Opinion for the Court filed by Circuit Judge WILKEY.
Concurring opinion filed by Circuit Judge LEVENTHAL.
This is a suit under the Freedom of Information Act (FOIA) 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 2
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 . . .."
Plaintiff's request for disclosure was denied by the Director of the Bureau of Personnel Management Evaluation on 15 June 1972.
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
After examining the sample reports, the District Court ruled
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.
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.
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:
The House Report, on the other hand, declared:
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.
First, it must be remembered that prior to the enactment of FOIA, the Administrative Procedure Act contained a public information section, Section 3.
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 . . [containing] specific definitions of information which may be withheld."
This is a standard, a guide, which an agency and then a court, if need be, can apply with some certainty, consistency and clarity. If we be wrong in finding this line of demarcation drawn by Congress, doubtless Congress will correct it — and hopefully this time, with both Houses in accord.
Reinforcing this interpretation is "the clear legislative intent [of FOIA] to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests."
The second major consideration favoring reliance upon the Senate Report is the fact that it was the only committee report that was before both houses of Congress.
Whether this entire scenario is true or not, it suggests the reason why we as a court viewing the legislative history must be wary of relying upon the House Report, or even the statements of House sponsors, where their views differ from those expressed in the Senate. As Professor Davis said: "The basic principle is quite elementary: The content of the law must depend upon the intent of both Houses, not of just one."
Interpreted in light of the Senate Report, we hold that the Personnel Management Evaluations here under consideration are not exempt from disclosure by virtue of Exemption 2. They relate not to such "house-keeping" matters such as parking facilities, lunchrooms, sick leave, and the like. The reports deal with the compliance of federal agencies with policies set down by statute, Executive order, and Commission regulations. They deal with such programs as equal employment opportunity, labor-management relations, and employment of Vietnam era veterans. These programs are now or have been the focus of legitimate public interest and attention.
III. Exemption 5
Exemption 5 was intended to exempt from the operation of the FOIA "those documents, and only those documents, normally privileged in the civil discovery context."
Appellant disputes this finding of the District Court and argues that the evaluative portions of the reports constitute an integral part of an ongoing, pre-decisional deliberative process because (1) they play a consultative role by which the agency evaluates and changes its personnel policies, rules, regulations, and standards, and (2) because they act as a basis for the exercise of the Commission's power to withdraw an agency's authority over its personnel affairs.
We can easily reject the second prong of appellant's position. Appellant made no such argument to the District Court in its cross-motions for summary judgment. Nowhere in the affidavits offered by the Government in the District Court nor in the nine sample reports is there any mention of the fact that the reports are to be used as part of a deliberative process within the Commission.
Turning to appellant's first argument, we note initially that it is not enough to assert, in the context of Exemption 5, that a document is used by a decisionmaker in the determination of policy. Unevaluated factual reports or summaries of past administrative determinations are frequently used by decisionmakers in coming to a determination, and yet it is beyond dispute that such documents would not be exempt from disclosure.
Of considerable importance to our determination here is that we have been along this road once before. We remanded to the trial court with instructions as to the Government's burden of showing specifically the character of the documents in issue. On the record we now have from the District Court, the Government attempted to make no clear distinction between the facts obtained as a result of the surveys made by the Commission, to enable the facts to be distinguished from the evaluative, interpretative, or final conclusions of the Commission. Rather, the Government sought to lump all of the reports written by the Commission — facts, interpretation, evaluation, and recommendations — into one mass to be protected. Perhaps there are no true distinctions to be made. Perhaps the "facts" as observed and recorded by the Commission's investigative staff differ little from the "interpretative" or "evaluative" material. If this is the situation, then the Government has sought to protect too much; it has failed in its obligation to classify and differentiate meaningfully, for certainly not all of this can be characterized as part of the deliberative process.
The Government has thus failed to carry its burden of proof on the issue. Two of the affidavits, those of Mr. Rosen and Mr. Lafferty, merely asserted in conclusory terms that Exemption 5 was applicable to evaluative portions of the reports, e. g., "It is my belief that the
Looking at the evaluative portions of the sample reports themselves, we note nothing in them to suggest that they are anything other than "final objective analyses of agency performance under existing policy." While the Commission's evaluating team probably hopes that its analyses will have a salutary effect on agency personnel practices, the evaluative reports appear to be informational in nature. They provide the raw data upon which decisions can be made; they are not themselves a part of the decisional process.
The Government appears to argue that this entire process of management appraisal, evaluation, and recommendations for improvement is a seamless whole, that it is in its entirety a deliberative process, and that it is this process which the Government seeks to protect as an ongoing continuous affair. On this view, starting when the Commission's staff initiates a survey of an agency, when it notes down significant facts of its operation, compares these with personnel and other management directives, evaluates what has been observed, until it formulates these evaluations into conclusions which are usually put as recommendations for improvement to the surveyed agency — all would be a part of a deliberative process. As such it would be protected under Exemption 5; to make any of it subject to disclosure is to do violence to the protection written in Exemption 5.
