Schwaner v. Department of Air Force, 88-5341

• Decision Date: 09 May 1990
• Docket Number: No. 88-5341,88-5341
• Citation: 898 F.2d 793
• Parties: , 58 USLW 2563 Henry C. SCHWANER, Appellant, v. DEPARTMENT OF the AIR FORCE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 793

898 F.2d 793

283 U.S.App.D.C. 196, 58 USLW 2563

Henry C. SCHWANER, Appellant, v. DEPARTMENT OF the AIR FORCE.

No. 88-5341.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 1989.

Decided March 16, 1990.

Rehearing Denied May 9, 1990.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 88-0560).

Craig Becker, for appellant.

Richard L. Huff, Atty., U.S. Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before BUCKLEY and WILLIAMS, Circuit Judges, and GEORGE H. REVERCOMB, ^* United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by District Judge REVERCOMB.

STEPHEN F. WILLIAMS, Circuit Judge:

Appellant Henry Schwaner is an insurance agent. In the hopes of finding new customers, he invoked the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1988), to request from the Department of the Air Force a roster containing the names and military duty addresses of the five lowest ranks of personnel stationed at Bolling Air Force Base. The Air Force denied the request, relying on Sec. 552(b)(2), which exempts "matters that are ... related solely to the internal personnel rules and practices of an agency."

Schwaner filed suit in district court, which granted summary judgment for the Air Force. Henry C. Schwaner v. Department of the Air Force, 698 F.Supp. 4 (D.D.C.1988). The district court first recognized that:

The language of ... Exemption (b)(2) ... would appear not to envision a request such as Schwaner's. While it is the Air Force's practice to maintain this data, along with other miscellaneous information for purely internal convenience, the data itself is not a practice.

Id. at 5 (citation omitted). Nevertheless the court held that Schwaner's request was subject to exemption 2 because the records were "purely internal." Id. The district court then weighed the public interest in the disclosure of such lists and, finding little or none, held the exemption applicable. As the list does not bear an adequate relation to any rule or practice of the Air Force as those terms are used in exemption 2, we reverse.

Our cases have sought to give exemption 2 some structure by adopting a two-step process. "First, the material withheld should fall within the terms of the statutory language." Founding Church of Scientology, Wash. D.C. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983). If so, the agency may defeat disclosure by proving that either "disclosure may risk circumvention of agency regulation", Department of the Air Force v. Rose, 425 U.S. 352, 369, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976), see also Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C.Cir.1981) (en banc) (risk of circumvention of statutes), or "the material relates to trivial administrative matters of no genuine public interest," Founding Church of Scientology, 721 F.2d at 830 n. 4.

In a series of cases addressing whether the requested information related sufficiently to internal concerns of the agency, we framed the initial test as one of "predominant internality." See Crooker, 670 F.2d at 1074. The qualifier "predominant" arose out of a recognition that if the word "solely" (in the phrase "related solely") were interpreted literally and absolutely, exemption 2 would cover nothing at all. As Judge Leventhal wrote in a separate concurrence in Vaughn v. Rosen, 523 F.2d 1136, 1150-51 (D.C.Cir.1975), "there are few events ... that occur without so much as a tiny ripple effect outside their area of prime impact." On the other hand, to disregard "solely" would make the exemption all-encompassing. Id. To escape the all-or-nothing dilemma, Judge Leventhal proposed that the "matter" must relate "predominantly" to internal agency rules and practices, id. at 1151, and the court en banc adopted his formula in Crooker, 670 F.2d at 1056-57, 1074.

We have often applied the "predominant internality" test without emphasizing the words "rules and practices." See, e.g., NTEU v. U.S. Customs Service, 802 F.2d 525, 528 (D.C.Cir.1986). But in such cases the requested information was typically a rule or practice in the most literal sense. See, e.g., id. (rules for evaluating job applicants); Crooker (training manual for agents); Cox v. Dep't of Justice, 601 F.2d 1, 4-5 (D.C.Cir.1979) (marshal's manual); Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 717, 723, vacated and reheard en banc, 591 F.2d 752 (D.C.Cir.1978) (affirming by an equally divided vote district court's judgment that guidelines and instructions for audits were within exemption 2). For similar cases from other circuits, see Kaganove v. EPA, 856 F.2d 884 (7th Cir.1988) (guidelines and specifications for employee promotions); Dirksen v. Dep't of Health and Human Serv., 803 F.2d 1456 (9th Cir.1986) (internal processing guidelines for medicare claims); Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 656-57 (9th Cir.1980) ("raids and searches" manual); Cox v. Levi, 592 F.2d 460 (8th Cir.1979) (FBI manual of rules and regulations); Windels, Marx, Davies & Ives v. Dep't of Commerce, 576 F.Supp. 405, 411-13 (D.D.C.1983) (computer program for processing audits).

As the government justly stresses, information need not actually be "rules and practices" to qualify under exemption 2, as the statute provides that matter "related" to rules and practices is also exempt. In Department of the Air Force v. Rose, 425 U.S. 352, 369, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976), for example, the materials requested were summaries of cases decided by the Air Force Academy's Honor Committee, the body charged with enforcing its Honor and Ethics Code. Though the actual decision in Rose was that exemption 2 could not defeat that particular request, the Court apparently assumed that the material was related closely enough to "rules and practices" that exemption 2 was a potential defense. While case summaries are not "rules and practices" themselves (as the Honor Code itself would be), they do manifest and implement the rules and practices of the Academy relating to the conduct of cadets. The Academy in fact distributed the summaries to the cadets "precisely in order to assure their compliance with the known content of the Codes." Id. at 364-65, 96 S.Ct. at 1600-01. Thus the Court evidently regarded the summaries as part of the "content" of the Codes, broadly conceived, as one might speak of judicial decisions becoming part of a statute for purposes of a party's accommodation of his conduct to the legislative command.

The government draws a poor parallel between the documents in Rose and the material requested here. It argues that the personnel data sought here is similar to the case summaries from the Honor Committee, as it is "exclusively derived from, and thus [is] 'related solely to,' the Air Force's 'practice' of extracting selected personnel data from [various] files ... and data bases and compiling them into the computerized Advanced Personnel Data System." Appellee's Brief at 11. The argument itself makes clear that the only "practice" to which the material is related is the practice of collecting the data. As bureaucracy is nothing if not a creature of habit, the sweep of the claim is broad indeed, excluding only (predominantly internal) information collected on an official frolic.

The government can cite only one decision that even arguably would extend Rose to encompass a list of names and duty addresses. In Bernknopf v. Califano, 466 F.Supp. 319 (W.D.Penn.1979), the court exempted material describing the outside work activities of each agency administrative law judge that had been approved by the agency. The requester--himself an ALJ for the agency--had asked for names and addresses of the ALJs along with the outside work data. The agency had turned over a partial list and had deleted the names and addresses of the judges. The requester appears not to have objected to the name-and-address deletion; his primary concern was evidently to secure the agency's outside work rulings for the ALJs as to whom the agency had turned over nothing. (As an ALJ who had recently been denied authorization for outside work, id. at 320, he had an obvious interest in discovering the agency's practice in approving such work.) The district court found that the "decisions [were] agency determinations for the physical control of its employees consistent with the agency's powers." Id. at 321 (emphasis added). Thus, like Rose' § Honor Code case summaries, they were adjudicatory decisions manifesting the agency's "practice" for control of personnel, and implementing and reflecting its rules. This is a far cry from information that manifests only an agency's practice of collecting information.

Adjudicatory decisions are but one species of information that can be withheld because it is closely "related" to a rule or practice. Thus, courts have also exempted materials that are so closely related to rules and practices that disclosure could lead to disclosure of the rule or practice itself. For example, this court has held that an agency can delete sensitive notations on documents where they indicated an agency's practices as to their internal routing and distribution. See Lesar v. United States Dep't of Justice, 636 F.2d 472, 485-86 (D.C.Cir.1980); Founding Church of Scientology, 721 F.2d at 831. The materials in these cases fall handily within the statutory requirement of being "related" to agency rules or practices in that they bear upon, or cast light upon, those practices. Moreover, in these cases, the government's asserted interest in preventing disclosure (the second step of the exemption 2 test) was to protect the identity of FBI informants, Lesar, 636 F.2d at 486, or to prevent the...