet to
develop a formal discovery schedule. By presenting no
argument at all to the Commission on these obvious points,
Chiquita failed to meet its burden of showing how any
asymmetry in information exchange could affect an eventual
trial in the Florida litigation. Instead, the company
erroneously rested on the legal theory that it simply had to
show the documents sought are presently unavailable to the
Florida plaintiffs, without showing how releasing those
records now would impair the fairness of a future trial.
Chiquita argues that the Commission’s decision was
nonetheless defective in light of SEC v. Chenery Corp., 318
U.S. 80 (1943), because the agency failed to explain the
rationale underlying its decision, and the reasons it offers now
do not appear in the administrative record, see id. at 87 (“The
grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was
based.”). The Commission’s rejection of Chiquita’s
discovery-related argument was articulated only briefly and in
a somewhat conclusory fashion, and the Commission has
highlighted certain ways that Chiquita did not meet its burden
that were not specifically discussed in the order under review.
Even so, we find no violation of the Chenery principle.
“Although it is axiomatic that we may uphold agency orders
based only on reasoning that is fairly stated by the agency in
the order under review . . . the contested decision need not be
a model of clarity.” Casino Airlines, Inc. v. NTSB, 439 F.3d
19
715, 717 (D.C. Cir. 2006) (internal brackets and quotation
marks omitted). The Commission’s decision clears that low
bar. The Commission’s General Counsel found that Chiquita
had not shown how the early release of the documents would
render discovery so one-sided as to jeopardize fairness at trial,
and counsel for the Commission takes the same position on
appeal. Chenery does not bar an agency’s counsel from
merely elaborating on the consistent stance the agency
articulated below.
Finally, Chiquita argues that the Commission failed to
consider adequately the company’s argument that releasing
the documents through FOIA would preclude Chiquita from
seeking an appropriate protective order. If the documents
were obtained through discovery instead, Chiquita notes that
it could obtain a protective order prior to releasing the records
to the Florida plaintiffs. That protective order would prohibit
the plaintiffs and their associates from misusing the
documents by publicizing them, speculating as to the
identities of their authors, or mischaracterizing their contents.
We reject this argument. Exemption 7(B) is not a tool to
protect reputation and privacy interests unless the damage
disclosure might pose to such interests is likely to impact the
ultimate fairness of a trial. Chiquita no longer claims, as it did
below, that release of the documents through FOIA, without
the opportunity for a prior protective order, will impair
judicial fairness or bias potential jurors. And Chiquita has not
explained to us or the Commission how a trial in the Florida
litigation would be rendered unfair because the Archive and
20
the public have access to these documents. Absent such a
showing, Exemption 7(B) does not apply. 4
Chiquita points to the Supreme Court’s declaration in
Seattle Times Co. v. Rhinehart that discovery is conducted in
private and that members of the public have no unfettered
right to access documents obtained through discovery. 467
U.S. 20, 33 (1984). But Seattle Times was about discovery,
not FOIA, and “the FOIA disclosure regime . . . is distinct
from civil discovery.” Stonehill v. IRS, 558 F.3d 534, 538
(D.C. Cir. 2009). “[W]hile information disclosed during
discovery is limited to the parties and can be subject to
protective orders against further disclosure, when a document
must be disclosed under FOIA, it must be disclosed to the
general public and the identity of the requester is irrelevant to
whether disclosure is required.” Id. at 538-39. Because
Chiquita’s objection on this score derives from the distinct
characteristics of discovery, which are not relevant to the
purpose or text of FOIA, it cannot succeed.
IV
For the foregoing reasons, we affirm the judgment of the
district court and vacate the injunction pending appeal.
4
The General Counsel ordered the Office of FOIA Services to
determine whether certain files should be withheld from production
on privacy grounds and noted that the Office will redact personal
information from all remaining records. Chiquita thus has the
benefit of some protections for the privacy interests of its
employees. Chiquita does not appeal those aspects of the General
Counsel’s decision.