BAZELON, Chief Judge:
This appeal involves the meaning of the requirement under the Freedom of Information Act that documents be "identifiable" before disclosure is required.
Immediately before the hearing for preliminary relief in the District Court, but after the period allowed by the Commission for comments on the rules, the Commission filed a motion and memorandum alleging that "circumstances" had changed, proffering a number of the documents theretofore denied, and requesting dismissal or summary judgment.
The District Court denied the motion for preliminary relief and no appeal was noted.
We reverse. Summary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.
Measured against this requirement, summary judgment was improper. Some of the facts necessary to the Commission's defenses find no support in the evidence and others of those facts are directly contradicted by evidence elicited by the NCTA.
I. The Rulemaking Proceeding
On February 19, 1970, the Federal Communications Commission released a Notice of Proposed Rule Making which set forth an alteration—and substantial increase—in its license "fee schedule."
The result was a predictable storm of protest. At first directed at the Commission's power to impose the fees, the attack eventually shifted to the way in which the proposed scheme would allocate the costs of regulation among the regulated industries and their constituent members. In response to the latter, the Commission issued a Supplemental Notice in March of 1970.
Taken together, the February and March notices asserted that the proposed schedule would assess each Commission-regulated industry in accordance with a formula that may be briefly described. The cost of operating each office with direct responsibility for regulating an industry was computed. Next, that part of the cost of each office without a direct regulatory responsibility that could be directly traced to a particular industry was charged to that industry. Then all remaining costs were lumped together and each was assigned a share of that cost equal to its percentage share of the directly assigned costs. Finally, the sum of these items, called the "cost factor," was adjusted to reflect certain intangibles, such as the "value to the recipient" of the privileges granted it by the Commission.
Without data concerning the Commission's costs, it is not possible to determine the basis upon which the Commission allocated its direct and indirect costs among the regulated industries. Without disclosure of the final amount the Commission intended to recover from each industry, it is not possible to determine what, if any, noncost adjustments were made and whether the final schedule had any relation to the cost allocation. And without a definition and quantification of "value to the recipient"
The NCTA, as the chief trade association of the CATV industry, wished to file comments concerning the proposed fee schedule. Faced with the opaque notices just described, it requested an opportunity to inspect several categories of documents that the NCTA believed the Commission would have in its files.
II. The Documents Sought by the NCTA
As a consequence of the Commission's midnight production of most of the requested materials, after the close of the rulemaking but prior to the first hearing in the District Court, only three of the categories remained to be considered by the Court.
A. The Two "Cost Factor" Categories
The February Notice stated that the total cost of regulation was that stated in the Commission's budget for the relevant year.
Access to the first group of documents would permit the NCTA to check the accuracy of the Commission's breakdown of its costs. Access to the second would enable it to determine which parts of the budget had been assigned to the cost of CATV regulation, and compare them with the budget breakdown to determine whether all of the costs assigned to CATV were consistent with the budget. By adding together the costs listed under the second category, the NCTA would be able to challenge both the fairness of the charge and the accuracy of the Commission's addition.
In response to the first item, the Commission provided the NCTA with a copy of its budget "request," a document prepared for the Bureau of the Budget. The "request" itemized the Commission's proposed expenditures for fiscal year 1971, but requested fifty percent more money than the Bureau finally cleared for submission to Congress as the "budget." The Commission produced nothing in response to the second item.
At the hearing in the District Court, the Commission produced the head of its budget office for examination by the NCTA. Asked for an explanation of the Commission's procedures, he testified that he had prepared the budget "request" from a variety of documents submitted by the Commission's various organizational units, in accordance with a memorandum of instruction from the Commission itself. He further testified that these documents were still in the possession of the Commission, but he
The second request was for the documents that supported the assignment of part of the Commission's budgeted costs to CATV. The Commission's witness testified that there were no such documents. He said that he had compiled the relevant data from the budget by using yellow sheets of paper and adding machine tapes, and had preserved only the final totals. These, he testified, were the figures included in the March Notice. The NCTA avowed that it could not duplicate the Commission's figures by this means. While we can sympathize with this statement, for the reason that there appear to be contradictions in this account of the Commission's procedures,
B. The "Value to the Recipient" Category
The Commission produced the official who had originally refused the NCTA's request for inspection to testify on the request for "documents, listings and records used to determine the `value to the recipient' of the privileges granted" by the Commission. Adhering generally to the affidavit he had filed in support of the motion for summary judgment, this witness testified that the Commission itself, after receiving from its budget office a figure for the total "cost factor" for each industry, worked from this to obtain the fee schedule by taking account of statutorily designated factors, including "value to the recipient."
He stated that, as set forth in his letter to the NCTA on behalf of the Commission, the Commission had relied upon "the knowledge and financial aspects of the communications industry acquired over the years from vast numbers of confidential financial statements, confidential staff memoranda, and various trade publications." While asserting that the Commission had only relied on them "in part" for its noncost adjustments, he did testify that the Commission still had these documents. He added that the NCTA had been denied them because the request "was so indefinite that it was difficult to identify and assemble without totally unreasonable expenditure of Commission manpower." Also, he said, some of the documents were confidential. Elaborating with respect to the internal memoranda, he said:
But, since the NCTA could hardly comment on the adjustments for "value to the recipient" without knowing the comparative status of other assessed industries, the NCTA's request seems more likely to encompass all of the Commission's supporting documents. And, since the actual wording of the request included all of the documents, the question whether they must be produced remains.
