Martin v. Office of Special Counsel, Merit Systems Protection Bd.

• Decision Date: 05 June 1987
• Docket Number: No. 86-5385,86-5385
• Citation: 819 F.2d 1181
• Parties: Betty MARTIN v. OFFICE OF SPECIAL COUNSEL, MERIT SYSTEMS PROTECTION BOARD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1181

819 F.2d 1181

260 U.S.App.D.C. 382

Betty MARTIN v. OFFICE OF SPECIAL COUNSEL, MERIT SYSTEMS PROTECTION BOARD, Appellant.

No. 86-5385.

United States Court of Appeals, District of Columbia Circuit.

Argued March 2, 1987.

Decided June 5, 1987.

Alfred Mollin, Attorney, Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellant.

Peter B. Broida for appellee.

Before MIKVA, STARR, and WILLIAMS, Circuit Judges.

Opinion for the court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In this Freedom of Information Act (FOIA) and Privacy Act case, the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) appeals a district court order requiring the release of witness affidavits and an OSC attorney's witness interview notes. These documents came into being as part of an OSC investigation into appellee's allegation that she had been the victim of "prohibited personnel practices" in the course of her work as a civilian employee of the Air Force. OSC argues that Exemptions (b)(5) and (b)(7) of FOIA, 5 U.S.C. Sec. 552(b)(5), (7) (1982), and Exemption (d)(5) of the Privacy Act, 5 U.S.C. Sec. 552a(d)(5) (1982), protect the documents from mandatory disclosure. We find that FOIA's Exemption (b)(5), which protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," and Privacy Act Exemption (d)(5), which embodies a similar protection for documents prepared in anticipation of a "civil action or proceeding," clearly cover these attorney work-product materials, the factual character of these materials notwithstanding. Consequently, we reverse the district court's order.

I. BACKGROUND

The Office of Special Counsel of the Merit Systems Protection Board acts as a civil service "watchdog" office, designed to investigate and prosecute prohibited personnel practices in the federal government. See 5 U.S.C. Sec. 1206(a)(1) (1982). If an OSC investigation reveals that an employee's allegations of such a prohibited practice are well founded, OSC may file a complaint with MSPB asking for disciplinary action against the individual responsible. MSPB may impose any of a number of different penalties, subject to judicial review by the United States Courts of Appeals. 5 U.S.C. Sec. 1207(b), (c) (1982). In this case, the district court ordered MSPB to release documents in an OSC investigative file compiled in response to appellee Martin's allegations that she was the victim of prohibited personnel practices.

Ms. Martin worked for some twenty-two years as a civilian procurement clerk for the Air Force at McDonnell Douglas Aircraft Corporation's St. Louis, Missouri facility. Ms. Martin claims she was harassed verbally by her superiors after she wrote letters to the Secretary of the Air Force, the General Accounting Office, and others that alleged improper use of McDonnell Douglas personnel in certain Air Force activities. She complained of the harassment to OSC in March 1979. On the basis of the complaint, OSC initiated an investigation into these alleged "prohibited personnel practices," 5 U.S.C. Sec. 2302(b)(8) (1982), as required by law. Id. Sec. 1206(a)(1).

Some months later, while the OSC investigation into the harassment allegations was pending, the Air Force discharged Ms. Martin because of an unexplained and unjustified absence from work. On its face, at least, the discharge bore no relationship to Ms. Martin's earlier allegations. Ms. Martin claimed she was too ill to work during her six-week absence, but she was unable or unwilling to offer any medical evidence to support her claim. Ms. Martin filed an appeal of her discharge with MSPB, which rejected it as untimely. Only after MSPB lost appeals in the Court of Claims and the Federal Circuit did it agree to hear Ms. Martin's discharge appeal.

By the time MSPB finally took up Ms. Martin's discharge appeal, OSC had completed its investigation into Ms. Martin's earlier harassment allegations. During the investigation, an OSC attorney had interviewed fifteen of Ms. Martin's co-workers regarding the matter. The attorney took notes on the co-workers' comments, and subsequently asked eleven of them to prepare affidavits on particular factual aspects of the case. The investigating attorney ultimately determined that no prohibited practices had taken place, and OSC declined to file an official complaint with MSPB on Ms. Martin's behalf.

