Schell v. U.S. Dept. of Health & Human Services, 86-2146

Citation843 F.2d 933
Decision Date01 April 1988
Docket NumberNo. 86-2146,86-2146
PartiesWilliam F. SCHELL, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, et al., Defendants- Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

William F. Schell (argued), Holt, Mich., pro se.

Daniel M. LaVille, Asst. U.S. Atty., Grand Rapids, Mich., Barbara F. Altman (argued), Asst. Regional Atty., Dept. of HHS, Chicago, Ill., for defendants-appellees.

Before NELSON and BOGGS, Circuit Judges; and EDWARDS, Senior Circuit Judge.

BOGGS, Circuit Judge.

William F. Schell appeals the district court's decision denying his request under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982), for disclosure of a memorandum prepared by the administrative law judges in the Lansing, Michigan field office of the Office of Hearings and Appeals, Social Security Administration. We affirm.

I

The essential facts are largely undisputed. Schell is an attorney-advisor with the Lansing, Michigan field office of the Office of Hearings and Appeals (OHA), Social Security Administration. His duties include providing legal advice and professional assistance, including legal research and writing, to the administrative law judges in the Lansing office and in the Chicago region.

In 1985, the OHA instituted a nationwide program called "Pursuing Excellence through Participation" (PEP), which was designed to "increase employee involvement in setting the agency's goals for the coming year." The program invited employees to develop and implement a "participatory planning process" within the OHA to increase their involvement in agency decisionmaking. The PEP manual described the planning process as follows:

The first essential element is developing your unit's mission statement, which describes your unit's reason for existence and includes the nature and scope of work to be performed. The next step in planning is identifying goals, which contribute to the accomplishment of your unit's mission. Hand-in-hand with identifying goals is the need to develop action steps for accomplishing those goals. Once the plan has been implemented, a progress assessment phase begins that measures progress made at prescheduled intervals toward achieving your goals. The final phase of the planning process asks you to identify possible solutions to problems, which impact on your unit but over which you have no control.

Robert Hull, an ALJ in the Lansing office, called a meeting to notify the employees about the program. He indicated that the ALJs in the office had decided not to participate, but others would be afforded an opportunity to do so.

Several employees decided to participate in the PEP program. This group was composed of two attorney-advisors, two hearing analysts, and the supervisory attorney-advisor for the field office. At the first meeting in March 1985, Schell was elected the leader of the group. It met over the next few months to develop a PEP plan, which Schell presented to Judge Hull.

In Initiative "s" of their plan, the PEP group recommended that government representatives be assigned permanently in all OHA offices "to insure that the Administration guidelines are followed [and] cases are more correctly decided." This was necessary, according to the group, because the "ALJ's [sic] run roughshod, unchecked over claimants and Administration, making decisions which ignore established regulations & rulings & the facts of the particular cases." In assessing the value of this initiative, the group stated: "Great Monetary savings for the Administration in that the current 'liberal' outlook of current ALJ corps in paying benefits to those not deserving would be tempered. In the same vein, more correct decisions would bring greater trust in the Administration (Gov't) from the public."

Schell alleges that Judge Hull improperly routed the PEP recommendations to the ALJs in the Lansing office. As a result, he contends, some of the ALJs stopped speaking to him and "refused to provide work to members of the group" for most of May and June 1985.

Shortly thereafter, Schell received a visit from Norman Wallace, Regional Deputy Management Officer of the OHA, concerning the group's recommendations. Wallace told Schell that the ALJs were "furious" about Initiative "s" and had written a response. The ALJ memorandum disagreed (to put it mildly) with the Schell group, gave reasons opposing the suggested policy changes, and made recommendations as to the procedures that should be followed by the Lansing office. The memorandum was addressed to the Associate Commissioner of the OHA; copies were sent to the Chief Administrative Law Judge and the Regional Chief Administrative Law Judge.

