American Federation of Government Employees, Local 2782 v. U.S. Dept. of Commerce, 86-5390

• Decision Date: 13 July 1990
• Docket Number: No. 86-5390,86-5390
• Citation: 907 F.2d 203
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, Edward V. Hanlon, and Ruth A. Sanders Hanlon, Appellants, v. U.S. DEPARTMENT OF COMMERCE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 203

907 F.2d 203

285 U.S.App.D.C. 133

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782 Edward V. Hanlon, and Ruth A. Sanders Hanlon, Appellants, v. U.S. DEPARTMENT OF COMMERCE.

No. 86-5390.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1980.

Decided July 13, 1990.

Edward V. Hanlon, Seabrook, Md., for appellants. Ruth A. Sanders Hanlon, Baltimore, Md., also entered an appearance, for appellants.

Michael J. Ryan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, D.H. GINSBURG, Circuit Judge, and GESELL, District Judge. ^*

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

This appeal arises from an attempt by Local 2782 of the American Federation of Government Employees to obtain access, under the Freedom of Information Act, 5 U.S.C. Sec. 552, to records documenting the promotion practices of the Census Bureau, a unit of the Department of Commerce. The Department denied its request for these documents, and the Union brought suit in district court. When the court had entered summary judgment for the Department, AFGE v. United States Dep't of Commerce, 632 F.Supp. 1272 (D.D.C.1986), the Union decided not to pursue the matter any further, but certain employees of the Census Bureau who are members of Local 2782 intervened for the purpose of taking this appeal.

I. BACKGROUND

The AFGE, and the appellants personally, have filed numerous grievances with the Population Division of the Census Bureau and with the Census Bureau itself, alleging that the Bureau has violated its own Merit Assignment Program by systematically pre-selecting employees to receive promotions for which other employees should have been allowed to compete. The Bureau rejected these grievances, the last of which was filed in December of 1983, because the grievants failed to produce supporting evidence.

In December 1983, the AFGE filed with the Bureau three separate and somewhat overlapping requests for documents, invoking the FOIA, which provides "any person" with an enforceable right of access to all federal "agency records," except to the extent that such records fall within one or more of the nine exemptions listed in the Act. The appellants claim that they must have these documents in order to prove that the alleged pre-selection took place.

In Request 1, the AFGE sought access to "seven black covered notebooks situated directly behind the present desk of Barbara Glass, Administrative Office, Population Division," which it believed to contain official government forms, known as "SF-52s," that the Division uses in order to initiate requests for personnel actions, such as promotions; handwritten indices; and memoranda recommending particular Division employees for promotions to positions that are supposed to be filled competitively. In Request 2, the AFGE sought "all records, notes, and memoranda written between January 1, 1978," and December 2, 1983, recommending a Division employee for promotion. Finally, in Request 3, the AFGE sought

A. Inspection of every chronological office file and correspondence file, internal and external, for every branch office, staff office, assistant division chief office, division chief office, assistant director's office, deputy director's office, and director's office;

B. Inspection of every division or staff administrative office file in the Bureau which records, catalogues, or stores SF-52s or stores promotion recommendation memos, or both; and

C. Inspection of every memo recommending promotion of any employee during FY 82 and FY 83 found or known to any branch chief or higher level supervisor employed at the Bureau.

(Emphases in original.)

The Bureau denied all three requests in their entirety. On appeal, the Department of Commerce upheld the Bureau's decision except with respect to Request 3C, but conditioned inspection of documents responsive to that request upon the Union's payment of a search fee of $3,560. With respect to Requests 1 and 2, the Department relied upon the deliberative process privilege of Exemption 5 to the FOIA, which covers "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"; and upon Exemption 6, which covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. Sec. 552(b)(5), (6). The Department maintained that Requests 3A and 3B did not "reasonably describe[ ]" the documents that the Union was seeking, as required by 5 U.S.C. Sec. 552(a)(3), and that those requests would impose an undue burden upon the Bureau, which would have "to search virtually every file contained in over 356 branch and division offices, up to and including the director's office." (The Department did not invoke Exemption 5 with respect to Request 3B, although it appears to seek access to the same types of documents as do Requests 1 and 2.)