We cannot accept this. If we consider this entire continuous ongoing process of management appraisal, beginning with the action of the Commission's staff inquiries through the final recommendations to the subject agency and its final action thereon, as a deliberative process, then surely we would be interpreting Exemption 5 to protect too much.
Thus, the Government's characterization of this mass of material it seeks to protect as the "deliberative process" would result in a huge mass of material being forever screened from public view because the administrative bureaucracy had never reached a "final" decision on the management matters involved. The public has an interest in decisions deferred, avoided, or simply not taken for whatever reason, equal to its interest in decisions made, which from their very nature may more easily come to public attention than those never made.
We are not saying that a "final decision" is necessary for there to be a "deliberative process" which is protected by Exemption 5. Rather, we cite the absence of any assured final decision as indicative of the amorphous nature of the mass of information the Government seeks to protect, i. e., the failure of the affidavits relied on to come to grips with and define what it is out of this mass of documents that the Government considers the "deliberative process" and thus entitled to protection.
We consider Exemption 5 as basically a codification of the common sense-common law privilege, i. e., the recognition that the Government cannot operate in a fish bowl. By "common sense-common law privilege" we mean what is usually referred to as "executive privilege," shorn of any constitutional overtones of separation of powers. As Attorney General Levi has wisely observed, "[T]he term `executive privilege' . . . fails to express the nature of the interests at issue; its emotive value presently exceeds and consumes what cognitive value it might have possessed. The need for confidentiality is old, common to all governments, essential to ours since its formation."
Exemption 5 is designed to protect subordinates' advice to superiors, it is designed to protect a true deliberative process usually leading up to final decisions. If we construed Exemption 5 as broadly as the Government seeks to do here, we would go a long way toward undercutting the entire Freedom of Information Act. There is a huge quantity of amorphous management improvement activity in every agency which would be protected by an equivalent rationale, if we held that the evaluation reports of the Commission and the mass of facts behind them in this case were so protected.
The affidavits relied on by the Government not only fail because they are conclusory; the affidavits fail to carry the Government's burden of proof here because at no place do they define, explain, or limit the "deliberative process" which the Government seeks to protect.
We decline to hold on this record that there is a deliberative process, beginning with the Commission's staff inspection of the subject agency and continuing to a definitely assured "final" decision by the other agency, which can invoke the protection
The present case has been pending in administrative channels and before the courts for over three years. After this long period of time we are in a position to affirm finally a disposition that grants plaintiff most of the records he requested of the Commission.
Congress has ordered that actions brought under the FOIA be "expedited in every way."
LEVENTHAL, Circuit Judge (concurring):
In considering this case, I have devoted particular reflection to exploring the proper scope of exemption 2, which 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 (FOIA). The legislative history is obscure, and previous decisions less than probing. I find there is more scope than the majority contemplates for exemption 2. But I conclude that the Civil Service Commission studies at issue here must be disclosed because they relate predominantly to evaluation of government-wide personnel policy rather than policy implementation internal to an agency.
A. Legislative History. Both the legislative history and the commentary on the history of the (b)(2) exemption seem confused.
There is a marked difference between the Senate Report and the House Report. The Senate Report provides:
The House Report provides:
A number of decisions sound the theme that the Senate Report is stronger because the Senate passed the bill before the House issued its report, and therefore the "surer indication of congressional intent is to be found in the Senate Report which was available for consideration in both houses."
The real question is, which report better fits the language of the statute, and purpose of the law as best the courts can discover that purpose. Putting aside the dates of the reports, it may fairly be said that in general the Senate Report places "emphasis on the fullest responsible disclosure."
As to exemption (2), all the Senate Report says is that certain items are exempt. No one can fairly doubt that these particular items are exempt under that provision. But the Senate Report cites these as illustrative, not definitional or exclusive. Nor is an intelligible principle of construction supplied in the House Report. It says that under exemption 2 there would be an exemption
B. Analysis. As demonstrated in the foregoing discussion, neither previous cases nor legislative history defines the core meaning of the (b)(2) exemption. When there are choices to be made in the application of a core principle, it may be helpful to invoke general guidelines, such as that the Information Act's spirit favors disclosure and that exemptions are to be strictly construed.
The public disclosure concerns of Congress were first crystallized into law in the APA, which in § 3
The FOIA was meant to abolish the old "internal management" exception, which apparently operated as a license
However, the legislature did decide to retain some part of the exception — recast in (b)(2) as "matters related solely to the internal personnel rules and practices of an agency." This apparently signified a determination that the public interest would not be furthered by a requirement of public disclosure of certain "internal" matters. The pertinent policy has a different quality from the policies underlying exceptions such as those for national security secrets, or discussion of policy matters, or pending cases, as to which there is a high requirement of confidence that is closely confined. Personnel rules and practices are better known than that, and not generally truly "secret." But there is still a legislative inclination that while the public has a right to know all the activities of an agency that bear on its intentions concerning outsiders, whether formal or informal interpretations and instructions, when purely "internal" matters are involved there is a combination of diminished valid interest in the outsiders relative to the administrative burden imposed, plus a recognition that management of government needs some elbow room in developing and revising internal practices, so as to achieve efficiency, without becoming embroiled in continuous public discussion. The problem is to give effect to both of these policy goals without rendering either of them nugatory by a too broadly sweeping construction of the statutory provisions.
