Vaughn v. Rosen, Civ. A. No. 1753-72.

• Decision Date: 09 October 1974
• Docket Number: Civ. A. No. 1753-72.
• Citation: 383 F. Supp. 1049
• Parties: Robert G. VAUGHN, Plaintiff, v. Bernard ROSEN, Defendant.
• Court: U.S. District Court — District of Columbia

383 F. Supp. 1049

Robert G. VAUGHN, Plaintiff, v. Bernard ROSEN, Defendant.

Civ. A. No. 1753-72.

United States District Court, District of Columbia,

October 9, 1974.

COPYRIGHT MATERIAL OMITTED

Ronald L. Plesser, Alan B. Morrison, Washington, D. C., for plaintiff.

Derek I. Meier, Washington, D. C., for defendant.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This case is before the Court on remand¹ from the United States Court of Appeals for the District of Columbia for further proceedings consistent with the Court of Appeals opinion. We are to determine whether certain reports of inspections evaluating personnel management in the various federal agencies are exempt from disclosure under the Freedom of Information Act.² The reports are evaluations by the Bureau of Personnel Management of the Civil Service Commission and contain its findings and recommendations with respect to the performance by managers and supervisors of the various agencies in carrying out their personnel management responsibilities. The evaluations cover a wide variety of subjects: personnel management environment, equal employment opportunity, merit promotion and incentive awards, labor-management relations, position classification, processing personnel actions, manpower planning, performance evaluation, and so on. Many of the reports contain the evaluators' recommendations and these are often included under the caption "Action Items."

The Court of Appeals made no determination as to whether or not any of the exemptions claimed by defendant applied to the documents sought. Rather, the Court remanded the action and required defendant to provide a detailed justification for its claims of exemption, in place of conclusionary and generalized allegations. To this end, the Court suggested a "system of itemizing and indexing that would correlate statements made in the Government's refusal justification with the actual portions of the documents ... such an indexing system would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification."³

Generally, the appropriate procedure in such matters is for the Court to review the documents in camera and evaluate the claim of exemption asserted.⁴ The difficulty with any system of judicial inspection is readily apparent when, as here, plaintiff submits a blanket request for access to documents without sufficiently describing the documents or their contents.

The affidavit of John J. Lafferty, Deputy Director, Bureau of Personnel Management Evaluation, United States Civil Service Commission, reflects that the number of documents involved here is approximately 2,448, filling seventeen standard-size, five-drawer cabinets. According to Mr. Lafferty, the time required to index all the documents in accordance with the decision of the Court of Appeals would be 10,257.1 man-hours or 4.93 man-years, at a total cost to the Government of $96,176.00.⁵ It is clear from the affidavit that the cost, both in terms of time and money, of indexing the documents would be, in any practical sense, prohibitive. A realistic solution to the dilemma posed by the suggestion of the Court of Appeals and the physical magnitude of the task become imperative.

Accordingly, of the approximately 2,448 reports sought by plaintiff, defendant with the agreement of the plaintiff, has submitted nine representative samples of the reports with identifying details deleted. Accompanying each representative sample, defendant has submitted a table giving a breakdown of each report by page, paragraph or sentence together with the reason or reasons to explain why the material sought is exempt from disclosure under the Act. The parties have agreed that the samples are representative of the documents sought, and they have agreed that the ultimate judicial decision based on these nine representative samples will be considered applicable to all of the documents sought in this action. Both parties, therefore, believe that the opinion of the Court of Appeals has been substantially complied with by defendant. We concur.⁶

It has been repeatedly held that the Freedom of Information Act creates a liberal disclosure requirement limited only by specific exemptions which are to be narrowly construed. It is defendant's position that plaintiff should be denied access to the requested documents on the basis of Sections (b)(2),⁷ (b)(5),⁸ and (b)(6)⁹ of the Act.

1. The claim of exemption under Section (b)(2).

Section (b)(2) exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." (emphasis supplied).