The Union then sued the Department of Commerce in district court, challenging the denials and alleging that the search fee was unreasonable in amount and imposed in bad faith. In its answer to the complaint, the Government rested upon the same grounds that the Department had given in deciding the Union's administrative appeal. In its subsequent motion for summary judgment, however, the Government introduced two additional justifications for its refusal to release the documents described in Requests 1 and 2. It claimed, first, that the handwritten indices contained in the seven notebooks are not "agency records" within the coverage of the FOIA, "having been created by an enterprising employee ... on her own initiative and for her own personal convenience," 632 F.Supp. at 1277; and second, that all the documents described in Requests 1 and 2 are covered by Exemption 2, as matters "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. Sec. 552(b)(2), that is to say, internal agency matters in which the public "could not reasonably be expected to have an interest," see Department of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976). Finally, in its cross-motion for summary judgment, the Union asserted that it is entitled to waiver of the $3,560 search fee because the information will primarily benefit the general public. See 5 U.S.C. Sec. 552(a)(4)(A).

With respect to Requests 1 and 2, the district court granted the Government's motion for summary judgment solely upon the basis of Exemption 5. 632 F.Supp. at 1276. With respect to Request 3, the court granted summary judgment for the Government on the ground that parts A and B would impose too great a burden upon the Bureau to qualify as "reasonably describing" the records requested, and, with regard to part C, that a search fee of $3,560 was reasonable because it represented the estimated cost of a professional employee searching the 356 offices of the Census Bureau for an average of one hour each at an hourly rate of $10. The court rejected the Union's argument for waiver of the fee on the ground that the Union had given insufficient "reason to suppose that the corruption suspected,"--i.e., pre-selection of employees to receive promotions--"will be found." Id. at 1278. Appellants challenge each of these conclusions.

II. ANALYSIS

Liminally. As a threshold matter, appellants argue that the Government may not invoke Exemption 2, nor argue that the handwritten logs described in Request 1 do not constitute "agency records" within the meaning of the FOIA, because it did not rely upon those grounds in its answer to the complaint. (Nor, we have seen, had it done so in the administrative proceedings.) The Government responds broadly that it "is not required to plead its claims [sic] in its answer," citing Berry v. Department of Justice, 612 F.Supp. 45 (D.Ariz.1985) (where Government's answer had asserted only that complaint failed to state claim under FOIA, district court had dismissed case, and court of appeals had reversed, Government may on remand raise exemption defense).

We do not have to resolve this question today, however, for as detailed below, we hold that the documents described in Requests 1 and 2 are exempt from disclosure by reason of the deliberative process privilege found in Exemption 5. For the same reason, we do not find it necessary to address the applicability of Exemption 6, which the agency has asserted from the outset as a ground for denying Requests 1 and 2.

Requests 1 and 2. Exemption 5 authorizes an agency to withhold from disclosure agency records that would not be discoverable "in litigation with the agency," including information within the "deliberative process" privilege of the Executive Branch. See EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). This privilege is intended to protect the ability of government decisionmakers "to engage in that frank exchange of opinions and recommendations necessary to the formulation of policy without being inhibited by fear of later public disclosure." Paisley v. CIA, 712 F.2d 686, 698 (D.C.Cir.1983) (citations omitted), modified on other grounds, 724 F.2d 201 (D.C.Cir.1984). Lest the privilege outstrip its purpose, it applies only to information that is both " 'predecisional'--[that] was generated before the adoption of an agency policy--and ... 'deliberative'--[that] reflects the give-and-take of the consultative process." Coastal States Gas Corp. v. United States Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) (emphasis in original).

The appellants contend that the documents described in Requests 1 and 2 are not within the scope of Exemption 5 because they "would ... be available by law to a party other than an agency engaged in litigation with the...