Legal Aid Society of Alameda County v. Shultz, C-72-976.
| Decision Date | 19 October 1972 |
| Docket Number | No. C-72-976.,C-72-976. |
| Citation | 349 F. Supp. 771 |
| Court | U.S. District Court — Northern District of California |
| Parties | LEGAL AID SOCIETY of ALAMEDA COUNTY, et al., Plaintiffs, v. George SHULTZ, et al., Defendants. |
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Stephen E. Ronfeldt, Russell W. Galloway, Jr., Stefan M. Rosenzweig, Legal Aid Society of Alameda County, Oakland, Cal., for plaintiffs.
James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants.
This is an action brought pursuant to the Freedom of Information Act, 5 U.S. C. § 552, to force the Department of the Treasury to make available various records relating to the Department's enforcement of Executive Order No. 11246, 3 C.F.R. 339, which mandates that the federal government's economic power as a consumer be affirmatively used to prevent racial discrimination in employment. Specifically, plaintiffs desire that the court order the Department to disclose:
(1) a list of the names of all federal nonconstruction contractors assigned to the Department of the Treasury for compliance purposes under Executive Order No. 11246 that are subject to the requirements of 41 C.F.R. § 60-1.40 () and that have an establishment in Alameda County, California;
(2) all written affirmative action programs currently in effect that have been submitted to the Department by any of the contractors identified in (1);
(3) all EEO-1 reports and any other minority hiring reports containing statistics concerning the ethnic composition of a contractor's work force prepared since November, 1969, that have been submitted to the Department by any of the contractors identified in (1);
(4) all compliance review reports prepared since November, 1969, by compliance officers of the Department of the Treasury that concern any of the contractors identified in (1).
A request for these documents was made in one or another of a series of letters the plaintiffs sent to appropriate Department of the Treasury officials between December, 1971, and February, 1972. The Department refused to provide the information and an appropriate appeal was taken, as this court held in its order denying defendants' motion for summary judgment, August 25, 1972.
The parties have now filed cross-motions for summary judgment, agreeing that there is no dispute as to any material fact.
The various contentions of the parties depend in large part upon how the Freedom of Information Act ought to be interpreted by the courts. The answer to this basic question is clear from the legislative history and purposes of the Act, and from the Act's explicit provisions.
The purpose of the Act is expressed concisely in the Report of the Senate Judiciary Committee:
Knowledge will forever govern ignorance and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.
S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965).
The practices of administrative agencies prior to the passage of the Freedom of Information Act did not comport with this fundamental principle of democratic government.
Under the predecessor of the Freedom of Information Act, the 1946 Administrative Procedure Act, only persons "properly and directly concerned" could obtain access to agency records. Documents could be withheld from even this restricted group "in the public interest," or whenever "good cause for confidentiality" was shown. There was no provision for judicial review of agency refusals to disclose information.
J. Katz, The Games Bureaucrats Play, 48 Texas L.Rev. 1261 (1970). The reports of both the House of Representatives and of the Senate condemn the practices this loosely drafted statute permitted. The House Report notes:
In the time it takes for one generation to grow up and prepare to join the councils of Government — from 1946 to 1966 — the law which was designed to provide public information about Government activities has become the Government's major shield of secrecy.
H.R.Rep.No.1497, 89th Cong., 2d Sess. 13 (1966). The Senate Report adds the important observation that: "Innumerable times it appears that information was withheld only to cover embarrassing mistakes or irregularities . . . ." S. Rep.No.813, supra at 3.
Congress tried to be careful in drafting the Freedom of Information Act to assure that their work would result in genuine change. Its hope was "to eliminate the loopholes which allowed agencies to deny legitimate information to the public and to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep. No.813, supra at 3.
The basic tool employed to reach this goal was § 552(c), which states the premise with which a court must begin in reviewing an agency's refusal to disclose requested information:
This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.
The importance Congress placed upon this provision is explained by the Senate Report:
The purpose of § 552(c) is to make it clear beyond doubt that all materials of the government are to be made available to the public by publication or otherwise unless explicitly allowed to be kept secret by one of the exemptions of subsection (b).
S.Rep.No.813, supra at 10. The intent to make the new rule one of general disclosure is also manifest in the Freedom of Information Act's direction that an agency refusing to disclose shall have the burden of proving that the refusal was proper. § 552(a)(3). Taken together, §§ 552(c) and 552(a)(3) mean that in this case the Department of the Treasury must bear the burden of proving that the records it refused to disclose are specifically included in one of the exceptions of § 552(b).
The Department has attempted to sustain its burden by arguing that the documents plaintiffs requested are within at least one of three exceptions of § 552(b): (3), (4), and (7).
The first of these exceptions, § 552(b)(3), permits the Department to refuse to disclose "matters that are . . . specifically exempted from disclosure by statute." The statute the Department relies upon is Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) — (8)(e):
It shall be unlawful for any officer or employee of the Equal Employment Opportunity Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information.
The Department argues that because of this statute it cannot disclose either the EEO-1 reports or compliance review reports. EEO-1 reports are not submitted directly to the Department, but are sent to the Joint Reporting Committee, which then forwards copies to both the federal compliance agency for Executive Order No. 11246 — in this case, the Department of the Treasury — and to the EEOC. Thus, the Joint Reporting Committee represent both the Department and the EEOC in receiving the information. Because of this, the Department argues, the information it receives is protected from disclosure by § 709(e). Moreover, because the compliance review reports are based primarily on the EEO-1 reports, they, too, are protected from disclosure.
The difficulty with this argument is that a close reading of all of § 709 makes it clear § 709(e) is inapplicable. The only information controlled by § 709(e) is that "obtained by the Commission pursuant to its authority under this section" — i. e., section 709 — and then it is only officers and employees of the EEOC who are forbidden to make disclosures. Section 709(c) is the source of the EEOC's power to require reports; it provides: "Except as provided in subsection (d) of this section, every employer . . . subject to this subchapter shall . . . (3) make such reports . . . as the Commission shall prescribe. . . ." (Emphasis added.) Subsection (d) limits the Commission's power to require reports in certain cases. One of these cases is the present one:
Where an employer is required by . . . any other Executive order prescribing fair employment practices for Government contractors or subcontractors, or by rules or regulations issued thereunder, to file reports relating to his employment practices with any Federal agency or committee, and he is substantially in compliance with such requirements, the Commission shall not require him to file additional reports pursuant to subsection (c) of this section.
The contractors whose EEO-1 reports plaintiffs have requested to see are required to file those reports by Executive Order No. 11246, § 203(a) and 42 C.F.R. § 60-1.7 enacted thereunder. Thus, § 709 does not permit the EEOC to require these contractors to file any reports; the EEOC is merely permitted to see those reports that other agencies require.
It is, therefore, clear that the prohibition of § 709(e) against disclosure is inapplicable; certainly that provision cannot be read to forbid the disclosure by the Department of the Treasury of information the Department requires contractors to reveal under the Executive Order merely because the EEOC is allowed — other than by § 709 — to see that information. Such a disclosure simply is not — even indirectly — the act of an officer or employee of the EEOC making public information obtained under § 709.
In addition to alluding to § 709(e) itself, the Department quotes in its brief a portion of the "General Information" section of the EEO-1 reports. The section quoted is:
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