Army Times Pub. Co. v. Department of Air Force

• Decision Date: 06 August 1993
• Docket Number: No. 91-5395,91-5395
• Citation: 998 F.2d 1067
• Parties: The ARMY TIMES PUBLISHING COMPANY, Appellant, v. DEPARTMENT OF the AIR FORCE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1067

998 F.2d 1067

302 U.S.App.D.C. 432

The ARMY TIMES PUBLISHING COMPANY, Appellant, v. DEPARTMENT OF the AIR FORCE, Appellee.

No. 91-5395.

United States Court of Appeals, District of Columbia Circuit.

Argued April 27, 1993.

Decided Aug. 6, 1993.

Martin Wald, Washington, DC, argued the cause, for appellant. With him on the brief was Michael S. Horne, Washington, DC.

Marina Utgoff Braswell, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before: MIKVA, Chief Judge, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Appellant submitted a Freedom of Information Act (FOIA) request for the results of telephone polls conducted by outside pollsters hired by the Air Force. See 5 U.S.C. § 552. Although the Air Force had released some of the poll results on its own initiative, the Air Force refused to turn over the vast majority of the information requested by appellant, claiming that release of the material would threaten its "deliberative process." The district court agreed with the Air Force and held that the Air Force was entitled to withhold all of the surveys pursuant to Exemption 5 of FOIA. 5 U.S.C. § 552(b)(5).

Despite appellant's specific request, the district court failed to enter a finding of segregability. This error warrants a remand. See PHE, Inc. v. Dept. of Justice, 983 F.2d 248, 252 (D.C.Cir.1993). The poll results released voluntarily by the Air Force contain purely factual information which could not threaten the Air Force's deliberative process in any way. Yet the affidavits submitted by the Air Force in support of its refusal to disclose do not even hint that the poll results withheld are different from those released in any relevant respect. While the Air Force has not "waived" its right to claim an exemption from disclosure simply because it has released information similar to that requested, Abbotts v. NRC, 766 F.2d 604, 607 (D.C.Cir.1985), the fact that some of the information in the surveys is completely harmless suggests that other information in the surveys also might be released without threatening the Air Force's deliberative process. The Air Force has the burden of demonstrating that no reasonably segregable information exists within the documents withheld. PHE, Inc., 983 F.2d at 252. That burden has not been met here. We therefore reverse the district court's decision and remand for an express finding of segregability.

I.

Appellant is the Army Times Publishing Company, publisher of several periodicals, including Air Force Times. Air Force Times is a weekly publication that contains news stories, features and opinions of interest to present and former members of the Air Force. In 1983, Air Force Times submitted a FOIA request for the results of surveys conducted by the Air Force through the "Computer Assisted Telephone Interview Program" ("CATI"). Under this program, the Air Force retained a civilian market research firm to conduct a series of telephone polls of randomly selected groups of approximately 400 to 1,600 officers and enlisted personnel. Each survey respondent was asked a series of questions about working conditions within the Air Force, such as pay, bonuses, training and commissaries, and the results were tabulated.

The Air Force has released some CATI survey results voluntarily. For example, on August 7, 1990, the Air Force issued a news release reporting that ninety percent of survey respondents believe that "Air Force Commissaries are heading in the right direction," particularly with respect to "low prices," "quality produce" and "cleanliness." News Release # 69-70, United States Air Force, August 7, 1990. The news release also reported the answers to other survey questions, including how much money respondents spent at the base commissary, how often and on what days they shopped there, and how satisfied they were with the commissary compared to civilian alternatives.

In its FOIA request, Air Force Times sought the disclosure of all the CATI survey results that had not been released voluntarily by the Air Force. At the urging of the Air Force, Air Force Times narrowed its FOIA request to eight specific topics such as pay, training and evaluation. The Air Force identified six thousand pages responsive to the request, but released only seven pages. The Air Force asserted that the remaining material was exempt from disclosure pursuant to Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). After exhausting its administrative appeal, the Army Times Publishing Company brought this action in district court to compel disclosure of the survey results. For the sake of clarity, we will refer to appellant by the name of the FOIA requester, Air Force Times.

The Air Force submitted a Vaughn index to the district court purporting to describe the withheld material and justify its refusal to disclose. See generally, Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In its motion for summary judgment, the Air Force argued that the randomly selected survey respondents were participants in the deliberative process of agency policymaking, and therefore their "opinions and recommendations," even when tabulated in aggregate form, were exempt from disclosure under Exemption 5. The Air Force based its claims on two affidavits by Judy K. Roomsburg, a "Behavioral Analyst" involved in the CATI programs.

The district court granted summary judgment for the Air Force. The court determined that the surveys were integral to the policymaking process within the Air Force, and that the survey respondents would be less likely to express their candid opinions if they were not assured that the aggregate poll results would be kept confidential. Although the Air Force Times specifically requested the court to determine whether there was at least some non-exempt material in the surveys, similar to that already released, that was segregable, the district court declined to make the requested segregability finding and sustained the Air Force's blanket claim of exemption.

II.

Exemption 5 of FOIA states that an agency is not obligated to disclose "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. § 552(b)(5). Congress enacted this exemption largely to ensure that agencies "not lose the protection traditionally afforded through the evidentiary privileges simply because of the passage of FOIA." Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). The "deliberative process" privilege is central among the privileges protected by Exemption 5. However, as with all exemptions under FOIA, the deliberative process privilege must be construed as narrowly as is consistent with efficient government operation. Wolfe v. HHS, 839 F.2d 768, 773 (D.C.Cir.1988) (en banc ). "Disclosure, not secrecy, is the dominant objective" of FOIA's statutory scheme. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976).

In order for a document to be protected by the deliberative process privilege, it must be predecisional and deliberative, reflecting the advisory and consultative process by which decisions and policies are formulated. Wolfe, 839 F.2d at 774. Exemption 5 "rests most fundamentally on the belief that were agencies forced to 'operate in a fishbowl,' the frank exchange of ideas and opinions would cease and the quality of administrative decisions would necessarily suffer." Dudman Communications Corp. v. Dept. of the Air Force, 815 F.2d 1565, 1567 (D.C.Cir.1987) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)).

The predecisional character of the material at issue here is not in dispute. Both sides acknowledge that the surveys were initiated to help the Air Force develop appropriate policies and determine how best to implement them. The propriety of the application of Exemption 5 thus turns on whether the withheld documents were correctly characterized by the Air Force and the district court as deliberative.

The Air Force Times emphasizes that it does not seek to learn the identity of any survey respondent or the responses of any particular individual. Rather, its request is only for the aggregate results of the surveys, including what number and percentage of respondents gave each answer and the methodological information necessary to interpret the results. The Air Force Times argues that this type of aggregate statistical information is "not so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States, 617 F.2d at 866.

In addition, the Air Force Times argues that the decision by the Air Force to release selected poll results from similar surveys is fundamentally inconsistent with its current claim that release of the poll results would threaten the decisionmaking process of the agency. In the Air Force Times' view, the Air Force basically asserts a right to release those surveys that reflect favorably on the Air Force, and withhold those that are not so favorable, without regard...