## Facts

- The Institute of Nuclear Power Operations (INPO) voluntarily submitted plant-specific nuclear safety reports and performance evaluations to the Nuclear Regulatory Commission (NRC) on the understanding they would be kept confidential.
- INPO did not customarily make these reports available to the public.
- Critical Mass Energy Project (CMEP) filed a FOIA request seeking the INPO reports in the NRC’s possession.
- The NRC withheld the reports under FOIA Exemption 4, asserting they were confidential commercial or financial information.
- The district court granted summary judgment for the NRC and INPO, and the case proceeded to the D.C. Circuit en banc to address the proper Exemption 4 standard for voluntary submissions.

## Issues

1. Whether commercial or financial information voluntarily submitted to a federal agency is “confidential” under FOIA Exemption 4.
2. Whether the National Parks test applies to voluntary submissions, or should be limited to information the government requires to be submitted.

## Decision

- The D.C. Circuit (en banc) affirmed summary judgment for the NRC and INPO.
- The court reaffirmed the National Parks two-part test but confined it to information required to be submitted to the government.
- For voluntarily submitted information, the court adopted a separate rule: such information is “confidential” under Exemption 4 if it is of a kind the submitter would not customarily make available to the public.
- Because INPO’s reports were voluntarily submitted and not customarily disclosed, they qualified as confidential and were properly withheld.

## Legal Principles

- FOIA Exemption 4 covers “commercial or financial information obtained from a person” that is “privileged or confidential.”
- For required submissions, information is “confidential” under Exemption 4 if disclosure is likely to (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial competitive harm to the submitter (National Parks test).
- For voluntary submissions, information is “confidential” under Exemption 4 if it is the type of information the provider does not customarily release to the public, without requiring proof of likely competitive harm or governmental impairment.
- FOIA does not require agencies to structure information-gathering programs to maximize disclosure; it operates through a disclosure mandate subject to enumerated exemptions, including Exemption 4.

## Conclusion

The en banc court held that Exemption 4 applies under a dual standard: the National Parks test governs compelled submissions, while voluntary submissions are confidential if they are not customarily public, making INPO’s voluntarily provided safety reports exempt from disclosure.


Critical Mass Energy Project v. Nuclear Regul. Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (en banc)