Elliott v. U.S. Dept. of Agriculture

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: Tatel
• Citation: Elliott v. U.S. Dept. of Agriculture, 596 F.3d 842 (D.C. Cir. 2010)
• Decision Date: 26 February 2010
• Docket Number: No. 07-5385.,07-5385.
• Parties: Damon ELLIOTT, Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee.

596 F.3d 842

Damon ELLIOTT, Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee.

No. 07-5385.

United States Court of Appeals, District of Columbia Circuit.

Argued November 6, 2009.

Decided February 26, 2010.

Anand V. Ramana, appointed by the court, argued the cause and filed the briefs as amicus curiae in support of appellant.

Damon Elliott, pro se, filed briefs for appellant.

Andrea McBarnette, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: TATEL, GARLAND, and KAVANAUGH, Circuit Judges.

TATEL, Circuit Judge:

Appellant brought suit under the Freedom of Information Act (FOIA) to compel the United States Department of Agriculture to disclose blueprints to buildings located on an agricultural research campus. Concluding that the requested blueprints fall within FOIA Exemption 2, which exempts from disclosure matters "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2), the district court granted summary judgment for the government. For the reasons set forth in this opinion, we affirm.

I.

Appellant Damon Elliott submitted FOIA requests seeking architectural blueprints for all buildings on the campus of the United States Department of Agriculture's (USDA's) Beltsville Agricultural Research Center (BARC). Elliott apparently seeks the blueprints in order to prove that Building 22, a residential building on the BARC campus, is nonfederal property. After conducting a search for responsive documents, the agency informed Elliott that although it maintains blueprints for 375 BARC buildings, it has none for Building 22. The agency refused to disclose any blueprints, however, asserting that FOIA Exemption 2 "protects sensitive critical infrastructure information related to security and safety." Letter from Stasia A.M. Hutchison, FOIA Coordinator, USDA, to Damon Elliott (Dec. 29, 2005).

After exhausting his administrative remedies, Elliott brought suit in the U.S. District Court for the District of Columbia to compel disclosure of all blueprints responsive to his FOIA requests. See 5 U.S.C. § 552. Seeking summary judgment, the government argued that the blueprints fell within FOIA Exemption 2 because their disclosure would compromise the security of BARC's critical infrastructure and research programs.

The district court granted the government's motion in part, finding that although the agency had performed an adequate search for responsive documents, it had failed to sufficiently justify withholding the blueprints under Exemption 2. Elliott v. U.S. Dep't of Agric., No. 06-240, 2007 WL 1302588, at *4 (D.D.C. May 2, 2007). Following a renewed motion for summary judgment and additional filings by both parties, the court then concluded that the blueprints were exempt from disclosure because they are "used for predominantly internal purposes and their disclosure may risk circumvention of federal policies, statutes, or regulations." Elliott v. U.S. Dep't of Agric., 518 F.Supp.2d 217, 221 (D.D.C.2007). In addition, the district court held that no reasonably segregable portion of the blueprints could be disclosed without posing a security risk. Id. Elliott appealed, and we appointed amicus curiae to present arguments on his behalf.

II.

"[D]isclosure, not secrecy, is [FOIA's] dominant objective." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Consistent with this purpose, agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions. See 5 U.S.C. § 552(b). These exemptions are "explicitly exclusive," U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (internal quotation marks omitted), and the agency bears the burden of showing that withheld material falls within the asserted exemption, 5 U.S.C. § 552(a)(4)(B).

This case concerns the scope of Exemption 2, which covers matters "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The courts have devoted thousands of pages of the Federal Reporter to the explication of these twelve words, cutting out some and pasting in others. As a result, like the Ship of Theseus, little of Congress's original language remains. We think it useful to briefly review how we got to this point.