III. Disposition by Summary Judgment
In response to the Commission's motion for summary judgment, the District Court ordered the Commission to produce witnesses who could testify concerning the Commission's procedures and whether documents existed within the categories requested by the NCTA. It then required the NCTA to examine those witnesses, identify the documents it sought, and show that they were not exempt.
We think this procedure was based on an erroneous construction of the Act's requirements. The Commission could not rest on the blanket allegations of compliance, unidentifiability, and exemption that it made in its motion for summary judgment and supporting affidavit. Nor did the testimony elicited by the NCTA supply the missing evidence. Rather, it further undercut the Commission's position.
The motion for summary judgment should have been denied, and the Commission should have been required to go on and prove the missing elements of its defenses as set forth below. On remand this can be done either in support of a renewed motion or at a trial.
A. Identifiable Records
Apparently ignorant of the Commission's internal operations and filing system, the NCTA identified the requested documents in terms of the functions they had served in the Commission's development of the proposed fee schedule. Thus, before the Commission could comply with the request, it would have to identify the documents more specifically, as, for example, by name and file number. To do this the Commission would have to retrace the steps taken in the development of the rulemaking notice. The Commission has steadfastly refused to undertake this task, and the ruling of the District Court upheld this refusal.
The Freedom of Information Act does not require that a person identify records by providing the agency with a complete description down to the last detail of title and file number. It states:
This language places part of the responsibility for identifying the records on the agency itself. The responsibility of the person requesting the records is that he provide sufficient information to permit the agency to accomplish this duty.
The legislative history provides us little added guidance, suggesting only that we look to our decisions construing the discovery rules applicable in civil cases and advising that, while requests must be "reasonably identifiable," the requirement should not be used as a device to withhold records.
Our earlier cases have taken a pragmatic approach to this problem, attempting to draw lines that comport with the overall purposes of the Act.
In Bristol-Myers the District Court refused to enter an order compelling the Federal Trade Commission to produce documents described and identified by the Company in terms of the function that they served in the development of proposed rules regulating the advertisement of certain drugs. The basis for that ruling was a narrow interpretation of the identifiability requirement in the Act:
We reversed, and pointed out:
The Federal Communications Commission now argues, as it did in its motion for summary judgment, that this language is inapplicable in the case before us for the reason that it did not "rely on" or "refer to" any documents in its February and March notices, but to its "knowledge" acquired from documents.
We think that the Commission misreads both our opinion in Bristol-Myers and the underlying purpose of our holding there. We did not impose a requirement that the notice directly refer to or rely on the documents to be disclosed. In fact, the request in Bristol-Myers did not differ from the request involved here:
The scope of the agency's responsibility to identify its own documents may be further delineated by examining a second request by Bristol-Myers, one which we said might present a plausible claim of unidentifiability by the Federal Trade Commission:
This request undoubtedly extended beyond the documents that the F.T.C. itself possessed. Moreover, it was not apparent that the Commission had at any time either indexed its files in a way that would enable it to locate what it did have, or that it had ever brought the materials together for a common purpose or otherwise acted on them as a group. Thus, the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency.
Once the request has been made as specific as the agency's public statements permit, Bristol-Myers teaches: (1) If the agency has previously identified a class or category of documents in the normal course of its affairs, it must produce them in response to a request phrased in terms of the class or category. (2) If the agency has never segregated that class or category, production may be required where the agency may be able to identify that material with reasonable effort.
Even where an agency has previously identified a class of materials, the passage of time may work such changes in the agency's personnel and records that production requires that identification begin anew. In such circumstances, production may be required only if the task imposed on the agency is not unreasonable.
Where rulemaking proceedings have taken place, the agency has, by definition, already identified its supporting
Finally, Bristol-Myers establishes that the specificity with which the agency has identified documents in its public statements is relevant only to the requirement that the request be as specific as reasonably possible. It is not relevant to the question whether the agency can be required to identify and allow inspection of the requested records under section 552(a) (3).
In the present case the Commission has refused either to state that it did not make use of a mass of financial documents or to identify them. In fact, the District Court openly invited the former response from the Commission witnesses, but they repeatedly asserted that there was a documentary basis for the Commission's action, although it had not been identified in the notices of rulemaking.
The NCTA phrased its request as specifically as the Commission's public notices reasonably permitted. Accordingly, the Commission should have been required to identify, at least by relevant classes and subclasses, all the documents that it had used to support its proposed rule. Then it should have been required to establish which of those documents were exempt from disclosure under the applicable provisions of the Act.
Much of this has now been done, albeit by the NCTA through its examination of Commission staff members. But there remains a substantial factual issue as to whether the Commission relied on trade publications and confidential reports, rather than vague concepts of the profitability of its regulated industries, in preparing its fee schedule. On remand, the Commission should be required to specify, by relevant category and subcategory, which—if any—of these materials it used.
