Carter v. U.S. Dept. of Commerce

• Decision Date: 08 October 2002
• Docket Number: No. 02-35161.,02-35161.
• Citation: 307 F.3d 1084
• Parties: Margaret CARTER and Susan Castillo, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Washington, D.C. 20230, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

307 F.3d 1084

Margaret CARTER and Susan Castillo, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE, Washington, D.C. 20230, Defendant-Appellant.

No. 02-35161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 10, 2002.

Filed October 8, 2002.

Gregory G. Katsas, Deputy Assistant Attorney General, Washington, DC, for the defendant-appellant.

David O. Stewart, Thomas M. Susman, Ropes & Gray, Washington, DC, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CV-01-00868-JAR.

Before GOODWIN, T.G. NELSON, and GRABER, Circuit Judges.

OPINION

GOODWIN, Circuit Judge.

The Department of Commerce ("DOC") appeals the district court's grant of summary judgment ordering it to disclose statistically adjusted data generated as part of Census 2000 in response to plaintiffs' Freedom of Information Act ("FOIA") request. DOC challenges the district court's finding that the adjusted data are neither predecisional nor deliberative as required to permit nondisclosure under the "deliberative process" privilege in Exemption 5 to FOIA. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

It is generally accepted that the decennial census¹ results in a net undercount of the population, particularly with respect to minority and disadvantaged groups. The federal government recognizes that the undercount has significant consequences for affected communities. Thus, the Bureau of Census ("Bureau"), an agency of DOC,² has endeavored to obtain more accurate population estimates for purposes of intra-state redistricting and allocation of federal funds by generating adjusted census figures through statistical extrapolation based on targeted surveys of representative population blocks.³

During Census 1990, the Bureau employed a large-scale statistical adjustment for the first time in a capture-recapture methodology to compensate for the presumed undercount in the unadjusted data.⁴ Compilation of the initial enumeration for the entire population was followed by post-enumeration surveys ("PES") of representative households. The Bureau compared the results of the PES to the unadjusted data in order to determine a rate of error. That rate was then extrapolated to the entire population to adjust the results of the initial census count in an attempt to estimate more accurately population counts at the national, state, and local levels. However, experts differed as to whether the adjusted figures were more reliable than the unadjusted data. The Secretary of Commerce ("Secretary") ultimately decided not to release the adjusted figures as the official data for intra-state redistricting or allocation of federal funds.

For Census 2000, the Bureau further refined the processes used to generate both the unadjusted and adjusted population counts. First, it made intensified efforts to obtain an accurate initial enumeration by involving local governments in the process of building address lists; designing a simplified questionnaire; developing a multi-step mailing strategy; implementing a paid advertising campaign; and restructuring the pay scale for temporary workers. Then, to generate adjusted data, the Bureau employed a capture-recapture sampling methodology called Accuracy and Coverage Evaluation ("ACE"), which was designed to improve on the adjustment process used in Census 1990. ACE involved an intensive survey of 314,000 representative households. Demographers and mathematical statisticians categorized individuals in both the initial enumeration and the ACE sample into 448 groupings, or "post-strata," based on variables such as age, race, gender, and homeowner/renter status. The Bureau then compared the results from the ACE samples to those of the corresponding portions of the initial enumeration to create "coverage correction factors." Applying those factors to the initial enumeration for each post-stratum within each representational block, the Bureau created adjusted block-level estimates. The Bureau then aggregated the block-level data to generate adjusted population estimates at the local, state, and national levels.

Next, the Bureau formed a committee called Executive Steering Committee for Accuracy and Coverage Evaluation Policy ("ESCAP") to evaluate the accuracy of the adjusted data in order to advise the Secretary in deciding which figures to release as the official numbers for intra-state redistricting and allocation of federal funds. ESCAP compared the ACE totals to those produced by the Demographic Analysis ("DA"), an independent measuring tool that looks to records of births, deaths, documented immigration, Medicare enrollment, and estimates of emigration and undocumented immigration. ESCAP initially advised the Secretary to release the unadjusted data for intra-state redistricting because it could not resolve discrepancies between the ACE totals and those produced by the DA, as well as other technical concerns, before the statutorily prescribed deadline to release that data to the states. After reviewing ESCAP's recommendations, the Secretary decided to release only the unadjusted data as the official Census 2000 numbers for intra-state redistricting.

