Sears, Roebuck & Co. v. GENERAL SERVICES ADM'N

• Decision Date: 12 November 1974
• Docket Number: Civ. A. No. 2149-73.
• Parties: SEARS, ROEBUCK AND CO., Plaintiff, v. GENERAL SERVICES ADMINISTRATION et al., Defendants, and The Council on Economic Priorities, Intervenor.
• Court: U.S. District Court — District of Columbia

384 F. Supp. 996

SEARS, ROEBUCK AND CO., Plaintiff, v. GENERAL SERVICES ADMINISTRATION et al., Defendants and The Council on Economic Priorities, Intervenor.

Civ. A. No. 2149-73.

United States District Court, District of Columbia.

September 10, 1974.

As Amended November 12, 1974.

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S. Richard Pincus, Chicago, Ill., Burt A. Braverman, Washington, D. C., for plaintiff.

Earl L. Silbert, U. S. Atty, Arnold T. Aikens, Derek I. Meier, Asst. U. S. Attys., for defendants.

Collot Guerard, Thomas R. Asher, Media Access Project, Washington, D. C., for intervenor.

MEMORANDUM AND ORDER

BRYANT, District Judge.

In this action plaintiff Sears, Roebuck and Company ("Sears") seeks to prevent the disclosure to intervenor Council on Economic Priorities ("CEP" or "intervenor") of EEO-1 forms and affirmative action plans ("AAP's") submitted by nineteen Sears branches to defendant General Services Administration ("GSA" or "agency") and to the Office of Federal Contract Compliance, Department of Labor ("OFCC"), pursuant to Executive Order No. 11,246, 30 F.R. 12319 (1965), as amended by Executive Order No. 11,375, 32 F.R. 14303 (1967), and regulations promulgated thereunder, 41 C.F.R. § 60-2.1 et seq. (Revised Order 4) and 41 C.F.R. § 60-60.1 et seq. (Revised Order 14).¹

During the summer of 1973, CEP formally requested from defendant GSA copies of plaintiff's EEO-1's and AAP's, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Subsequent to that request, plaintiff sought to persuade GSA and OFCC not to disclose those materials. Plaintiff's representatives met and corresponded with defendants from September to December, 1973. At plaintiff's request, release was delayed so that the Freedom of Information Act Committee of the Department of Justice could be consulted. That committee agreed with defendants that the Freedom of Information Act and OFCC disclosure regulations, 41 C.F.R. § 60-40.1 et seq., require defendants to disclose the material sought by CEP.

Plaintiff was repeatedly offered the opportunity to review the requested materials and justify why any particular portion should be withheld under 41 C. F.R. § 60-40.3.² No disclosure was to be made until December 10, 1973, to allow plaintiff to avail itself of that opportunity. Throughout this period plaintiff maintained that the requested documents should remain undisclosed in their entirety, and neither specified sensitive portions nor offfered to do so.

On December 6, 1973, Sears filed the instant action to enjoin defendants from disclosing EEO-1's, AAP's, and related documents. Sears withdrew its motions for preliminary injunctive relief after defendants stipulated that they would not release any material, absent ten day notice to Sears, pending resolution of this suit. The court granted CEP's motion to intervene on December 26, 1973.

On February 4, 1974, plaintiff and defendants applied for a temporary restraining order to enjoin publication and compel return by CEP of an EEO-1 form inadvertently sent to CEP by GSA. This attempted prior restraint of CEP, a party not bound by GSA's stipulation not to disclose, was denied by the court.

Defendant has moved to dismiss, and plaintiff, defendants, and intervenor have each moved for summary judgment. Discovery has been stayed by stipulation pending this court's disposition of the pending motions.³

JURISDICTION

At the threshold this court faces the question of jurisdiction. It is clear that the FOIA itself does not confer jurisdiction. The Act was intended to promote disclosure, not to discourage it. Its exemptions provide categories of information which the government is not required to disclose, but it does not in its terms bar voluntary disclosure by the government of information in those categories.⁴ And it provides a right to de novo court review for those who are denied information, not for those who would suppress it. Sears is not within the class of intended beneficiaries of the Act, and we do not read into the Act an implied private right of action by those who would prevent disclosure.⁵

The Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., however, confers jurisdiction upon this court to consider Sears' claim. In its motion to dismiss the government appears to argue that APA jurisdiction is denied either by the exemption in 5 U. S.C. § 701(a)(2) for "agency action . . . committed to agency discretion by law," or by sovereign immunity. Both objections fail. The agency discretion exemption has been read narrowly to apply only when there is "no law" that can be applied by the court in its review of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). A decision to release information is no less susceptible to court review than a decision to deny disclosure; indeed courts in this circuit have expended great amounts of energy dealing with FOIA cases. And it is settled in this circuit that the APA is a waiver of sovereign immunity.⁶ Thus it seems clear that an agency decision to release data submitted to the agency by a private party is an "agency action" adversely affecting that private party and entitling that party to judicial review.⁷

Accordingly we need not decide whether jurisdiction is conferred by any other statutes.