In the proceedings before MSPB appealing her discharge, Ms. Martin turned to the OSC investigation of her harassment allegations for evidence to support her wrongful discharge claim. Using ordinary civil discovery procedure, she asked for all "factual matters" contained in the OSC investigative file. MSPB ordered OSC to release the vast majority of the documents in that file. A small number of documents, including the attorney notes and witness statements, were withheld as "classic examples of attorney work-product." MSPB Opinion and Order at 5, Joint Appendix (JA) 35.

Later, but while MSPB's review of her discharge was still pending, Ms. Martin filed a FOIA/Privacy Act request for all materials compiled by OSC in connection with her allegations. Presumably she aimed to obtain the documents denied her in her discovery motion. Twenty-seven documents remained undisclosed at this time: the final report on the investigation by the OSC attorney in charge, eleven memoranda circulated among OSC staff members regarding the case, eleven signed witness statements, and four documents constituting the investigating attorney's notes on witness interviews. MSPB denied the request, and the denial was upheld on administrative appeal. Ms. Martin filed suit in the district court to compel disclosure. See 5 U.S.C. Sec. 552(a)(4)(B) (1982).

The district court recognized that the attorney's investigative report and the eleven staff memoranda on the case constituted attorney work product, exempt from disclosure under Privacy Act Exemption (d)(5) and FOIA Exemption (b)(5), but ordered the remaining fifteen documents disclosed. The court reasoned that these documents were "purely factual" and thus not protected by Exemptions (d)(5) and (b)(5). Memorandum Order, February 7, 1986, at 5, JA 83. The court reasoned that the eleven witness statements were not attorney work-product because they were "the product of the witness, not of the lawyer." Id. Similarly, the attorney's interview notes merely recorded "in shorthand version the comments of the witnesses," not the impressions of the attorney. Id.

The district court justified this determination in part by reading Exemptions (d)(5) and (b)(5) to incorporate civil discovery privileges only to a ceiling level set by the "deliberative process" discovery privilege available to government agencies. That discovery privilege generally does not protect "purely factual" material. See EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). Asked by OSC to reconsider this aspect of its decision, the district court noted the "logical appeal" of the government's objections, but refused to change its decision. Memorandum and Order, April 9, 1986, at 3, JA 86. OSC now appeals that portion of the ruling that orders disclosure of witness affidavits and attorney interview notes.

II. DISCUSSION

Appellee argues that both the Privacy Act and FOIA mandate disclosure of the documents at issue here. The two acts explicitly state that access to records under each is available without regard to exemptions under the other. See 5 U.S.C. Secs. 552a(q)(1), (q)(2) (1982); Fagot v. FDIC, 584 F.Supp. 1168, 1173 (D.P.R.1984) (holding that a petitioner "is entitled to the cumulative result of what both [FOIA and the Privacy Act] provide"). In order to withhold these documents from Ms. Martin's twin Privacy Act/FOIA request, then, OSC must demonstrate that the documents fall within some exemption under each Act. If a FOIA exemption covers the documents, but a Privacy Act exemption does not, the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be released under FOIA. Because we find that both FOIA Exemption (b)(5) and Privacy Act Exemption (d)(5) properly protect these documents from disclosure, we hold that OSC need not release them under either Act.

A. FOIA Exemption (b)(5)

FOIA Exemption (b)(5) protects from disclosure those "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. Sec. 552(b)(5) (1982). Though the Supreme Court has noted that this language "clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency," Mink, 410 U.S. at 86, 93 S.Ct. at 835, the exact relationship between ordinary civil discovery and Exemption (b)(5), particularly the application of discovery privileges under the exemption, has bedeviled the courts since the Act's inception. Id. The Supreme Court, seeing the need for a broadly sweeping rule on the matter, has insisted that the needs of a particular plaintiff are not relevant to the exemption's applicability, and has held repeatedly that only documents "normally" or "routinely" disclosable in civil discovery fall outside the protection of the exemption. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 & n. 16, 95 S.Ct. 1504, 1515 & n. 16, 44 L.Ed.2d 29 (1975); FTC v. Grolier Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983); United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984). To resolve the present case we must grapple directly with the confusion plaguing the courts' efforts to apply the law of civil...