For fifteen years after FOIA's enactment, see Pub.L. No. 89-487, 80 Stat. 250 (1966), considerable confusion surrounded the scope of Exemption 2. This uncertainty stemmed from the seemingly contradictory interpretations of the exemption expressed in the House and Senate Reports. The Senate Report stated that Exemption 2 "relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like." S.Rep. No. 89-813, at 8 (1965). Taking a different view, the House Report described the exemption as encompassing "[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners." H.R. Rep. No. 89-1497, at 10 (1966). Even given these differences, however, the House and Senate committees both saw Exemption 2 as narrowing the public disclosure exemption under former section 3 of the Administrative Procedure Act (APA), which protected from disclosure "any matter relating solely to the internal management of an agency." Rose, 425 U.S. at 362, 96 S.Ct. 1592 (citing Congress's dissatisfaction with the broad sweep of the APA's exemption, 5 U.S.C. § 1002 (1964 ed.)).

Confronting the dueling House and Senate Reports for the first time in Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court declined to pick sides. On the one hand, the Court accepted the Senate's interpretation of Exemption 2 as covering minor employment-related matters in which the public lacked a significant interest. Id. at 369-70, 96 S.Ct. 1592. On the other hand, the Court acknowledged, but did not decide, that the exemption might protect the more important materials contemplated by the House Report "where necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of ... procedural manuals and guidelines used by the agency." Id. at 364, 96 S.Ct. 1592.

With the question thus left open by the Supreme Court, and facing what we believed to be mutually exclusive views of Exemption 2, we initially adopted the Senate Report as the authoritative expression of Congress's intent. In Jordan v. United States Department of Justice, 591 F.2d 753, 763 (D.C.Cir.1978) (en banc), we stated that "personnel" refers only to "matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc." Applying this construction, we ordered the release of prosecutorial guidelines used by U.S. Attorneys on the ground that, as envisioned by the Senate Report, the guidelines fell outside Exemption 2's scope. Id.

Three years later and sitting en banc, we reversed course and expressly repudiated Jordan's "limited" interpretation of Exemption 2 in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981). There, the FOIA requester sought a copy of a Bureau of Alcohol, Tobacco & Firearms (ATF) manual used to train new agents in surveillance techniques. Picking up where the Supreme Court left off in Rose, we held that Exemption 2 protects nontrivial matters "where disclosure might risk circumvention of the law." Id. at 1066. Accordingly, "the words `personnel rules and practices' encompass not merely minor employment matters," as we held in Jordan, "but may cover other rules and practices governing agency personnel, including significant matters like job training for law enforcement personnel." Id. at 1056.

Despite Exemption 2's reference to documents related "solely" to internal rules and practices, we further explained in Crooker that the exemption covers documents that are "predominantly" internal. Id. at 1056-57. This modification stemmed from our recognition that, if interpreted literally, the term "`relating' is potentially all-encompassing while `solely' is potentially all-excluding." Id. at 1056 (quoting Vaughn v. Rosen, 523 F.2d 1136 1150 (D.C.Cir.1975) (Leventhal, J., concurring)) (internal quotation marks omitted). Thus, despite the fact that the withheld portions of the ATF manual had some effect on the public at large, we held that the manual fell squarely within Exemption 2 because it was used "for predominantly internal purposes," it was "designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques," and its "disclosure would risk circumvention of agency regulations." Id. at 1073.

Crooker thus resolves the apparent conflict between the House and Senate Reports by explaining that Exemption 2 is actually two exemptions wrapped in one. The so-called low 2 exemption, tracking the Senate Report, covers predominantly internal documents that deal with "trivial administrative matters of no genuine public interest." Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (internal quotation marks omitted). The "high 2" exemption, following the House Report, applies to "[p]redominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations." Id.

Since Crooker, we have articulated the requirements of the high 2 exemption—the one at issue in this case—in terms of a two-step inquiry. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1124 (D.C.Cir.2007). First, the information withheld must fall within the exemption's language. Schwaner v. Dep't of the Air Force, 898 F.2d 793, 794 (D.C.Cir. 1990) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir....