Met. Life Ins. Co. v. Usery, Civ. A. No. 76-0914

• Decision Date: 06 December 1976
• Docket Number: Civ. A. No. 76-0914,76-0087.
• Citation: 426 F. Supp. 150
• Parties: METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff, v. W. J. USERY et al., Defendants. NATIONAL ORGANIZATION FOR WOMEN, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION et al., Defendants.
• Court: U.S. District Court — District of Columbia

426 F. Supp. 150

METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff, v. W. J. USERY et al., Defendants.

NATIONAL ORGANIZATION FOR WOMEN, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION et al., Defendants.

Civ. A. Nos. 76-0914, 76-0087.

United States District Court, District of Columbia.

December 6, 1976.

As Amended December 6, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lois J. Schiffer and Margaret A. Kohn, Women's Rights Project, Center for Law and Social Policy, Washington, D. C., for D. C. NOW.

Joseph Guerrieri, Asst. U. S. Atty., Washington, D. C., for Federal Government.

Margaret F. Kelly and William J. Toppeta, Washington, D. C., for Metropolitan Life.

Michael S. Horne and Robert H. Loeffler, Covington & Burling, Washington, D. C., for Prudential Life.

William F. Joy and Robert P. Joy, Morgan, Brown, Kearns & Joy, Boston, Mass., admitted pro hac vice, for John Hancock Mutual Life.

MEMORANDUM

GASCH, District Judge.

In this action three insurance companies, the John Hancock Mutual Life Insurance Company ("John Hancock"), the Metropolitan Life Insurance Company ("Metropolitan"), and the Prudential Life Insurance Company of America ("Prudential"), seek to prevent the disclosure to the District of Columbia Chapter of the National Organization for Women ("D.C. NOW") of certain EEO-1 forms and affirmative action plans ("AAPs") submitted by the companies to the Insurance Compliance Staff of the Social Security Administration ("ICS") and the Office of Federal Contract Compliance ("OFCC") pursuant to Executive Order 11246, as amended by Executive Order 11375, and 41 C.F.R. § 60-2.1 et seq. and 41 C.F.R. 60-61.1 et seq.¹ The companies also seek to prevent the disclosure of certain Compliance Review Reports ("CRR") compiled by the ICS. This Freedom of Information Act ("FOIA") case is before this Court in a reverse posture. Unlike the typical FOIA action in which a party seeks to force the government to disclose information, in a reverse FOIA action, a party who has submitted information to a government agency seeks to prevent the agency from disclosing information to a third party pursuant to a FOIA, 5 U.S.C. § 552(a), request.

As government contractors, each of these insurance companies are required, pursuant to the above Executive Orders and regulations, to file annually an EEO-1 for its entire domestic operation and a separate EEO-1 for each individual domestic facility and office. These reports contain summary data on the number of women and minority group members employed by the company. The AAPs which the companies are also required to prepare provide much more extensive and detailed information on the past and projected employment of women and minority group members by the company. The AAPs are made available to the ICS only when the ICS conducts a compliance review of a particular facility.² The ICS periodically conducts such reviews of the companies subject to its jurisdiction and thereafter compiles a CRR which may incorporate portions of the AAPs.

On August 9, 1975, D.C. NOW made a FOIA request to the ICS for all current EEO-1s, AAPs, and CRRs³ filed by or relating to the three insurance companies parties to this action and the Equitable Life Assurance Society of the United States.⁴ Upon being informed by the ICS of D.C. NOW's request, the insurance companies objected to disclosure, arguing that the documents were exempted under sections (b)(3), (4), (6), and (7) of the Act's exemptions. The ICS rejected most of the companies' contentions.⁵ The companies then appealed to the OFCC pursuant to the provisions of 41 C.F.R. § 60-60.4(d). On July 19, 1976, the OFCC substantially affirmed the ICS's decision. It determined to disclose the EEO-1s and substantial portions of the AAPs and CRRs. Wage and salary information, the names, social security numbers, employee identification numbers, and "other identifying information," comments revealing the closing or reorganization of a unit or units not already publicly disclosed, and training data revealing entry into a new market were deleted.⁶

While the administrative appeal was pending, the two suits which have been consolidated in this action⁷ were brought. On August 22, 1975, Metropolitan initiated litigation in the Southern District of New York to enjoin release to D.C. NOW of its EEO-1s, AAPs, and CRRs. This action was subsequently transferred to this Court. On January 16, 1976, D.C. NOW filed an action pursuant to the FOIA, 5 U.S.C. § 552, to compel disclosure of the documents which were the subject of its August 9, 1975 request to the ICS. This Court stayed judicial proceedings in this suit pending the final agency decision.