SUMMARY JUDGMENT

All parties have moved for summary judgment. Additionally, Sears has asked for further discovery in the event that its motion for summary judgment is denied, such discovery being needed for Sears to augment its oppositions to defendants' and intervenor's motions. Sears' discovery requests relate to its claims under several exemptions of the FOIA, and will be discussed when we consider those claims, below.

The Freedom of Information Act does not confer jurisdiction over this action, nor do its exemptions make nondisclosure mandatory. But the policies behind those exemptions provide a sound basis for determining whether release of the documents in question would be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.⁸ Those policies will be applied.

The Freedom of Information Act is designed to encourage disclosure.

As the Supreme Court said in Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L. Ed.2d 119 (1973),

"Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands."

Section 552(b) of the Act lists categories of information that are exempt from its coverage. In construing these exemptions, the court must do so narrowly and resolve ambiguities in favor of disclosure.⁹ Sears claims that its EEO-1's and AAP's in their entirety should not be disclosable by GSA because of the law and policy articulated in exemptions 5 U.S.C. § 552(b)(3) (exempted by statute) and (b) (7) (investigatory files), and that, in the alternative, portions of those documents should be nondisclosable under exemptions (b)(4) (trade secrets and confidential commercial data) and (b)(6) (personnel records).

Exemption (b) (3)

Exemption (b)(3) applies to material "specifically exempted from disclosure by statute." Sears argues that Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e),¹⁰ should bar disclosure of its EEO-1 reports. Those reports are sent to the Joint Reporting Committee (JRC), which forwards copies to the appropriate federal compliancy agency for Executive Order No. 11,246 — in this case the Department of Labor (OFCC) — and to the Equal Employment Opportunity Commission (EEOC). Sears argues that the JRC is in reality an agent or alter ego of the EEOC because it is composed of personnel from EEOC and funded by the EEOC. Hence disclosure by the JRC, or by any agency receiving information from the JRC,¹¹ is barred by Section 709(e).

The difficulty with this argument is that § 709(e) is a criminal statute and must therefore be narrowly read, particularly in light of the requirement of exemption (b)(3) that material be "specifically exempt." And § 709(e), in its terms, applies only to "any officer or employee of the Commission," making public "information obtained by the Commission pursuant to its authority under this section."¹² The documents in question were obtained under the authority not of § 709, but of Executive Orders 11,246 and 11,375.¹³ And they were collected not by the EEOC, but by the OFCC, which has a function separate and distinct from that of the EEOC.

Nor, for the purposes of this statute, are members of JRC "employees" of EEOC. The OFCC could require reporting forms that differ from EEO-1's, and could route them through separate channels. That it does not do so is for reasons of convenience of both contractor and agency, rather than as a bureaucratic subterfuge. The JRC is a mere collection house that collects documents for and distributes them to the authorized agencies. To the extent that JRC collects information for OFCC pursuant to Executive Order 11,246, it must be deemed an agent of OFCC, not EEOC.¹⁴

Sears' precise claim was raised, and overruled, in Legal Aid Society of Alameda County v. Shultz, 349 F.Supp. 771, at 775-776 (N.D.Cal.1972). There, plaintiffs sought release of EEO-1's and AAP's from a government agency that opposed disclosure. The court held that disclosure was compelled by the FOIA, despite § 709(e)¹⁵A fortiori, when GSA/OFCC desires to disclose, we hold that § 709(e) does not bar disclosure.¹⁶

We also note that AAP's, which include EEO-1's,¹⁷ are required under 41 C.F.R. § 60-2.1 et seq., and not by the EEOC at all. Hence, regardless of whether § 709(e) is read to bar disclosure of EEO-1's by GSA/OFCC, it cannot bar disclosure of AAP's, which include the data in EEO-1's.

Sears also argues that...