The Civil Service reports at issue here have been specifically authorized by either statute, Executive Order or government-wide Civil Service Commission regulation.
In some attenuated sense, virtually everything that goes on in the Federal Government, and much that goes on outside of it, could be said to be "related" through some chain of circumstances to the "internal personnel rules and practices of an agency." The potentially all-encompassing sweep of a broad exemption of this type undercuts the vitality of any such approach. The legislature added the qualification that limited the exemption to items "relating solely" to internal personnel practices. Various opinions have relied on "solely" as a means of limiting the range of the (b)(2) exemption.
It seems unlikely that the (b)(2) exemption is applicable only to the kind of routine or trivial agency personnel policies and practices itemized in the Senate Report. But even so the exemption is limited to predominantly "internal personnel rules and practices of an agency." In contrast, the Civil Service Commission's responsibility for federal personnel policy is government-wide, not oriented internally within an agency. This construction of the exemption is not only literally accurate, but meaningful in a practical and a policy sense. The reports sought here are not evaluations of the Commission's own personnel practices, but are instead concerned with evaluating the implementation of government-wide personnel policies established by statute, executive order and regulation. Their primary function is the effectuation of the watchdog and oversight duties assigned to the Commission by Congress and the President. This mandate is the substantive on-line policy responsibility of the Commission; shaping and implementation of personnel policy is its primary duty, not a necessary but secondary problem incidental to implementing executive policy in discrete areas of substantive national regulation.
The reports are therefore not limited "solely" or "predominantly" to the internal practices of "an agency." Thus, the Federal Personnel Manual, issued by the Commission for government-wide application, could certainly not be withheld from the public in reliance on exemption 2;
Personnel evaluations undertaken within an agency fall within the precise terms of the (b)(2) exemption. The fact
C. Precedents. Perhaps a word should be said about precedents, although in my view they are for the most part not on target. Cases that have previously analyzed the applicability of exemption 2 have done so largely in the discrete context of deciding disclosability of government manuals. These manuals set guidelines for employees carrying out agency policies applicable to the public. The courts have ordered disclosure of "secret law" as within the disclosure mandate of 5 U.S.C. § 552(a)(2)(c) ("administrative staff manual . . . that affect[s] a member of the public"), while protecting agency techniques that if disclosed would materially lessen the agency's effectiveness vis-a-vis the public it regulates.
Two cases have dealt with the exemptability of specific aspects of personnel policy. Hicks v. Freeman, 397 F.2d 193 (4th Cir. 1968) cert. denied 393 U.S. 1064, 89 S.Ct. 717, 21 L.Ed.2d 707 (1969) relies on the language of (b)(2) and on 44 U.S.C. § 305(a) in connection with the Civil Service Commission's and Department
We prefer to view the Commission's recommendations as the seed for deliberations by the subject agency itself, and thus protected by Exemption 5, as the trial court so found.
In Grumman it was clear that neither the Regional Board decisions nor the decisions of the panel of the National Board had any effect whatsoever until they were considered by the full Board, and the full Board of five members then took action. So, in Grumman we find a deliberative process well defined from the start, with a final decision by the full Board obligatory after one of the Regional Board or panel decisions. This is not true here. As indicated in the text, no final action by the surveyed agency is guaranteed. While the recommendations of the Civil Service Commission may serve as a seed for a deliberative process resulting in such final decision which would be public, there is no guarantee that this necessarily will take place. The prior work of the Commission is to accumulate the factual data, on which the Commission does make its recommendations, which we and the trial court hold protected, but we also hold that the facts accumulated are not within Exemption 5.
In Washington Research a definite decision was called for in each individual case as to whether a person or institution applying for a grant actually received a grant. A decision, grant or denial, was made in each case. So, the evaluative reports there were part of a single deliberative process assuredly leading to a decision which would be made public.
The same can be said of Montrose Chemical, which is even more clearly distinguishable. There the part of the deliberative process we held to be protected was the evaluative summary of the whole vast record, made on the specific direction of the Administrator by his aides in order to assist him in making a decision which he was obligated to make, and did make.
Furthermore, in both Montrose and Washington Research the basic factual data was available to the public. Only the evaluative interpretative summaries were held by us to be protected. Here none of the factual data, this mass in 17 five-drawer file cabinets accumulated by the Civil Service Commission in its survey, would be available to the public in any other form if the Government prevailed.