571 F.2d 195 (4th Cir. 1978), 76-2272, Charlotte-Mecklenburg Hosp. Authority v. Perry

Docket Nº:76-2272, 76-2273.
Citation:571 F.2d 195
Party Name:Dec. P 8091, CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, Appellee, v. Lowell W. PERRY, Chairman of the Equal Employment Opportunity Commission and the Equal Employment Opportunity Commission, Appellant. CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, Appellant, v. Lowell W. PERRY, Chairman of the Equal Employment Opportunity Commission and the Equal Employ
Case Date:January 26, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 195

571 F.2d 195 (4th Cir. 1978)

Dec. P 8091,



Lowell W. PERRY, Chairman of the Equal Employment

Opportunity Commission and the Equal Employment

Opportunity Commission, Appellant.



Lowell W. PERRY, Chairman of the Equal Employment

Opportunity Commission and the Equal Employment

Opportunity Commission, Appellee.

Nos. 76-2272, 76-2273.

United States Court of Appeals, Fourth Circuit

January 26, 1978

Argued April 4, 1977.

Page 196

Vella M. Fink, Atty., E. E. O. C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, E. E. O. C., Washington, D. C., on brief), for Lowell W. Perry and E. E. O. C.

John O. Pollard, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for Charlotte-Mecklenburg Hospital Authority.

Before CLARK, Supreme Court Justice, [*] HAYNSWORTH, Chief Judge, and RUSSELL, Circuit Judge.


Charlotte-Mecklenburg Hospital Authority (Hospital) brought this action against the Equal Employment Opportunity Commission (EEOC) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, 1 seeking to compel production of sworn statements taken by the EEOC from charging

Page 197

parties in connection with employment discrimination charges against it. It, also, requested in its complaint an injunction against further proceedings by the EEOC until its application for relief under the FOIA was disposed of.

The facts giving rise to the action are as follows: In 1974, eight hospital employees, eight former employees and two employment applicants filed employment discrimination charges with the EEOC alleging that Charlotte Memorial Hospital discriminated against blacks in hiring, promotion, termination, job classifications and employment terms and conditions. Five employees later amended their charges to include allegations of retaliatory discharge. The representatives of the EEOC also procured from the charging parties statements under oath, supplementary of their charges, pursuant to EEOC's instructions, as set forth in its Compliance Manual. 2

The EEOC gave the Hospital notice of the charges, including the names of the charging parties, the dates of the alleged violations and the general nature of the discriminatory charges. On May 1, 1975, the EEOC notified the Hospital that an investigation of the eighteen charges was to begin May 20, 1975. The Hospital thereupon wrote the investigator requesting copies of "the sworn statements (procured) from the charging parties which set forth the specifics of their claims." When the investigator failed to produce these "sworn statements," the Hospital denied the investigator permission to conduct an investigation and refused to allow him to enter its premises or to examine its employment files and records.

Denied access to the "sworn statements" of the charging parties, the Hospital proceeded to file with the EEOC a formal request pursuant to the FOIA for permission to examine and copy, insofar as pertinent here, "(a)ny and all affidavits, statements or memoranda to (sic) file regarding interviews conducted by the Commission or its agents with regard to the above referenced charges or any other charges filed against Charlotte Memorial Hospital." A month later, the EEOC's General Counsel advised the Hospital in reply that some information would be made available, but that the affidavits taken from witnesses who were either a present or a past employee would be withheld as exempt from disclosure under the FOIA. The Hospital was also told in this letter of the General Counsel that, if it wished, it might appeal his denial of disclosure to the EEOC. It did appeal to the Commission but the EEOC affirmed the decision of its General Counsel, finding that the affidavits of past and present employees were exempt from disclosure under the FOIA by reason of exemptions 3, 5, 7(A), 7(D) and 7(E), which authorize the withholding of records which are exempt by statute or "which, in the Commission's opinion, could jeopardize conciliation efforts, which would disclose staff recommendations, and which would interfere with the Commission's investigative procedures and confidential sources." It concluded its decision with the statement that if the Hospital were "dissatisfied with the decision of the Commission * * * it (might) file a civil action in the district court of the United States * * * ."

