Henry C. Schwaner v. Department of the Air Force

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. § 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 § 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 AU for the agency — had asked for names and addresses of the AUs 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 AUs as to whom the agency had turned over nothing. (As an AU 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’s 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 circumvention of agency regulation, Founding Church of Scientology, 721 F.2d at 831, not that the underlying rules were too trivial to justify the nuisance of collection and disclosure. See Rose, 425 U.S. at 369-70, 96 S.Ct. at 1603-04. Judicial willingness to sanction a weak relation to “rules and practices” may be greatest when the asserted government interest is relatively weighty.

The government also obliquely invokes the well-chewed legislative history of exemption 2, in which the Senate and House reports reflect, as is well recognized, a potentially serious conflict. See id. at 362-70, 96 S.Ct. at 1599-03. The government characterizes the Senate Report as supporting exemption of all “trivial administrative matters.” Brief for Appellee at 12. As did its treatment of the cases, this wrenches language out of context. The Senate Report said only:

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.

S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965) (emphasis added). As the examples were all of trivial rules, interpreters have read the report as reflecting an intent to protect only such trivia. See Rose, 425 U.S. at 365, 369-70, 96 S.Ct. at 1601-03. The House Report, by contrast, appeared to reflect a readiness to allow disclosure of all trivia (rules or not) and to withhold only more important rules and practices:

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.

H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966). It appears that the conflict is to be reconciled by protecting trivial rules and practices, following the Senate, and nontrivial ones whose disclosure would circumvent agency regulation, following the House. See Rose, 425 U.S. at 369, 96 S.Ct. at 1603; Founding Church of Scientology, 721 F.2d at 830 n. 4 (2d paragraph). None of this in the slightest supports the idea that all trivial information may be withheld simply because it manifests an agency practice of collecting the information.

The government draws another argument from the legislative history. Relying on the Senate language for the proposition that it could withhold “the parking, dining and sick call arrangements” for the junior enlisted personnel at Bolling, it claims it must be free to withhold “the addresses of the units to which they are assigned.” Appellee’s Brief at 13. Thus if parking information may be withheld because it reflects the agency’s parking assignment rules, duty assignment information may be withheld because it reflects duty-assignment practices.

Of course the Senate report does not say that any information as to parking arrangements may be withheld under exemption 2; it says only that “rules” as to it and kindred trivia may be withheld. The government’s argument is therefore that a list of individual parking assignments is related to — casts a significant light upon— parking assignment practices, and is with-holdable, and that a list of duty addresses is similarly related to duty assignment practices, and is equally withholdable.

In a broad sense, of course, any list sheds some light on a rule or practice. It necessarily reflects someone’s decision that the enumerated persons or things fell within some defining term, and any term implies at least a practice; if the conduct connoted by a word were unique, it would mean nothing unless accompanied by, say, pictures or recordings of the event. But lists do not necessarily (or perhaps even normally) shed significant light on a rule or practice; insignificant light is not enough.

But even if a list of parking assignments were exempt as so closely related to agency parking rules (a proposition we reject), that would not sweep up the information sought here. The request is for names and duty addresses, not unit assignments.¹ The Air Force obviously follows “practices” in making assignments (presumably matching talent with need), and assignments are performed at specific locales. But it does not follow that the Air Force has a practice, in the conventional sense, of relating specific talents to specific locales. A list of people having the U.S. Courthouse, 333 Constitution Avenue, Washington, D.C., as their duty addresses says virtually nothing about government practices in staffing the federal courts. It is a manifestation of that practice only in the most tenuous sense.

To stretch the word “related” as the government proposes would be to fall into precisely the error against which Judge Leventhal cautioned in Vaughn, and make the exemption “all-encompassing.” 523 F.2d at 1150. Perhaps the solution is to extend his concept of “predominance” to this issue as well as the problem of inter-nality. In any event, there is a chasm between the case summaries in Rose, marking out the contours of the Air Force Academy’s Honor and Ethics Codes, and a list of personnel and their duty addresses. For the latter, the only links to government practices are the link to data-collecting practices, which is shared by virtually all government information, and the link to duty assignment rules and practices, which is tenuous and indirect. These are not enough.

A generic internal trivia exemption might be sound policy. It would, however, entail swarms of court decisions identifying and “weighing” the public interest in disclosure, a task for which courts are not especially well suited. See United States Dep’t of Justice v. Reporters Committee for Freedom of the Press, — U.S. -, 109 S.Ct. 1468, 1483, 103 L.Ed.2d 774 (1989) (acknowledging concern over case-by-case balancing under exemption 7(C)); cf. Crooker, 670 F.2d at 1074 n. 60 (“Nor is it for this court to decide which disclosures are in the public interest.”). Of course once the government gets over the threshold test under exemption 2 a court must face that. But to dilute the threshold by ignoring the words “rules and practices” would greatly increase the frequency of such decisions. In any event, whatever the case for such an exemption, Congress did not enact it.

Finding the requested list not to be “related solely to ... [agency] rules and practices,” we need not reach the second step of the analysis, which here would entail the weighing of the “public interest” in disclosure against the government’s interest in avoiding the burden of producing the data. See Rose, 425 U.S. at 369-70, 96 S.Ct. at 1603. Accordingly, we must reverse and remand for further proceedings consistent with this opinion. Repugnant as it may seem to order disclosure to an insurance agent who seeks only a pool in which to fish for commissions, the principle of disregarding the identity of the requester, see Reporters Committee, 109 S.Ct. at 1480, means that only by allowing Schwaner’s claim can we keep exemption 2 within its proper confines.

So ordered.

1 . Schwaner’s request was primarily for a list of names and addresses. Though the district court stated that he wanted these "alphabetically arranged on a unit basis,” Schwaner, 698 F.Supp. at 4, he in fact asked for this only in the alternative, requesting the addresses be arranged “either alphabetically but preferably alphabetically on a unit basis.” Defendant’s Statement of Material Facts As To Which There Is No Genuine Dispute ¶ 1.