Assembly of State of Cal. v. DEPT. OF COMMERCE, Civ. S-91-990 WBS/JFM.
| Decision Date | 10 February 1992 |
| Docket Number | No. Civ. S-91-990 WBS/JFM.,Civ. S-91-990 WBS/JFM. |
| Citation | 797 F. Supp. 1554 |
| Court | U.S. District Court — Eastern District of California |
| Parties | ASSEMBLY OF the STATE OF CALIFORNIA; Honorable Willie L. Brown, Jr., Speaker of the Assembly of the State of California; Honorable Peter R. Chacon, Chairman, Assembly Committee on Elections, Reapportionment & Constitutional Amendments of the Assembly of the State of California, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. |
Charles C. Marson, Barbara A. Brenner, Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, Cal., for plaintiffs.
Elizabeth Pugh, John R. Niemeyer, Stuard M. Gerson, U.S. Dept. of Justice, Washington, D.C., Yoshinori H.T. Himel, Joyce Vermeersch, Asst. U.S. Attys., Sacramento, Cal., for defendant.
This is an action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 to enjoin the United States Department of Commerce from withholding certain census data and for declaratory relief. The matter is before the court on cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Federal Jurisdiction is predicated on 5 U.S.C. § 552(a)(4)(B). The sole issue for consideration is whether the defendant properly relied upon Exemption 5 of the FOIA in withholding computer tapes containing block level adjusted census data for the State of California ("the requested tapes"). Because the court concludes as a matter of law that defendant has not sustained its burden of proving that the tapes were exempt from disclosure, plaintiffs' motion for summary judgment is granted and defendant's is denied.
To place this controversy in some context, it is necessary to provide background for the adjustment dispute. The numerical data contained on the requested tapes is derived from a Post-Enumeration Survey ("PES") conducted by the Bureau of Census in connection with the 1990 census. In simple terms, the PES had four distinct phases. See Decl. of Mark Plant in Opposition to Plaintiff's Motion for Preliminary Injunction at 6-8; see also Decision of the Secretary of Commerce on Whether a Statistical Adjustment of the 1990 Census of Population and Housing Should be Made for Coverage Deficiencies Resulting an Overcount or Undercount of the Population, 56 Fed.Reg. 33582 (1991). The first phase was the actual enumeration, or traditional count of the population. See Plant at ¶ 6. According to the Secretary of the Department of Commerce the official census counted about 98% of all people living in the United States. See Decision, 56 Fed.Reg. at 33582. However, census participation and coverage was lower than average among certain segments of the population. Id. Based on the Department's estimates, "Blacks appear to have been undercounted in the 1990 census by 4.8%, Hispanics by 5.2%, Asian Pacific Islanders by 3.1%, and American Indians by 5.0%, while non-Blacks appear to have been undercounted by 1.7%." Id. Defendant has provided to plaintiffs the computer tape containing the block level unadjusted census count pursuant to Public Law 94-171. See Supplemental Declaration of Mark W. Plant at ¶ 7; see also Declaration of William Lester Cavala in Support of Motion for Preliminary Injunction, at ¶ 7.
The second phase was the PES, which was a sample survey of approximately 170,000 housing units taken after the census and then compared to the census in an attempt to measure coverage error or net undercount or overcount. Plant Supp.Decl. at ¶ 7. Each person in the PES sample was assigned to one of 1392 statistical categories, known as post-strata. These post-strata categories attempt to group together persons of similar characteristics. Id. An undercount rate was estimated for each of the 1392 post-strata. Id.
The information gathered from the PES sample blocks was then compared with information for those same blocks that was obtained during the actual headcount. By comparing the number of representatives of each post-stratum found by the PES to the number of representatives of each post-stratum found by the headcount, the Bureau developed an adjustment factor which reflected the extent to which the PES suggested that a post-stratum was incorrectly counted in the official enumeration. The Bureau then attempted to calculate the effect of the postulated errors on the entire population by multiplying the number of people in each post-stratum found in a particular block by the appropriate adjustment factor for each post-strata represented in the block. This process was completed for each of the almost 5,000,000 inhabited blocks in the United States. Supp. Plant Decl. ¶ 7-9; Plant Decl. 6-8; Defendant's brief at 4-5.
