Assembly of State of Cal. v. U.S. Dept. of Commerce

• Decision Date: 17 September 1992
• Docket Number: No. 92-15217,92-15217
• Citation: 968 F.2d 916
• 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; Assembly Committee on Elections, Reapportionment & Constitutional Amendments of the Assembly of the State of California, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 916

968 F.2d 916

61 USLW 2061

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; Assembly Committee on Elections Reapportionment & Constitutional Amendments of the Assembly of the State of California, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant.

No. 92-15217.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1992.

Decided July 1, 1992.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 17, 1992.

Mark Stern, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Charles C. Marson, Remcho, Johansen & Purcell, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

The Department of Commerce ("DOC") appeals the district court's summary judgment in favor of the Assembly of California ("Assembly") requiring that computer tapes containing statistically adjusted figures from the 1990 census be released to Assembly under the Freedom of Information Act ("FOIA"). DOC argues that the tapes are protected by Exemption 5's deliberative process privilege, which protects documents that are both "predecisional" and "deliberative." We affirm.

FACTS

For many years, statisticians within and without the Census Bureau (an agency of the Department of Commerce) have recognized that the decennial census undercounts the actual number of persons living in the United States, and that the undercounts are most severe among urban minority populations. According to Census Bureau 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%." Statement of Secretary Robert A. Mosbacher on Adjustment of the 1990 Census, 56 Fed.Reg. 33582 (July 22, 1991) ("Statement"). Following The Census Bureau developed a method to adjust for the undercount. Its starting point was the actual enumeration resulting from the 1990 head count (the "unadjusted data"). The Bureau then conducted a Post-Enumeration Survey ("PES"), a sample survey of 170,000 housing units taken after the census. Each person counted in the PES was assigned to one of 1392 statistical categories, known as "post-strata," which grouped together persons of similar characteristics. The information from the PES was then compared to information for those same blocks that was obtained from the official census head count. From this the Bureau developed an adjustment factor which estimated the extent to which a given post-stratum was incorrectly counted in the initial enumeration. By multiplying the number of persons actually counted in each post-stratum in each of the nearly 5,000,000 inhabited blocks in the country by the adjustment factor, an adjusted census was produced. The Bureau prepared computer tapes containing the adjusted census data on the national, state, city and block level for release to the states in the event the Secretary chose to adjust the census.

                the 1980 census, states with large minority populations urged the Census Bureau to make statistical adjustments to correct for the undercount.   Pursuant to a settlement in City of New York v. Department of Commerce, 713 F.Supp. 48 (E.D.N.Y.1989), DOC agreed to undertake a Post-Enumeration Survey (explained below) to determine the extent of the undercount, and to reconsider de novo a 1987 decision not to undertake statistical adjustments of the 1990 census.   The settlement required a decision by July 15, 1991
                

The Secretary appointed a special advisory panel to advise him as to whether to adopt the adjusted census as the official United States census. It split 4-4 on the issue. The Undercount Steering Committee within the Census Bureau voted 7-2 in favor of adjustment, and the Director of the Census, Barbara Bryant, recommended adjustment as well. On July 15, 1991, the Secretary announced his decision not to adopt the adjusted census, stating it had not been proved to be more accurate than the unadjusted census. His rationale was that the adjusted census is less reliable on the local level than it is on the national level, so that in some localities, unadjusted counts are more accurate than adjusted counts. Statement, 56 Fed.Reg. at 33583. Right or wrong, the Secretary's decision is not challenged here.

As part of his July 15 announcement, the Secretary said, "The Department has tried to make the process leading to this decision as open as possible. In that spirit, we will provide the full record of the basis for our decision as soon as it is available." Id. at 33583. The Secretary was true to his word. A detailed report was published in the Federal Register of July 22, 1991. Id. at 33582 et seq. It explained the arguments raised by all of the Secretary's senior advisors, naming them by name. The district court found that the Federal Register report contained "essentially every item of opinion, advice and recommendation that led to the decision." Order re Preliminary Injunction (August 20, 1991) at 15. The Administrative Record of the decision, totalling some 18,000 pages, was also made available, as was the adjusted census data on the national, state and city level. On July 29, 1991, the Secretary honored Assembly's FOIA request for the formulas used to create the adjusted census data, and for "all analyses prepared by or for the Census Bureau or the Department of Commerce analyzing the PES (Post-Enumeration Survey) or its accuracy."

One requested item was not released: a computer tape containing "census population data for California, by block and census tract, broken down by race and age ... after adjustment in accordance with the Post-Enumeration Survey taken by the Bureau of the Census in 1990." Assembly wishes to have access to census figures for use in its redistricting for the California legislature. ¹ When DOC refused the request The case first came before the district court on a motion for preliminary injunction. It ordered that the tapes be released. Order re Preliminary Injunction (August 20, 1991). A divided panel of this court denied DOC's motion to stay the preliminary injunction. No. 91-16266 (August 30, 1991). On September 10, the Supreme Court stayed the injunction pending final disposition. --- U.S. ----, 112 S.Ct. 19, 115 L.Ed.2d 1103 (1991). The case proceeded in district court to cross-motions for summary judgment. In January, prior to the decision, DOC released the checkerboard block data to Congress. The district court granted Assembly's motion for summary judgment and ordered the data released. Order 1992 WL 164141 (February 10, 1992). DOC timely appealed.

                relying on the deliberative process privilege of FOIA's Exemption 5, Assembly filed this action in district court.   Subsequently, DOC released to the House Subcommittee on Census and Population half of all of the adjusted block counts, in checkerboard fashion, for all of the states.   The Subcommittee in turn made the data available to the public. 2  Now all that is at issue is disclosure of the other half of the California checkerboard.
                

JURISDICTION

The district court had jurisdiction under FOIA, 5 U.S.C. § 552(a)(4)(B). We have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

Ordinarily, summary judgments are reviewed de novo. Intel Corp. v. Hartford Accident and Indemnity Co., 952 F.2d 1551, 1556 (9th Cir.1991). However,

[i]n reviewing a district court's judgment under the FOIA, we "must determine whether the district judge had an adequate factual basis for his or her decision" and, if so, we "must determine whether the decision below was clearly erroneous." Church of Scientology v. Department of the Army, 611 F.2d 738, 742 (9th Cir.1979).

National Wildlife Fed'n v. U.S. Forest Service, 861 F.2d 1114, 1116 (9th Cir.1988) (review of summary judgment). See also Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 984 (9th Cir.1985) (on review of summary judgment in a FOIA case, "this court will reverse the district court's findings that a particular document is exempt from mandatory disclosure only if the finding is clearly erroneous").

At first glance this standard seems anomalous. It can best be explained by reflecting upon the task confronting the district court in a FOIA case. It must examine the requested document (usually in camera, to avoid the risk of premature disclosure) to determine whether it falls within any of FOIA's statutory exemptions from disclosure. Because there will rarely be any genuine issues of material fact--the document says whatever it says--the case may usually be decided on summary judgment. Even so, the proceeding might better be described as a trial on a hidden record, where the district court's characterization of the requested document more closely resembles a finding of fact than a conclusion of law. Of course, we grant substantial deference to a district court's fact finding.

Our precedents make abundantly clear that a district court's decision on summary judgment that a given document does or does not fall within one of FOIA's exceptions will not be reversed lightly. Essentially, the present case hinges on whether disclosure of the requested information would reveal anything about the agency's decisional process. This is a fact-based inquiry where deference to the district court's findings is appropriate. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc) (mixed questions of law and fact are not reviewed de novo when "the applicable legal standard provides for a strictly factual test"), cert. denied, 469

U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

FOIA requires...