Hopkins v. U.S. Dept. of Housing and Urban Development

• Decision Date: 01 April 1991
• Docket Number: D,No. 967,967
• Citation: 929 F.2d 81
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 30 Wage & Hour Cas. (BN 379, 118 Lab.Cas. P 35,478, 37 Cont.Cas.Fed. (CCH) 76,077 Thomas G. HOPKINS, as President of Local 17 of the International Union of Operating Engineers, an Unincorporated Association, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; United States of America, Defendants-Appellees. ocket 90-6269.

Page 81

929 F.2d 81

30 Wage & Hour Cas. (BN 379, 118 Lab.Cas. P 35,478,

37 Cont.Cas.Fed. (CCH) 76,077

Thomas G. HOPKINS, as President of Local 17 of the

International Union of Operating Engineers, an Unincorporated Association, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT;

United States of America, Defendants-Appellees.

No. 967, Docket 90-6269.

United States Court of Appeals, Second Circuit.

Argued Jan. 15, 1991.

Decided April 1, 1991.

John A. Collins, Buffalo (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for plaintiff-appellant.

John F. Daly, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Leonard Schaitman, U.S. Dept. of Justice, Washington, D.C., Dennis C. Vacco, U.S. Atty. W.D.N.Y., Kathleen M. Mehltretter, Buffalo, of counsel), for defendants-appellees.

Before OAKES, Chief Judge, and MINER and WALKER, Circuit Judges.

OAKES, Chief Judge:

The Freedom of Information Act, 5 U.S.C. Sec. 552 (the "FOIA"), was enacted in 1966 to create a broad right of access to official information. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73, 109 S.Ct. 1468, 1481-82, 103 L.Ed.2d 774 (1989). The general philosophy of the FOIA is " 'full agency disclosure unless information is exempted under clearly delineated statutory language.' " Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)). This appeal explores the murky limits of three of the FOIA's "clearly delineated" exemptions.

BACKGROUND

Local 17 of the International Union of Operating Engineers (the "Union") is engaged in government construction projects. By letters dated October 18, 1989 and January 25, 1990, the Union requested the Buffalo office of the United States Department of Housing and Urban Development ("HUD") to provide access to certain records pursuant to the FOIA. The requested records related to a HUD-assisted public housing project in Dunkirk, New York, and included (1) HUD inspector reports concerning the general contractor of the Dunkirk project and all of its subcontractors (collectively, the "contractors"), and (2) the contractors' certified payroll records. The inspector reports are prepared by HUD officials, who are required by law to monitor the progress of all HUD-sponsored construction projects. The payroll records are prepared by the contractors and filed weekly with the local housing authority in charge of the Dunkirk project. HUD receives and maintains copies of these records for use in monitoring and enforcing the prevailing wage provisions of the Davis-Bacon Act, 40 U.S.C. Sec. 276a et seq.

In response to the Union's FOIA requests, HUD released various documents relating to the Dunkirk project. HUD withheld its inspector reports, however, citing 24 C.F.R. Sec. 15.21(a)(5), HUD's regulatory counterpart to the FOIA's exemption for predecisional, deliberative memoranda, 5 U.S.C. Sec. 552(b)(5) ("Exemption 5"). In addition, although HUD released the certified payroll records, it first deleted all employee names, addresses, and social security numbers, citing the FOIA's principal privacy exemption, 5 U.S.C. Sec. 552(b)(6) ("Exemption 6"). ¹

Following HUD's refusals to disclose the inspector reports and unredacted payroll records, the Union filed two administrative appeals, arguing that Exemption 5 was inapplicable to the inspector reports, and that denial of the names and addresses in the payroll records was not warranted under Having exhausted all administrative remedies, Thomas G. Hopkins, as President of the Union, commenced this action under 5 U.S.C. Sec. 552(a)(4)(B) in the United States District Court for the Western District of New York, seeking disclosure of the withheld information. Both parties moved for summary judgment. Upon consideration of the opposing affidavits and declarations, and after hearing oral argument, the district court, John T. Curtin, Judge, granted appellees' motion for summary judgment and dismissed the complaint. In reaching this conclusion, the court found that the inspector reports were properly withheld under Exemption 5, and that the Union's attempt to use the FOIA to obtain individualized employee information from the payroll records was "impermissible" under 5 U.S.C. Sec. 552(b)(7)(C) ("Exemption 7(C)"), which creates a broad privacy exemption for documents "compiled for law enforcement purposes." The court did not pass on whether the payroll records could also have been withheld under Exemption 6, as HUD had maintained.