Wallace denied Schell's request for the memorandum, but suggested he could gain access to it under the Freedom of Information Act (FOIA). In order to "defuse the situation," Wallace asked the group to consider modifying the language of Initiative "s," which they did. He assured Schell that no member of the group would be disciplined for the PEP recommendations. 1

On June 5, 1985, Schell filed a FOIA request with the agency. John Percy, FOIA officer for the Social Security Administration, denied the request pursuant to Exemption 5, which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than the agency in litigation with the agency." 5 U.S.C. Sec. 552(b)(5) (1982). In his letter, he said: "Release of this material would be harmful to the quality of the decision-making process of the agency as it may have a chilling effect on frank and open discussion among agency personnel in formulating a position or policy." On appeal, Louis D. Enoff, Acting Deputy Commissioner for Programs and Policy, OHA, upheld Percy's decision to deny Schell's FOIA request. Enoff cited Exemption 5 and Exemption 6 in support of his decision. Exemption 6 exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(6) (1982).

After exhausting his administrative remedies, Schell filed the instant action. The district court granted summary judgment for the agency, relying exclusively on Exemption 6. Instead of reviewing the four-page memorandum in camera, the court relied on the affidavit submitted by FOIA officer Percy, which read in pertinent part:

The memorandum was written in response to certain allegations made by the attorney-advisors and hearing analysts in the Lansing, Michigan office of OHA to the Regional Chief Administrative Law Judge about the signatory administrative law judges. The memorandum is devoid of factual matter but rather expresses the thoughts, opinions, and attitudes of the writers, concluding with a recommendation that certain action be taken. The writers freely and frankly discuss perceived problems and potential problems of interpersonal relations in the Lansing, Michigan office of OHA and suggest alternative courses of action to alleviate these perceived problems and potential problems.

To my knowledge, no action has been taken by OHA management in response to the subject memorandum. I believe that disclosure of the memorandum would stifle open communication between administrative law judges in field offices and national (and regional) management concerning the broad range of personnel matters. I further believe that disclosure of the personal and subjective thoughts expressed by the signatories could embarrass these administrative law judges and subject them to ridicule and criticism. Conversely, disclosure would serve no conceivable public interest since the memorandum deals exclusively with personnel matters and interpersonal relations among employees of OHA.

Based on this information, the district court ruled that the memorandum constituted a "similar" file, disclosure of which would be a "clearly unwarranted invasion of personal privacy."

After reviewing in camera the ALJ memorandum, we hold that the document is exempt from disclosure under Exemption 5. Accordingly, we affirm the decision of the district court.

II

The Freedom of Information Act, 5 U.S.C. Sec. 552 (1982), was enacted "to permit access to official information long shielded unnecessarily from public view and ... to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The Act seeks to ensure that government officials are held accountable to an informed electorate. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 243, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). "Disclosure, not secrecy, is the dominant objective of the Act." Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976).

Yet, Congress understood that government could not function effectively if public access were granted indiscriminately. "To permit disclosure of certain types of information could impair the effective performance of vital governmental functions and threaten the well-being of individual citizens by unnecessarily revealing information of a personal nature." Madeira Nursing Center, Inc. v. NLRB, 615 F.2d 728, 730 (6th Cir.1980) (citing S.Rep. No. 813, 89th Cong., 1st Sess. 6 (1965)). Congress sought a workable balance between the right of the public to be informed and the need of the government to keep sensitive information in confidence to the extent necessary to permit a democracy to function. H.R.Rep. No. 1497, 89th Cong., 2d Sess. 6, reprinted in 1966 U.S.Code Cong. & Admin.News 2418, 2423.

Congress achieved this balance by providing nine statutory exemptions from disclosure. 5 U.S.C. Sec. 552(b) (1982). In keeping with the philosophy of disclosure, however, these exemptions are "narrowly construed," Rose, 425 U.S. at 361, 96 S.Ct. at 1599,...

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