Nationwide Mut. Ins. Co. v. Friedman

• Decision Date: 26 May 1978
• Docket Number: Civ. No. Y-77-1200.
• Citation: 451 F. Supp. 736
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. Everett FRIEDMAN et al.
• Court: U.S. District Court — District of Maryland

451 F. Supp. 736

NATIONWIDE MUTUAL INSURANCE COMPANY v. Everett FRIEDMAN et al.

Civ. No. Y-77-1200.

United States District Court, D. Maryland.

May 26, 1978.

COPYRIGHT MATERIAL OMITTED

James Garland, Baltimore, Md., Jeffrey S. Goldman, Chicago, Ill., for plaintiff.

Thomas W. Hussey, Washington, D. C., Donald H. Feige, Baltimore, Md., for defendants.

JOSEPH H. YOUNG, District Judge:

By an amended complaint, filed September 21, 1977, Nationwide Mutual Insurance Company (Nationwide) requests declaratory and injunctive relief against defendants, officials of the Social Security Administration (SSA), Department of Health, Education and Welfare (HEW) and the Department of Labor. Plaintiff seeks to prevent public disclosure of information submitted to the Social Security Administration, concerning the religious composition of its work force at middle and upper management levels. The American Jewish Committee and the Anti-Defamation League of B'nai B'rith requested the data, and SSA determined that, with certain deletions, disclosure was mandatory, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This type of case is termed a "reverse FOIA" claim because the agency has determined that information should be disclosed, and the submitter objects to disclosure.

Motions for summary judgment have been filed by plaintiff and defendants. Defendants contend that the information, except for matters already deleted, does not fall within any statutory exemption from mandatory disclosure under the FOIA. Plaintiff contends that the information comes within various exemptions of § 552(b), that SSA therefore has discretion to release or withhold it, and that, under the circumstances of this case, SSA was required to exercise its discretion in favor of nondisclosure. In the alternative, plaintiff asks that additional deletions be made from the material.

The defendants' motion for summary judgment will be granted. Except for one additional deletion, the FOIA requires disclosure of the material. Plaintiffs' motion for summary judgment is denied.

FACTS

As a government contractor, plaintiff is required to comply with Executive Order 11246, by hiring employees without regard to race, color, religion, sex or national origin, and taking affirmative action to eliminate employment discrimination. Responsibility for enforcement of the Order is centered in the Director of the Office of Federal Contract Compliance (OFCC), who, in turn, designates various federal agencies as "compliance agencies" to assure contractor compliance within certain geographical or industrial areas. The compliance agency for plaintiff is the Social Security Administration.

Plaintiff is required to file an annual Employer Information Report (EEO-1), listing the number of women and minority group members in the work force, and to prepare an Affirmative Action Program (AAP). The AAP must contain a "Utilization Analysis," identifying the job level of minority personnel, and establishing goals and schedules for improving opportunities for minorities.

The compliance agency examines the EEO-1 and AAP, conducts on site inspections, and formulates a compliance review report (CPR). The CPR includes the information given by the contractor, an evaluation, and recommendation for sanctions or corrective measures. The compliance agency also investigates complaints that a contractor is violating the Executive Order, and prepares reports of such investigations. See 41 C.F.R. 60-1.1 et seq.

In 1969, in response to general complaints made by several religious-oriented community organizations, including the American Jewish Committee and the Anti-Defamation League, the Secretary of Labor initiated a pilot project regarding religious discrimination in the insurance industry. The project was assigned to the Insurance Compliance Staff of SSA. Dr. Barry T. Whitman, assigned to the project as an Equal Opportunity Specialist, characterizes the undertaking as a "special equal opportunity compliance review project." Form SSA-1776, Religious and Ethno-Religious Affiliation Questionnaire was developed by SSA, and completed by plaintiff and other submitters. The questionnaire and the narrative report by the specialist, after an on site review, are the documents at issue in the present case.

Form 1776 contains the following information: a general summation of existing practices to promote equal opportunity without regard to religion; a description of the company's executive and middle management positions; a utilization analysis of the Jews and Catholics in these positions; and a general statement of any plans and/or objectives to promote full and equal employment opportunity without regard to religion in the future. The form is signed by a Nationwide official; other than that, it does not contain names or, with one exception, individualized comments. The specialist's narrative report includes the following information: a list of Jewish and Catholic community resources; a report of attitudes of key company officials; a discussion of the Form 1776; a statement of the method of religious identification used by plaintiff for the study; a description of some local religious-community organizations' programs for promoting equal employment generally; a summary of the questionnaire information; and a synopsis of the goals and commitments made by plaintiff. All names of Nationwide officials and employees have been deleted from the report. Thus, the report provides a summation of attitudes, without attribution to particular individuals.

The parties agree that the information was furnished upon an understanding of confidentiality. The questionnaire itself states that information "will be used only in connection with the administration of Executive Order 11246 and the Civil Rights Act of 1964 and will not be revealed to any outside person or organization."

The affidavit of Dr. Whitman indicates that this pilot project differed from other compliance activities stating:

The contract compliance approach to possible employment discrimination based on religion differed from other compliance activities. First, compliance efforts concentrated on top corporate officials because of the sensitive policy implications of this issue and because these officials would be in the most favorable position to furnish accurate information on the representation of Catholics and Jews in executive and middle management positions. Second, emphasis was placed on a consultative role, and assistance was provided Federal contractors in the completion of the Form SSA-1776. A third activity was directed toward fostering a concept under which the contractor would take the initiative in developing a positive program. The Form SSA-1776 was used as a tool to focus management's attention on the problems and suggest steps to overcome them.

Affidavit of Dr. Whitman at page 2.

ISSUES

Determination of whether the above information will be disclosed turns on the application of the FOIA to the facts of this case. The key question is whether this is a situation where the FOIA requires disclosure or leaves the agency some discretion in making the choice. If the decision was discretionary, rather than mandatory, it must be determined whether SSA was required to reach the opposite conclusion under the facts of this case.

The basic purpose of Congress in enacting the FOIA was to promote broad public access to information within the control of the government. E. g., Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Under the terms of the Act, the nine exemptions of subsection (b) are the sole and exclusive basis for an agency to withhold information or limit the availability of records to the public, 5 U.S.C. § 552(c). If the information in this case does not come within an exemption, SSA has no discretion and must provide the documents upon request, and no issue of the extent or proper exercise of agency discretion will arise. In Metropolitan Life Insurance Co. v. Usery, 426 F.Supp. 150 (D.D.C.1976), the court stated:

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.

Id. at 156.

While the exemptions show the Congressional intent to balance important needs for confidentiality against the public interest in access to information, they must be narrowly construed in accord with "the basic policy that 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 11 (1976). Unless one of the nine exemptions applies, "virtually every document generated by an agency is available to the public in one form or another." National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975).

In the instant case, the original agency decision shows that SSA has consistently seen itself as complying with the statutory mandate, rather than exercising discretion. The letter of the Compliance Staff Chief, dated July 15, 1977, setting forth the agency position, states that FOIA "requires" disclosure and that SSA "is constrained" to release the documents. The affidavit of Paul A. Schuette, Director of the Office of Information at SSA, indicates that the documents were reviewed line by line, and that the Agency exercised its discretion in favor of deletion, rather than release, whenever information came within the ambit of a statutory exemption.

SCOPE OF REVIEW

The Court will determine de novo whether exemption 3, 5, 6 or 7(C) or (D) of § 552(b) is applicable to the facts of this case.¹ While the FOIA explicitly gives requesters a cause of action to compel disclosure, no express statutory provision gives submitters an FOIA cause of action to prevent disclosure, and there is...