Schiller v. N.L.R.B.

• Citation: 964 F.2d 1205
• Decision Date: 29 May 1992
• Docket Number: No. 91-5058,91-5058
• Parties: 140 L.R.R.M. (BNA) 2590, 296 U.S.App.D.C. 84, 123 Lab.Cas. P 10,342 Arthur M. SCHILLER, Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1205

964 F.2d 1205

140 L.R.R.M. (BNA) 2590, 296 U.S.App.D.C. 84,

123 Lab.Cas. P 10,342

Arthur M. SCHILLER, Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Appellees.

No. 91-5058.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 7, 1991.

Decided May 29, 1992.

Arthur M. Schiller, pro se.

Winn Newman and Sharon L. Papp, Washington, D.C., were on the brief, for appellant.

Abby Propis Simms, Sr. Litigation Atty., N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, and Margery E. Lieber, Asst. Gen. Counsel, Washington, D.C., were on the brief, for appellees.

Before MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

The Freedom of Information Act permits federal agencies to deny disclosure of material that falls within any of the listed exemptions. See 5 U.S.C. § 552(a)-(b). FOIA also requires agencies to disclose "[a]ny reasonably segregable portion" of a withheld document. 5 U.S.C. § 552(b). In this case, the National Labor Relations Board invoked FOIA's exemptions to withhold five documents concerning the Board's implementation of the Equal Access to Justice Act, but the Board did not disclose "reasonably segregable" portions of the documents nor explain why nothing in the documents could be segregated and disclosed. The district court sustained the Board's refusal to comply with the FOIA request without addressing the statutory segregability requirement. We affirm the district court to the extent that it held that each of the withheld documents contains information privileged under FOIA. Because, however, it is not for us to decide in the first instance whether the documents contain any information that can be segregated and disclosed, we remand for that purpose.

I

Four years ago, Appellant Arthur M. Schiller submitted a FOIA request to the NLRB asking for all memoranda and instructions pertaining to the implementation of the Equal Access to Justice Act, 5 U.S.C. § 504. Under EAJA, prevailing parties in certain adversary administrative proceedings may recover attorney's fees and costs from the government. In response to the FOIA request, the NLRB told Mr. Schiller that it had identified nine relevant documents. The Board disclosed four of the documents, plus the attachments to two additional ones. The Board withheld the remaining five documents, as well as attachments to two of those.

Mr. Schiller contested the NLRB's decision to withhold the five documents. After exhausting administrative remedies, Mr. Schiller sued in district court. To justify its decision to withhold the documents, the Board submitted a Vaughn index to the court. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Board later amended its Vaughn index and also submitted the affidavit of John H. Higgins, Jr., the Board's Deputy General Counsel, explaining the Board's response to Mr. Schiller's FOIA request and attempting to justify the Board's actions. The Board claimed that all of the documents were privileged from disclosure under exemption 2, which applies to information "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2), and under exemption 5, which applies to "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," id. § 552(b)(5). The Board claimed that two of the documents were privileged under exemption 7(E), which protects "investigatory records compiled for law enforcement purposes" to the extent they "disclose investigative techniques and procedures." Id. § 552(b)(7)(E).

After inspecting the documents in camera, the district court granted the Board's motion for summary judgment, finding that all five documents were appropriately withheld under exemption 2 and, alternatively, exemption 5. The district court did not consider whether any documents were properly withheld under exemption 7(E).

II

A. The Exemptions

Under FOIA, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The district court held that the Board, with its Vaughn index and affidavit, met its burden of showing that each of the five documents contains information privileged under exemption 2 or exemption 5. We agree.

