UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 1753-72).
Leventhal and Wilkey, Circuit Judges and Merhige,* United States District Judge for the Eastern District of Virginia. Opinion for the Court filed by Circuit Judge Wilkey. Concurring opinion filed by Circuit Judge Leventhal.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY
This is a suit under the Freedom of Information Act seeking to compel disclosure of "Evaluation of Personnel Management" reports, as well as reports and studies of a similar nature, prepared by the Bureau of Personnel Management of the Civil Service Commission (the "Commission"). After examining a representative sample of nine documents, the District Court granted plaintiff's motion for summary judgment, and thus ruled disclosable those portions of the reports which the Government claimed were exempt under Exemption 21 and Exemption 5,2 insofar as the reports consisted of material relating to analysis of how the agencies' personnel policies were being carried out. On the other hand, the District Court granted the Government's motion for summary judgment and thus protected from disclosure those portions of the reports consisting of advice and recommendations to the agencies as to how to improve their personnel programs and those portions of the reports which contain references to individual employees or particular agency officials. Since only the Commission perfects an appeal from the judgment entered by the District Court, the latter ruling is not before us.
For the reasons set out, we affirm the District Court's disposition. I. Facts and Procedural Background
Plaintiff, a law professor doing research into the Civil Service Commission, seeks disclosure of reports prepared by the Commission's Bureau of Personnel Management during the fiscal years 1969 through 1972. These reports, denominated "Evaluations of Personnel Management," are "the Commission's evaluation of the way the agencies' managers and supervisors are carrying out their personnel management responsibilities . . . ."3 The Commission prepares these reports in furtherance of its responsibility to inspect agency personnel action and to determine whether that action conforms to applicable rules and regulations.
Plaintiff's request for disclosure was denied by the Director of the Bureau of Personnel Management Evaluation on 15 June 1972.4 In a letter dated 17 August 19725 the Executive Director of the Commission, Mr. Rosen, sustained this decision, claiming that the reports were exempt from disclosure under the second, fifth, and sixth exemptions of the Freedom of Information Act. Plaintiff then filed an action in the District Court to compel disclosure. On cross-motions for summary judgment the District Court originally granted the Government's motion. On appeal this court reversed and remanded the case with directions that "the Government should undertake to justify in much less conclusory terms its assertion of exemption and to index the information in a manner consistent with Part III" of our opinion.6
On remand the Government, with plaintiff's acquiescence, filed nine representative reports from which identifying details such as agency names were deleted. A table accompanied each report correlating the page, paragraph, or sentence for which a claim of exemption is being made with the exemption being relied upon. The parties have agreed that the nine sample reports are representative of the documents sought and that any decision as to those documents will be applicable to all of the documents7 at issue.
After examining the sample reports, the District Court ruled8 (1) that the documents as a whole are not related "solely" to the internal personnel rules and practices of the various agencies and therefore are not exempt from disclosure under the second exemption; (2) that the "factual, investigative, and evaluative portions" of the documents "reflect final objective analyses of agency performance under existing policy" and "reveal whether the agencies' policies are being carried out," rather than "advisory opinions, position papers, policy recommendation, or other such intra-governmental documents concerned with the deliberative processes of the Commission," and therefore are not exempt under the fifth exemption; (3) that the documents contain easily severable recommendations from the Commission to the other agencies which are exempt from disclosure under the fifth exemption; and (4) that disclosure of the portions of the documents, including case listings, which refer to particular individuals by name or title would constitute a clearly unwarranted invasion of personal privacy, and therefore are exempt under the sixth exemption.
Those portions of the sample reports found not to be exempt from disclosure cover a wide range of topics: labor-management relations, position classification, equal employment opportunity, the merit promotion program, processing of personnel actions, incentive awards and the employee suggestion program, management's evaluation of employee performance, employment of Vietnam era veterans, employee training, manpower planning, employment of handicapped individuals, recruitment efforts, and implementation of reductions in force.9 The geographic coverage of the sample reports is equally diverse: two are nationwide reports on entire agencies, one is a regional evaluation, and the rest focus on particular installations of an agency.
Each of the reports concludes with a series of recommendations made by the evaluating team. These recommendations are variously labelled "Action Items," "Recommendations," or begin simply with the words "we recommend" or "we suggest." The District Court held those to be clearly recognizable, easily severable from the narrative portions of the reports, and exempt from disclosure.10 This portion of the District Court's order was not appealed.
Although we follow a slightly different reasoning process from that of the District Court, we affirm the results reached. II. Exemption 2
Exemption 2 provides that agency records "related solely to the internal personnel rules and practices of an agency" need not be disclosed under the Freedom of Information Act. Despite the seeming clarity of the exemption, the Senate and House Reports recommending passage of FOIA express conflicting views as to the scope of the exemption. The Senate Report stated:
Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.11
The House Report, on the other hand, declared:
2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all "matters of internal management" such as employee relations and working conditions and routine administrative procedures which are withheld under the present law.12
Virtually all of the courts that have considered the conflict between the two reports have held that the Senate Report most accurately reflects the intent of Congress.13 In addition, Professor Kenneth C. Davis in the 1970 supplement to his Administrative Law Treatise argues not only that the Senate Committee's statement "seems fully faithful to the words of the statute . . .," but also states that "no good reason for exempting 'internal personnel rules and practices' has ever come to my attention."14 For many of the reasons advanced by these authorities, we are of the view that the Senate Committee Report is authoritative and that Exemption 2 exempts from disclosure only routine "house-keeping" matters in which it can be presumed the public lacks any substantial interest.
First, it must be remembered that prior to the enactment of FOIA, the Administrative Procedure Act contained a public information section, Section 3.15 This section "was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute."16 The Supreme Court has noted that the prior section "was plagued with vague phrases."17 Among these phrases was one which exempted from disclosure "any matter relating solely to the internal management of an agency . . . ." For example, Congressman King of Utah noted on the House floor:
Federal agencies may limit the dissemination of a wide range of information that they deem related "solely to the internal management" of the agency. What are the limitations, if any, that are attached to this provision?18
In a similar vein, Congressman Moss of California, the Chairman of the House Subcommittee that considered the bill, pointed specifically to the phrase "internal management" and declared that the purpose of the bill was to replace the old statute with "workable standards . . . ...