On July 19, 1976, the insurance companies applied for a temporary restraining order to enjoin the release of the documents subject to D.C. NOW's August 9, 1975, request pending a hearing on a motion for preliminary injunction. After a hearing, this Court granted the companies' motion for a temporary restraining order.

This action is now before this Court on the insurance companies' motion for a preliminary injunction.⁸ The companies seek to enjoin the release by the agency of any of the EEO-1s, AAPs, and CRRs which are the subject of D.C. NOW's August 9, 1975 request to the ICS. Alternatively, if this Court is unwilling to enjoin the release of all of the foregoing material, Prudential seeks a preliminary injunction protecting certain portions of the documents.⁹ The companies take the position that the documents are exempt from mandatory disclosure under the Act by virtue of exemptions (b)(3), (4), (6), and (7) of the Act, 5 U.S.C. §§ 552(b)(3), (4), (6) and (7), and that the agency abused its discretion in deciding to disclose the documents.¹⁰ The companies have met the well-recognized standards for preliminary injunctive relief outlined by this Circuit in Virginia Petroleum Jobbers Association v. F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), with respect to certain data contained in the AAPs and those portions of the CRRs which incorporate this data. Specifically, this Court has determined that the insurance companies are entitled to preliminary injunctive relief as to the disclosure of the work force analyses, the department lists, the statistical and narrative data on projected promotions, the reasons for termination contained in certain termination tables, and certain narrative comments concerning performance evaluations or preferences or comments of employees contained in the AAPs and any portions of the CRRs which incorporate this data. The companies have not met the standards for preliminary injunctive relief with respect to the disclosure of the EEO-1s or any of the other data contained in the AAPs and CRRs.¹¹

JURISDICTION AND STANDARD OF REVIEW

The parties do not dispute this Court's jurisdiction over the matter. This Court has jurisdiction to review the agency's decision under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107, 1110 (1974); Charles River Park "A", Inc. v. H.U.D., 171 U.S. App.D.C. 286, 519 F.2d 935, 939 (1975).

The parties are in dispute as to the appropriate standard of review in a reverse-FOIA case. The federal government and D.C. NOW argue that the Court is limited to reviewing the agency's decision, on the basis of the agency record, for an abuse of discretion.¹² The insurance companies contend that they are entitled to de novo review in this Court. To some extent, both positions have merit.

In a reverse-FOIA case the threshold question is whether the documents sought are subject to mandatory disclosure or fall within an exemption to the Act. If the documents sought are subject to mandatory disclosure, the lawsuit is at an end. If the documents, or portions thereof, fall within an exemption to mandatory disclosure, the Act does not apply and the agency's decision to disclose the documents is subject to reversal only for an abuse of discretion. Charles River Park "A", Inc. v. H.U.D., supra, at 941-42. In determining whether any exemptions apply to the information which the agency intends to disclose, the Court is not confined to reviewing the agency record. Even under APA review, the Court must hold a hearing and determine de novo whether an exemption applies just as if the suit were one brought to compel disclosure. Id. at 940 n. 4. However, in determining whether the agency abused its discretion in deciding to disclose the information, the Court must only review the administrative record. Id. at 943.

MERITS

The parties have submitted numerous EEO-1s and AAPs, which they have stipulated to be representative of the documents which are the subject of this action, to the Court. No CRRs were submitted. After reviewing the documents on a page-by-page basis to determine what, if any, of the information falls within an exemption to the Act, the Court is of the opinion that there is a substantial likelihood that certain portions of the AAPs fall within the ambit of the (b)(4) and (b)(6) exemptions. To the extent that the CRRs incorporate portions of the AAPs¹³ which the Court has determined to be exempt, those portions of the CRRs are also likely to fall within these exemptions. The EEO-1s do not come within either the (b)(4) or (b)(6) exemption. Neither the (b)(3) nor (b)(7) exemption is applicable to the EEO-1s, AAPs and CRRs.

EXEMPTION (b)(3)

This exemption applies to documents "specifically exempted from disclosure by statute." The insurance companies rely on these exemption statutes: § 709(e) of the Civil Rights Act, 42 U.S.C. § 2000e-8(e); 44 U.S.C. § 3508; and 18 U.S.C. § 1905.

Section 709(e) of the Civil Rights Act concerns the disclosure of information collected by the Equal Employment Opportunity Commission (EEOC) pursuant to its authority under § 709 of the Civil Rights Act by employees or officers of the EEOC. The documents involved in the instant action were collected by the...