The third phase of the adjustment decision process determined the adequacy of the PES as an evaluation and adjustment tool. See Plant Decl. at ¶ 8. Department officials undertook a large-scale, intensive evaluation of the accuracy of the adjusted estimates involving dozens of statisticians, demographers and other experts both within and outside the Department of Commerce. Experts differed on whether adjusted census figures were more reliable than the actual census figures. See Exhibit C to Brenner Prelim. Inj. Decl. Evaluative studies indicate that one-third of the over five million persons who would be added to the count are a result of biases in the undercount measurement instrument, not a result of persons being missed in the census. See Plant Supp.Decl. at ¶ 15.
The final step in the process was a decision on the adjustment question by the Secretary based on published guidelines. See Decision, 56 Fed.Reg. at 33582. On July 15, 1991, he announced his decision that the census should not be changed by statistical adjustment. Id. In reaching his decision, the Secretary determined that the adjusted estimates did not accurately distribute the U.S. population across and within the states. See Plant Supp.Decl. at 13. He concluded that the adjusted figures were not usable for all purposes for which the census data are published, and that release of the adjusted counts would be confusing and disruptive to the orderly transfer of political representation in the United States. Id. Nevertheless, he indicated the Department would "provide the full record of the basis for our decision as soon as it is available." See Decision, 56 Fed.Reg. at 33583. Evidently, defendant has recently agreed to provide Congress with 50% of the adjusted census data of the states. See Plaintiffs' Request For Judicial Notice Exhibit B & C.
The requested tapes containing the adjusted census data derived from this process exist on computer tapes physically located at the Bureau of Census and within the control of the defendant. Decl. of J. Patrick Heelen, Attachment B, ¶ 5. The defendant created the tapes anticipating that the Secretary may have elected to use the adjusted figures as the official census figures. See Plant Decl. at ¶ 11. As of the date of the Secretary's decision not to adjust the Census, the Bureau of Census had prepared for distribution computer tapes for all 50 states containing the adjusted census figures. See Exhibit A of Brenner Decl.. Based on an in camera inspection of a representative sample of the requested tapes, the court has determined that the tapes provide a list of numbers based on the adjusted census data, broken down by race, associated with census blocks identical in form and similar in content to the official census data previously released to California. See also 13 U.S.C. § 141(c); Decl. of Bailar at ¶ 7.
Plaintiffs have made a FOIA request of defendant for the tapes, the agency denied the request invoking Exemption 5, and the administrative process is complete. See Joint Status Statement at 2.
Plaintiffs filed a complaint and application for preliminary injunction on July 25, 1991 seeking an order compelling the production of agency records consisting of the official census tabulation of the population of California as adjusted in accordance with the Post-Enumeration, and related records. Defendant opposed the application and moved to stay the proceedings on August 19, 1991.
The court heard argument on plaintiffs' motion for preliminary injunction and defendant's motion to stay on August 20, 1991. At the conclusion of argument the court denied defendant's motion to stay the proceedings and granted a preliminary injunction ordering disclosure of the requested tape by the close of business on August 21, 1991. At the same time the court denied defendant's motion for stay pending appeal. The defendant filed a notice of appeal from the court's order on August 21, 1991.
On August 21, 1991, the Ninth Circuit Court of Appeals issued a temporary stay of the court's order. Subsequently, on August 30, 1991, a two-judge majority of the court ruled the appellant had failed to show the balance of hardships tipped in its favor; that respondent had made the opposite showing; and that appellant "has also failed to show a probability of success on the merits of the appeal." See Attachment E to Defendant's Motion for Summary Judgment. Circuit Judge T.G. Nelson dissented from the order based in part on a declaration submitted by defendant in the appellate court suggesting that "the deliberative process may have included adjusted block calculations ..." and based in part on the view that the requested tape "is the product of the deliberative process, which was rejected by the Secretary." Id. The order of that court left the temporary stay in place until September 3, 1991, at 2:00 p.m. PDST.
The parties represent that on August 31, 1991, the defendant filed an emergency application in the United States Supreme Court with Circuit Justice O'Connor for a stay of this court's order pending appeal. Subsequently, Justice O'Connor granted a temporary stay to permit the parties to file papers...
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