1. Exemption 2. Matters "related solely to the internal personnel rules and practices of an agency" are exempt from disclosure. 5 U.S.C. § 552(b)(2). Exemption 2, we have held, applies to material "used for predominantly internal purposes." Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc). If the threshold test of predominant internality is met, an agency may withhold the material "by proving that either 'disclosure may risk circumvention of agency regulation,' or 'the material relates to trivial administrative matters of no genuine public interest.' " Schwaner v. Department of Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) (citations omitted). Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations are protected by the so-called "high 2" exemption. Predominantly internal documents that deal with trivial administrative matters fall under the "low 2" exemption.

The district court committed no error in finding, based on the Vaughn index and affidavit, that each of the withheld documents contains information that is predominantly internal, satisfying the threshold test under exemption 2. Contrary to Mr. Schiller's description, the Vaughn index does not contain only conclusory statements to justify predominant internality. Though terse, the index describes the content of each document in sufficient detail to justify a conclusion that each document contains predominantly internal information. To pick one example, the Vaughn index states that document 5 "includes internal time deadlines, instructions as to which agency division to contact for assistance, and recordkeeping directions." That is enough to get the information the index describes over the hurdle of predominant internality.

The Vaughn index reveals that several of the documents also contain information about litigation strategy. In Mr. Schiller's view, that information is not predominantly internal because it involves the NLRB's relations with outsiders--individuals with whom the Board is litigating. But as we said in our leading case on exemption 2, "any 'internal personnel rules and practices of an agency' [have] some effect on the public-at-large." Crooker, 670 F.2d at 1073. Crooker involved a Bureau of Alcohol, Tobacco & Firearms training manual that included information on surveillance techniques. Although surveillance techniques involve the agency's interaction with outsiders--suspects, namely--we held that the manual was predominantly internal because it was designed to establish rules and practices for agency personnel and because it involved no " 'secret law' of the agency." Id. at 1073. The portions of the withheld documents here concerning litigation strategy similarly establish rules and practices for agency personnel, and Mr. Schiller has given us no reason to think that the documents contain any "secret law."

The Vaughn index and affidavit make plain that documents 5, 6 and 8 contain trivial administrative matters of no genuine public interest and therefore fall under the "low 2" exemption. The documents, according to the Vaughn index and affidavit, contain internal time deadlines and procedures, recordkeeping directions, instructions on which agency officials to contact for assistance, and guidelines on when clearance from Washington is necessary for certain decisions--housekeeping matters appropriately withheld under exemption 2.

We doubt that the litigation strategy described in documents 7 and 9 fits under the "low 2" exemption for trivial administrative matters. That information, however, does qualify as "high 2" material because its disclosure would risk circumvention of statutes or agency regulations. To be sure, the Equal Access to Justice Act is not a penal or enforcement statute; it is a fee-shifting statute unlike the laws regulating the use of tobacco, alcohol and firearms that could have been circumvented had the manual in Crooker been disclosed. But we have not limited the "high 2" exemption to situations where penal or enforcement statutes could be circumvented. Rather, we have held that "[w]here disclosure of a particular set of documents would render those documents operationally useless, the Crooker analysis is satisfied whether or not the agency identifies a specific statute or regulation threatened by disclosure." National Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 530-31 (D.C.Cir.1986) ("NTEU"). As in NTEU, disclosure of documents containing guidelines on implementing the Equal Access to Justice Act "would quickly render those documents obsolete for the purpose for which they were designed," id. at 530, compromising the Board's ability to defend itself in EAJA actions. We conclude that each of the five withheld documents contains information privileged under exemption 2.

2. Exemption 5. The NLRB may refuse to disclose "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. 552(b)(5). Exemption 5 ensures that members of the public cannot obtain through FOIA what they could not ordinarily obtain through discovery undertaken in a lawsuit against the agency. EPA v. Mink, 410 U.S. 73, 85-86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). Accordingly, exemption 5 " 'exempt[s] those documents ... normally privileged in the civil discovery context.' " United States Dep't of Justice v. Julian, 486 U.S. 1, 11, 108 S.Ct. 1606, 1613, 100 L.Ed.2d 1 (1988) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149,...