Kaganove v. E.P.A.

• Decision Date: 01 September 1988
• Docket Number: No. 87-2286,87-2286
• Parties: Arlene S. KAGANOVE, Plaintiff-Appellee, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 884

856 F.2d 884

Arlene S. KAGANOVE, Plaintiff-Appellee, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants-Appellants.

No. 87-2286.

United States Court of Appeals Seventh Circuit.

Argued March 28, 1988.

Decided Sept. 1, 1988.

Marc Richman, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Michael P. Seng, Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, CUDAHY, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The Environmental Protection Agency (EPA) appeals from a judgment of the district court that ordered the EPA, pursuant to the Freedom of Information Act (FOIA), to release a document entitled "Merit Promotion Rating Plan Specifications" (Rating Plan), 664 F.Supp. 352 (N.D.Ill.1987). Arlene Kaganove, the appellee, was an unsuccessful candidate for a promotion to a position as a "Supervisory Environmental Protection Specialist" with the EPA. The Rating Plan is a two-page document created by the EPA for its use when interviewing candidates for the position sought by Ms. Kaganove. After being denied the promotion, Ms. Kaganove sought disclosure of the Rating Plan. For the reasons that follow, we reverse the judgment of the district court.

I Background

A. Facts

The Rating Plan is a document used by EPA evaluators to rank job candidates according to their experience and skills. The first part of the Rating Plan consists of the rating factors. The rating factors are evaluation categories that identify the experience and skills necessary for job performance. Each rating factor is assigned a numerical weight that reflects the importance of that factor to satisfactory job performance. The second part of the Rating Plan is a measuring device to evaluate the applicant's skills within each rating factor. This measuring device consists of four descriptions of experience levels for each rating factor. These descriptions attempt to categorize and distinguish each candidate's skills. Under the Rating Plan, each level of experience is assigned a point value from one to four, which is then multiplied by the rating factor. Applicants with the highest scores then are afforded further consideration.

After being denied the promotion to a Supervisory Environmental Protection Specialist, a GS-13 position, Ms. Kaganove sought release of the Rating Plan. The EPA refused Ms. Kaganove's request. It relied on Exemption 2 of the FOIA. 5 U.S.C. Sec. 552(b)(2). That exemption allows an agency to refuse disclosure of documents that "relate[ ] solely to the internal personnel rules and practices of an agency." Id. The EPA claims that disclosure would provide applicants with detailed knowledge of rating formulas and, consequently, they might exaggerate their credentials. Because much of the information provided by job candidates is unverifiable, or only verifiable at a great cost, the EPA submits that a device such as the ating Plan is the only practicable means of ensuring the accuracy of the claims of employment applicants.

B. District Court Opinion

The EPA and Ms. Kaganove filed cross-motions for summary judgment. In ruling on those motions, the district court first concluded, relying on Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), that the EPA did not have to disclose the Rating Plan if the Plan did not relate to a matter of "genuine and significant public interest." Id. at 369, 96 S.Ct. at 1603. Applying Rose to the facts of this case, the district court concluded that there was a genuine and significant public interest in disclosure of the Rating Plan. Kaganove v. United States Envtl. Protection Agency, 664 F.Supp. 352, 358 (N.D.Ill.1987). The court noted that the EPA is a highly decentralized agency, and that a few years ago the EPA recognized the need to develop EPA personnel with agency-wide experience. The administrator of the EPA noted that the EPA needed to hire and promote qualified employees who had agency-wide experience. To achieve this goal, the administrator introduced a new EPA policy that emphasized a preference to promote people with diverse experiences who could bring an agency-wide perspective to EPA decisionmaking.