Defendant would interpret the (b)(2) exemption to mean the "ways and means by which agency managers supervise their personnel and utilize their services."¹⁰ Pursuant to this section, defendant seeks exemption from public disclosure of evaluations of personnel practices of the various agencies in such areas as promotions, management techniques, recruitment programs, and hiring. It is our opinion, after an examination of the nine reports, that such documents clearly fall outside the purview of Exemption 2, which requires not only that the material be "related" to internal rules and practices, but "related solely" to such matters.¹¹

As the Court reads Section (b)(2), its plain words exempt from the disclosure requirements of the Act general intra-agency housekeeping rules and practices, such as those related to parking facilities, regulation of lunch hours, sick leave policy, work schedules and office assignments.¹² The sample documents, on the other hand, are evaluations by the Civil Service Commission of the performance of various federal agencies in achieving certain personnel goals and objectives. The thrust of the reports is to evaluate compliance with government-wide personnel policies such as merit promotion, equal employment, work incentive programs and the like. Matters of general public policy have a substantial potential for public interest outside the Government. Federal employment policies, which are, after all, publicly financed, are matters of important public concern. Moreover, reports evaluating agency compliance with such policies cannot be said to relate "solely" to "internal" personnel rules, such as lunch rooms, sick leave and parking lots. Accordingly, all documents or portions thereof claimed to be exempt under Section (b)(2) alone must be disclosed.

2. The claim of exemption under Section (b)(5).

Section (b)(5) of the Act exempts from disclosure "inter-agency and intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

This provision has been held to require the disclosure of documents unless they contain recommendations or deliberations in the course of the decision-making process or exchanges of views within an agency or between agencies.¹³ Portions containing factual data which can be separated out from the decision-making process and which are not subject to another exemption must also be disclosed.¹⁴

In considering the nine representative samples, it is necessary to divide the documents into two portions — (1) the factual, investigative and evaluative portions, and (2) the so-called "Action Items" and other recommendatory portions.

The line of demarcation between what may be withheld and what must be disclosed is not between facts and opinions. Exemption 5 was designed to foster uninhibited discussion within an agency of legal and policy matters and to prevent premature disclosure of agency records when such disclosure might impede the proper functioning of the administrative process. Thus, the line we must draw is between pre-decisional and decisional documents.

A careful examination of the reports makes it clear that the evaluations and factual data are not solely, or even largely, a part of the pre-decisional or consultative or deliberative process, but rather reflect final objective analyses of agency performance under existing policy.¹⁵ These documents primarily reveal whether the agencies' policies are being carried out. They are not advisory opinions, position papers, policy recommendation, or other such intra-governmental documents concerned with the deliberative processes of the Commission. They are not composed "exclusively" for purposes of assisting policy formulation, but instead serve to reflect adherence to policies already announced.¹⁶ Since the Court is not persuaded that these portions fall within the exemption of (b)(5), they must be disclosed.

On the other hand, a relatively small portion of the documents consists, not of evaluations of past performance, but of recommendations looking to the future. The purpose of the "Action Items" and other recommendatory portions is therefore to shape prospective agency policy and performance. For this reason, the recommendatory portions of the documents contained in the "Action Items" and other sections clearly are "inter-agency" documents reflecting deliberations by the Civil Service Commission communicated to officials of particular agencies. They are prepared for presentation to the appropriate officials of each agency evaluated, and they contain the Bureau's opinions on how the agencies' managers and supervisors can improve the effectiveness of personnel management operations. Thus, they are necessarily tentative and, if not correct, may evoke a response from the agency under examination.¹⁷ These are not the final policy, but the theories and ideas which will influence the final personnel policy. As such, they should not be made available to the public. Accordingly, those portions of the documents labelled "Action Items," together with those portions consisting of advice and recommendations from the Civil Service Commission to other agencies are exempt from disclosure under Section (b)(5). These recommendations and "Action Items" exempt from...