ESCAP initially withheld judgment as to whether the adjusted figures should be used as the official data for allocation of federal funds, and the Bureau continued to consider whether to use the adjusted data for that purpose. But, after further consideration, ESCAP recommended in a second report issued in October 2001 that only the unadjusted data should be released as the official figures for allocation of federal funds and other non-redistricting purposes. The Secretary again reviewed ESCAP's recommendations about the accuracy of the data adjusted using the ACE, and accordingly decided to release only the unadjusted data as the 2000 Census numbers for all official purposes.

Through its website, the Bureau has released ESCAP's reports with recommendations and attachments. That information includes, inter alia, detailed and technical information about the adjusted data, including specifications for the ACE methodology; quality indicators for both the initial enumeration and ACE; equations used to measure error in the initial enumeration and the ACE; the criteria on which the decision to use unadjusted data was based; undercount percentages as measured by the ACE on the national level for each race category, males and females, renters and homeowners, and various age groups; and minutes of the ESCAP meetings. The Bureau has not released any adjusted figures below those aggregated at the national level.

Plaintiffs, two Oregon state legislators, issued a FOIA request to the Bureau for all data adjusted using the ACE for each of the jurisdictions covered by the entire 2000 census. In response, the Bureau invoked the "deliberative process" privilege under Exemption 5 to FOIA and denied their request. Plaintiffs then appealed to DOC's Assistant General Counsel, who upheld the Bureau's decision. They then filed suit against DOC in federal district court seeking declaratory judgment and injunctive relief. Relying on Assembly of California v. United States Department of Commerce ("Assembly"), 968 F.2d 916 (9th Cir.1992), the district court found that the deliberative process privilege did not permit nondisclosure of the adjusted numbers because they were neither predecisional nor deliberative. It, therefore, granted summary judgment for plaintiffs and ordered DOC to release the adjusted data.

II. 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.

III. STANDARD OF REVIEW

Although this case is on appeal from a grant of summary judgment, the standard of review is not simply de novo. See Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1040 (9th Cir.1999); Assembly, 968 F.2d at 919. In a FOIA case, we will overturn the district court's factual findings underlying its decision only for clear error. Fiduccia, 185 F.3d at 1040; Assembly, 968 F.2d at 919. After giving deference to such factual findings, we then review de novo whether a particular FOIA exemption applies. Fiduccia, 185 F.3d at 1040. As in Assembly, this case essentially turns 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." 968 F.2d at 919.

IV. DISCUSSION

A FOIA request similar to the one at issue in this case was made for adjusted data generated as part of Census 1990. See id. at 918-19. DOC advanced the same arguments in Assembly that it presents here. There, we affirmed the district court's finding that the adjusted data from Census 1990 did not fall within the deliberative privilege exception in Exemption 5 because they were neither predecisional nor deliberative. The district court in this case evaluated the purported factual differences surrounding the 1990 and the 2000 adjusted data and determined that any distinctions were not legally significant. We agree.

FOIA requires government agencies to disclose to the public any requested documents. 5 U.S.C. § 552(a); Assembly, 968 F.2d at 920. An agency may avoid disclosure only if it proves that the documents fall within one of nine exceptions. 5 U.S.C. § 552(b)(1)-(9); Assembly, 968 F.2d at 920. Because FOIA's purpose is to encourage disclosure, its exemptions are to be narrowly construed. Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988); Assembly, 968 F.2d at 920. The government bears the burden of proving that a requested document is exempted. 5 U.S.C. § 552(a)(4)(B); Assembly, 968 F.2d at 920.

Exemption 5 permits nondisclosure of "inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency...