Com. of Mass. v. US DEPT. OF HEALTH & HUMAN SERV.

• Decision Date: 11 December 1989
• Docket Number: Civ. A. No. 88-0949-Y.
• Citation: 727 F. Supp. 35
• Court: U.S. District Court — District of Massachusetts
• Parties: COMMONWEALTH OF MASSACHUSETTS, by its DEPARTMENT OF PUBLIC WELFARE, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

727 F. Supp. 35

COMMONWEALTH OF MASSACHUSETTS, by its DEPARTMENT OF PUBLIC WELFARE, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. A. No. 88-0949-Y.

United States District Court, D. Massachusetts.

December 11, 1989.

Leah W. Sprague, Eugene B. Benson, Boston, Mass., for plaintiff.

Leila Kern, Asst. U.S. Atty., for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

This action is brought by the Commonwealth of Massachusetts Department of Public Welfare ("the State Agency") under the Freedom of Information Act ("the Act"), 5 U.S.C. sec. 552 (1966), seeking release of five documents in the custody of the United States Department of Health and Human Services ("the Federal Agency"). The facts are not in dispute. The parties' cross-motions for summary judgment are presently before the Court.

By letter dated September 10, 1987, Kristen Bauer, the Assistant General Counsel of the State Agency, requested the release, pursuant to the Act, of various documents regarding the implementation of 45 CFR sec. 205.42(g). This federal agency regulation sets out general guidelines for reducing federal financial participation in the cooperatively funded Aid to Families with Dependent Children program ("AFDC") as well as the provisions under which such reductions might be waived by the Federal Agency's Family Support Administration.¹ Ms. Bauer specifically requested all documents "relating to"² the evaluation of states' so-called "good faith waiver" requests. Russell M. Roberts, Director of the Freedom of Information/Privacy Act Division of the Federal Agency's Office of Public Affairs, withheld certain of these documents, citing 5 U.S.C. sec. 552(b). This provision makes the Act's mandatory disclosure requirements inapplicable to certain "types of information that the Executive Branch must have the option to keep confidential, if it so chooses." Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Acting on Ms. Bauer's appeal, the Family Support Administration withheld five documents pursuant to section 552(b)(2) ("Exemption 2") and section 552(b)(5) ("Exemption 5"). When it became clear that the final decision of the Secretary of Health and Human Services was to withhold these five documents from disclosure, the Commonwealth of Massachusetts brought this action under the Act to compel disclosure.

The Federal Agency has submitted a Vaughn affidavit outlining the contents of the five documents in question, 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), and has also submitted, for in camera inspection, the documents themselves. The Federal Agency argues that some of the material sought here comes within the parameters of Exemption 2, 5 U.S.C. sec. 552(b)(2), and that the other material is exempt from mandatory disclosure under Exemption 5, 5 U.S.C. sec. 552(b)(5).

A. Exemption 2: "Internal Personnel Rules and Practices"

The factual, indeed the legal, parameters of Exemption 2 are not yet clear in this Circuit. Exemption 2 of the Act permits an agency in receipt of a disclosure request to refuse to disclose documents that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. sec. 552(b)(2). The language of this exemption presents a variety of interpretive problems. It is at once both too broad and too narrow. Apart from syntactic ambiguities,³ there is the question of how much stress to lay on the word "solely." Even material that is designed exclusively to deal with internal personnel issues, such as the criteria for evaluating agency employees for promotion, does, in fact, also "relate" to a variety of more general policy issues — such as, for example, the general public interest in ensuring that federal agency employees are the best qualified to shoulder the kind of public responsibilities with which the nation entrusts them. See Kaganove v. Environmental Protection Agency, 856 F.2d 884, 887-88 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 798, 102 L.Ed.2d 789 (1989) (calling such a question a "close issue"). If one were to endorse an expansive reading of the exemption, the conceivable scope of what may "relate" to the "practices of an agency" is limited only by the imagination. Alternatively, as is well-recognized, a reading of Exemption 2 that focuses narrowly on the word "solely" would be unworkable in particular cases, since every action of our federal government has in some way "some effect on the public-at-large ... for `there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact.'" Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1150 D.C.Cir.1975 Leventhal, J., concurring); see also National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 528 (D.C.Cir.1986). Both an overly expansive and an unduly cramped reading render the exemption practically meaningless. Still, Congress plainly intended to permit an agency, in some circumstances, to refuse to comply with a request under the Act pursuant to Exemption 2.

The Supreme Court in Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), identified the government interests in nondisclosure under Exemption 2 as interests (1) in avoiding disclosure where it "may risk circumvention of agency regulation" and (2) in being relieved "of the burden of assembling and maintaining for public inspection matter in which the public cannot reasonably be expected to have an interest." Id. at 369-70, 96 S.Ct. at 1603. The Supreme Court ruled in Rose simply that summaries of Air Force Honor Board hearings were not within the scope of Exemption 2 and must be disclosed, but buttressed its reasoning by pointing out that "the situation is not one where disclosure may risk circumvention of agency regulation." Id. at 369, 96 S.Ct. at 1603. (emphasis added). The comment being merely dicta, Rose does not affirmatively require any showing of either significant risk to the circumvention of agency regulation or the public's legitimate interest in the disclosure of the material in question. The Rose court thus left open whether Exemption 2 might be available to block disclosure in cases where the literal language of the exemption, fairly read, does not cover the material, but release of the information sought might nonetheless lead to a circumvention of agency statutes or regulations. Id. at 364-65, 96 S.Ct. at 1600-01.

The First Circuit has not formulated a test for use in evaluating the applicability of Exemption 2 to material such as is presented in this case.⁴ The Court of Appeals for the District of Columbia Circuit, however, has recognized, in a well-considered en banc decision, both the linguistic problems inherent in the statute and the practical necessity that a workable approach be developed so that the will of Congress be done. See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc). That Court of Appeals has set out a two-part test for Exemption 2 analysis. Id. at 1074. This test requires not only a showing that the material is "predominantly" for internal use, but it also requires some showing that disclosure will prejudice the enforcement of agency regulations or statutes. Under Crooker, disclosure is not mandated by the Act "if a document for which disclosure is sought meets the test of `predominant internality,' and if disclosure significantly risks circumvention of agency regulations or statutes." Id. See also Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983) (material related only to "trivial administrative matters of no genuine public interest" need not be disclosed under Exemption 2). In the absence of more explicit guidance from the First Circuit, this Court follows Crooker and adopts its reasoning in this case.

As indicated, the first prong of the Crooker test recognizes that the "critical considerations ... focus on whether the material is used for predominantly internal purposes...." 670 F.2d at 1073. This approach has much to recommend it since it is both practical and implements the Congressional intent. It is apparent that Congress intended that the Exemption 2 line be drawn "between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest," Rose, 425 U.S. at 365, 96 S.Ct. at 1601. (quoting Vaughn, 523 F.2d at 1142), except where there is the threat that disclosure would lead to the circumvention of agency regulation, Rose, 425 U.S. at 366-67, 96 S.Ct. at 1601-02. The question under the first prong of the Crooker test, then, is whether the material sought relates to predominantly internal agency workings or whether it is instead material in which there is a legitimate public interest in disclosure, although it still might be exempt if disclosure risks the circumvention of law.⁵

The second prong of the Crooker test — whether disclosure in fact "significantly risks circumvention of agency regulations or statutes," 670 F.2d at 1074 — also functions to implement discernible Congressional intent. As the Crooker court discussed, the House and Senate reports varied in their respective treatment of the scope of the Exemption 2 privilege against disclosure where the materials sought might aid in the circumvention of the law. 670 F.2d at 1065. The House report indicates the judgment of the House of Representatives that investigatory techniques used by law enforcement agencies, for instance, were not "the subject of legitimate public interest" because disclosure would undermine the effectiveness of federal law enforcement. See id. at 1059-61. Although the Senate report⁶ is silent concerning this judgment, such silence is no...