The court then examined a sample rating plan for a different EPA position that Ms. Kaganove had offered to the court. According to the court, this sample plan reflected a bias in favor of employees who had experience in a particular department area. This was in direct conflict with the EPA's objective of achieving agency-wide experience. Accordingly, the court concluded that "because of the complexity of the EPA's mission, the recognition by its own director of the need for EPA managers with agency-wide experience and the findings of the NAPA panel, ¹ it is a matter of significant public interest whether the EPA is actively promoting those with agency-wide experience." Id. at 358 (footnote supplied). Thus, the court determined that there was a significant and genuine public interest in the document sought by Ms. Kaganove.

Having concluded that the Rating Plan did involve a matter of genuine public interest, the court proceeded to determine whether the document could nonetheless be protected under the approach announced in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc), and National Treasury Employees Union v. United States Customs Service, 802 F.2d 525 (D.C.Cir.1986) ("NTEU "). In Crooker, the District of Columbia Circuit developed a two-pronged test to be applied in Exemption 2 cases. That test asks (1) whether the document meets a test of predominant internality, and (2) whether disclosure would significantly risk circumvention of agency regulations or statutes. 670 F.2d at 1074. The NTEU court, relying on Crooker, held that an agency is not required to disclose documents when "disclosure ... would quickly render those documents obsolete for the purpose for which they were designed." 802 F.2d at 530. NTEU involved a document virtually identical to the one at issue here. An employee group sought, and was denied, disclosure of a rating system used by the Customs Service. The NTEU court said that disclosure of the rating system would allow potential job applicants to lie about their qualifications in order to obtain the position. Accordingly, the court held that the Customs Service did not need to disclose the rating system.

Here, the district court expressly declined to state whether it agreed with the NTEU decision. 664 F.Supp. at 361 n. 6. Rather, it distinguished NTEU by noting that, in that case, the document at issue was "a road map that enables the interviewing officials to pose questions to an applicant, to explore his background and experience, and to evaluate his qualifications for the job sought." Id. at 361 (quoting NTEU, 802 F.2d at 526). Release "would be tantamount to giving each applicant a list of exam questions." Id. The Customs Service therefore would have to revise the questions for each interview. By contrast, opined the district court, the EPA here faced no such burden:

[T]he EPA rating plan will not become obsolete. At most, the EPA will be forced to utilize a verification process to screen out fraudulent applications. This is because the EPA cannot change the required levels of experience needed for each job because the requirements, unlike questions about an applicant's experience, are not flexible.

Id. Thus, the court believed that NTEU was inapposite and that Exemption 2 of the FOIA did not provide the EPA with a basis for nondisclosure.

II Analysis

The opinion of the district court reflects a careful study of the relevant statutory provisions. However, while we owe its labors our respectful and careful attention, we are presented here with a question of law that we review de novo.

The FOIA establishes a general legislative policy in favor of the disclosure of public documents. The Act contains, however, nine express exemptions that allow nondisclosure. United States Dep't of Justice v. Julian, --- U.S. ----, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988). "Congress created these exemptions because it 'realized that legitimate governmental and private interests could be harmed by release of certain types of information.' " Id. (quoting FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982)). Despite the exemptions, however, "disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 1 (1976). Because of that objective, courts must construe the FOIA's nine exemptions " 'as narrowly as consistent with efficient Government operation.' " Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256, 1257 (7th Cir.1988) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)). In interpreting these exemptions, it is helpful to keep in mind that the legislative and litigation history of the FOIA reveals a deep-seated tension between federal agencies, instinctively protective of the information in their files, and the congressional judgment that access to information ought to be the norm. In this context, the judiciary's responsibility is clear: it must give effect to congressional will.

Exemption 2 of the FOIA permits nondisclosure for documents that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. Sec. 552(b)(2). Under Exemption 2, both parties to this appeal agree that the EPA need not release the Rating Plan if the Plan does not relate to a matter of "genuine and significant public interest." Rose, 425 U.S. 352, 369, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976). ² Whether the Rating Plan relates to such a matter is, in our view, a close question. Ms. Kaganove argues that the EPA has a particularly important role within the federal government and that the EPA's personnel decisions are critical to its success. The record contains evidence that the administrator of the EPA has publicly said...