For the future we think that these matters should be settled through the discovery process as much as possible. The civil rules governing pretrial discovery provide ample tools for use in compelling the agency to identify and disclose the documents it has that fall within the class or category requested.
Because of the confusion involved in identifying the documents that existed within the scope of the NCTA's request in this case, the District Court was entirely diverted from the necessary inquiry into the exemptions now claimed by the Commission. Indeed, the oral ruling of the District Court denied the NCTA's entire request on the ground that the "yellow work sheets" and adding machine tapes used to prepare the "cost factor" from the budget were exempt. Yet, so far as we can determine, these were the only "documents" that the hearing showed not to exist.
On the record before us, we perceive two possible exemptions that might justify withholding part of the material that the Commission admits it possesses. Under the applicable case law, however, neither would justify nondisclosure on this record, and the Commission must be required to establish the exemptions on the remand.
1. Intra-agency Memoranda
The Commission asserted below that inspection of the memoranda used in the preparation of the budget "request" and the memoranda used to determine the "value to the recipient of the privileges granted" could not be ordered. It pointed to section 552(b) (5) of the Act, which exempts "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."
Both our own cases
This distinction is particularly important here, where the memoranda at issue relate to the development of a fee schedule said to have been derived from cost data and collections of financial reports. The Commission must show that any factual matter in the memoranda is so "intertwined with policymaking processes" that it would violate the purpose of the exemption to disclose it.
Mink went on to point out that the District Court may use a variety of tools in making this determination, including, but not limited to, in camera inspection of some or all of the documents.
It is equally unclear whether the "confidential financial statements" that the Commission allegedly used in determining "value to the recipient of the privileges granted" fall within the scope of the Act's exemption for "trade secrets and commercial or financial information obtained from a person and privileged or confidential."
In those cases in which the party that filed the statement is so large or unique that disclosure of the data itself would destroy the confidentiality of that party, it is conceivable that total nondisclosure would be justified. But the Commission's witnesses testified that there are many thousands of such statements filed over a long period of time, and it seems highly improbable that the Commission will be able to establish that they must all be withheld.
This, too, will be an appropriate subject for the District Court on the remand, armed with the flexible tools cited by Mink. In particular, the Court should take note of the Supreme Court's suggestion that representative samples of the statements be examined, rather than the thousands that apparently exist.
Reversed and remanded.
FootNotes
The rules were subsequently adopted on July 1, 1970, 35 Fed.Reg. 10,988, and were upheld on review, Clay Broadcasting Corp. v. FCC, 464 F.2d 1313 (5th Cir. 1972). That, of course, does not affect the NCTA's claim, for the Act requires that the materials be made available to "any person."
The Commission made no attempt to set out its interpretation of this term, or to specify what monetary adjustments resulted from its use.
Finally, the letter stated generally:
Joint Appendix 49-51.
The Commission, however, took approximately 23 days to issue a total refusal. Moreover, it relied in part on a claim that some of the documents were the property of the Bureau of the Budget, yet it violated its own regulations mandating that in such a case the request be forwarded to the appropriate agency. See 47 C.F.R. § 0.451(b) (3) (1972).
We find all of this particularly troublesome in view of the fact that the Commission produced the documents requested in a majority of the NCTA's categories before moving for summary judgment.
This explanation seems inadequate because the March Notice included separate amounts for the operation of offices not directly responsible for regulating any particular industry. This seems to indicate that the $1,145,400 excluded unassigned costs.
The context in which the phrase appears destroys any support these words appear to provide for the Commission's argument that it has no independent responsibility to identify the documents. The full statement is: "The records must be identifiable by the person requesting them, i.e., a reasonable description enabling the Government employee to locate the requested records. This requirement of identification is not to be used as a method of withholding records." Id. (emphasis added).
The legislative history indicates that the standards to be applied should correspond generally to the discovery rules applicable to civil suits in the District Courts. See id. The 1970 amendments to Rule 33, Fed.R.Civil Proc., are instructive in this regard. They establish an alternate procedure for answering interrogatories that require the responding party to examine its own records. The responding party now may make the records available for inspection instead of searching out the information himself.
But this rule does not exempt the responding party from all responsibility for identifying documents in his own files. Only if the requesting party can perform that task with equal facility can he be required to cull the responding party's files. In all other cases, even when identification requires the creation of new classes, the responding party must do it. See Budget Rent-A-Car of Missouri, Inc. v. Hertz Corp., 55 F.R.D. 354 (1972); 4A Moore, Federal Practice & Procedure, Advisory Committee Note, Amended Rule 33, ¶ 33.01[6], at 33-13 (1971).
This limited scope of review does not exclude review of the underlying facts and assumptions upon which the agency acted. The agency has a responsibility to maintain its ability to produce this information at least until final adjudication of the rule.
This approach was taken in Grumman Aircraft Engineering Corp. v. Renegotiation Board, C.A., 325 F.Supp. 1146 (D.D. C. 1971), on remand from this court's decision, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970).
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