                Exemption 6. 2   HUD failed to respond to either of the Union's appeals
                

Hopkins now appeals, seeking reversal as to both the HUD inspector reports and the certified payroll records. For the reasons set forth below, we vacate the district court's judgment with regard to the inspector reports, and remand for a determination whether those reports contain reasonably segregable non-exempt information. With regard to the payroll records, however, we affirm.

DISCUSSION

An agency's decision to withhold records requested under the FOIA is subject to de novo judicial review. See 5 U.S.C. Sec. 552(a)(4)(B) (1988). In any such review, "the burden is on the agency to sustain its action." Id.

A. HUD Inspector Reports.

FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. Sec. 552(b)(5) (1988). By this language, Congress intended to incorporate into the FOIA all the normal civil discovery privileges. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975). One privilege that Congress specifically had in mind was the "deliberative process" or "executive" privilege, which protects the decisionmaking processes of the executive branch in order to safeguard the quality and integrity of governmental decisions. Sears, Roebuck & Co., 421 U.S. at 150, 95 S.Ct. at 1516; Local 3, IBEW v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988). As Congress recognized in enacting the FOIA, " 'efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to "operate in a fishbowl." ' " EPA v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)).

There are two requirements for invocation of the deliberative process privilege. First, the document must be "predecisional," that is, "prepared in order to assist an agency decisionmaker in arriving at his decision." Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975). Second, the document must be "deliberative," that is, "actually ... related to the process by which policies are formulated." Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C.Cir.1978) (en banc). Thus, the privilege "focus[es] on documents 'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " Sears, Roebuck & Co., 421 U.S. at 150, 95 S.Ct. at 1516 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966)). The privilege does not, as a general matter, extend to purely factual material. See Local 3, IBEW, 845 F.2d at 1180.

Applying these principles to the case at hand, we agree with the district court that the HUD inspector reports are protected by the deliberative process privilege. First, because HUD inspectors themselves lack any authority to take final agency action, their reports are necessarily predecisional. In addition, as HUD's uncontroverted declarations relate, the reports contain HUD staff inspectors' professional opinions on the progress and quality of construction work, and recommendations to higher officials that various agency actions should be taken. Because these opinions and recommendations enable HUD to manage its projects and negotiate with its contractors effectively, they are related to the deliberative process by which HUD policies are formulated.

The fact that the reports constitute part of the deliberative process does not end our inquiry, however. Under 5 U.S.C. Sec. 552(b), "[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt." HUD has admitted that its inspector reports contain some purely factual observations that are not, in and of themselves, privileged. The question remains, then, whether these factual observations are "inextricably intertwined" with the privileged opinions and recommendations such that disclosure would "compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5," Mink, 410 U.S. at 92, 93 S.Ct. at 838; Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 85 (2d Cir.1979), or whether they are "reasonably segregable" from the opinions and recommendations and therefore subject to disclosure.

Under 5 U.S.C. Sec. 552(a)(4)(B), the agency has the burden of establishing the necessity of keeping its records' factual observations undisclosed. See Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 830 (D.C.Cir.1979); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973) (requiring agency to supply detailed index that, among other things, separates disclosable from exempt material), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Compare Lead Indus., 610 F.2d at 88 (agency affidavits and Vaughn indices sufficient to support exemption) with Reader's Digest Ass'n, Inc. v. FBI, 524 F.Supp. 591, 594-95 (S.D.N.Y.1981) (agency affidavits falling short of...