On October 14, 1975, the Hospital did file in the district court its complaint, seeking to compel production of the affidavits under the FOIA and to enjoin investigation of the charges, pending resolution of the FOIA dispute. The Hospital asserted that without the requested affidavits, it could not prepare and present a defense to the charges before the issuance of a reasonable cause determination.

Page 198

The EEOC three days later countered with a subpoena duces tecum for the production of Hospital documents relevant to the eighteen initial charges as well as two further charges. Upon the Hospital's failure to comply with the subpoena, it in turn filed an enforcement action on March 10, 1976.

On March 12, 1976, the EEOC moved for summary judgment in the Hospital's FOIA action, stating that the information sought was exempt from FOIA disclosure requirements under exemptions 3, 3 7(A) and 7(D) 4 of the Act. 5 On June 21, 1976, the District Court, after consolidating the two actions, i. e., the one by the Hospital for disclosure under the FOIA and the other by the EEOC to compel compliance with the subpoena duces tecum, denied the Hospital's request for preliminary injunctive relief and ordered it to comply with the subpoena, while postponing ruling on the summary judgment motion until the EEOC submitted the requested affidavits to the court in camera. After examining the affidavits, the district court issued its order, later revised, directing the EEOC to release the affidavits of twelve charging parties not then employed by the Hospital, stating that "there appears to be no reason" why the EEOC should not disclose these records. The Court also ordered the Hospital not to use or disclose the affidavits to any person except in connection with an investigation of the charges. The Court ruled the eight affidavits of current Hospital employees were not subject to disclosure under the FOIA as their release would have a "chilling effect" on the willingness of employees to make statements to the EEOC for fear of reprisal.

The EEOC has appealed from that part of the district court's order requiring disclosure of non-employee affidavits, while the Hospital has cross-appealed from the denial of production of employee affidavits.

We affirm.

It is the EEOC's thesis on its appeal that any sworn statements obtained by it from charging parties are specifically exempted from the disclosure mandated by the FOIA. For this premise, it relies on the exemptions spelt out (1) for matters "specifically exempted from disclosure by statute" 6 (exemption 3 of the Act) and (2) for "investigatory records compiled for law enforcement purposes" 7 (exemption 7 of the Act).

The District Court did not address specifically the first ground of objection raised by the EEOC based on exemption 3 of the FOIA, apparently finding it without merit. Whatever the circumstances under which it was dismissed below, the EEOC has renewed this claim of exemption on appeal and we shall consider it. In support of this claim, the EEOC relies on certain provisions of Title VII as providing a specific exemption from disclosure under exemption 3. 8 These provisions of Title VII command that "(c)harges (filed with the EEOC) shall not be made public by the Commission" and that "it shall be unlawful for any officer or employee of the Commission to make public * * * any information obtained by the Commission * * * prior to the institution of any proceeding * * * ." 9 Such

Page 199

provisions, the EEOC argues, constitute specific exemptions from disclosure of "the information sought by the Hospital." The Hospital, on the other hand, points out that other provisions of Title VII impose an obligation on the Commission to give the party charged (which in this case would be the Hospital) notice of the charge filed, " * * * (including the date, place and circumstances of the alleged unlawful employment practice) * * * ." 10 This provision of Title VII, it is reasoned by the Hospital, suggests a manifest distinction between, on the one hand, right of disclosure to the public generally, and, on the other hand, a right of disclosure to the parties themselves. 11 The Hospital argues that considering together these several provisions of Title VII those proscribing publicity of charges filed and those requiring notice of the charges to the charged employer and taking into consideration the purposes of the several sections, Title VII does not "specifically exempt from disclosure" either to the charging party or to the charged employer sworn statements obtained by the EEOC from the charging parties. That has been, it asserts, both the judicial and administrative construction of the Act and its prohibitions. 12

The EEOC does not seriously dispute the Hospital's argument that disclosure to the parties whether to the party charged or to the charging party is not within the prohibitions of Title VII. But it contends that disclosure of such sworn statements, even to the parties, though not prohibited, is discretionary with the EEOC and that it has exercised that discretion in this case in determining to deny disclosure. This argument, though, far from supporting immunity from disclosure, actually is an argument for...

To continue reading