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CONSUMERS UNION OF UNITED STATES, INC. v. VA

July 10, 1969

CONSUMERS UNION OF UNITED STATES, INC., Plaintiff,
v.
VETERANS ADMINISTRATION; W. J. Driver, Administrator of Veterans Affairs of the Veterans Administration; Francis E. Blalock, Chief, Paperwork Management Division, Medical Administrative Service, Department of Medicine and Surgery, Veterans Administration; and H. M. Engle, M.D., Chief Medical Director, Department of Medicine and Surgery, Veterans Administration, Defendants


Croake, District Judge.


The opinion of the court was delivered by: CROAKE

CROAKE, District Judge.

MEMORANDUM

 Consumers Union of the United States, Inc., brings this action to compel the Veterans Administration (VA) and several of its officials to make specified records of the VA's hearing-aid testing program available to it. Under our reading of the Freedom of Information Act, 5 U.S.C. § 552, Congress has not exempted these records from its broad mandate that public records be available to the public. Since, however, the equity jurisdiction of this court has been invoked, we have weighed the benefits and dangers of disclosure and will compel the VA to make only the records of "raw scores" for the 1968 contract year available.

 Consumers Union is a non-profit corporation which purchases consumer products in the open market, tests them, and reports its findings and evaluations in Consumer Reports, a monthly magazine with a circulation of about 1 1/2 million.

 The VA hearing-aid testing program was initiated in 1955 as a means of evaluating hearing aids for procurement and distribution to veterans. The program has remained about the same since its inception. Invitations to bid are sent to hearing aid manufacturers some six months before the start of a "contract year," a period starting on August 1 preceding the calendar year. Companies which submit bids must provide the VA with samples. The samples are tested by methods described in the invitation to determine their acoustical and electronic characteristics. The VA converts the raw scores from the tests into a single "quality point score" for each model submitted; the "scoring scheme" - mathematical formulae utilizing statistics - is used to compute the quality point scores. *fn1" Using the quality point scores, the prices, and research needs, the VA selects the models it wants to purchase and negotiates contracts for them.

 The policy of the VA, as stated in the invitations to bid, has been to limit access to information about the testing program. The key provision in the invitations for the 1968 contract year stated:

 
"The results of these tests and the evaluations based thereon are primarily for VA use only, without regard to any other governmental or private agency. It must be realized, however, that the Administration of Veterans Affairs may be required to release hearing aid test data, identified by the manufacturers' names to other agencies within the Federal Government structure. If this should occur, the Veterans Administration would no longer retain control over release of the test data to the public." *fn2"

 In accordance with this policy, the scoring scheme and quality point scores have not been disclosed to anyone. Under another provision of the invitations, the raw scores have been furnished to each manufacturer for his own models, but to no one else. *fn3" The testing methods used by the National Bureau of Standards are included in the invitation and were made available to the plaintiff.

 In September of 1967 Consumers Union requested the raw scores, scoring schemes and quality point scores for the prior two contract years; their request was later changed to cover contract year 1968 only. After exhausting the administrative procedures required by VA regulations *fn4" and not receiving the records, this action was commenced.

 Consumer Union's request for VA records came in the wake of the passage of the Freedom of Information Act. The key portion of that Act, now codified, is as follows:

 
* * * each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. * * * *fn5"

 The purpose of the Act, seen in the statutory language and the legislative history, was to reverse the self-protective attitude of the agencies under which they had found that the public interest required, for example, that the names of unsuccessful contract bidders be kept from the public. *fn6" The Act made disclosure the general rule and permitted only information specifically exempted to be withheld; *fn7" it required the agency to carry the burden of sustaining its decision to withold information in a de novo equity proceeding in a district court. *fn8" Disclosure is thus the guiding star for this court in construing the Act. Because portions of the Act are patently ambiguous, its illumination will be most useful.

 The VA has not seriously contested that the raw scores, scoring scheme, and quality point scores for contract year 1968 are not "identifiable records." The statutory question therefore is whether they are exempted. Although several cases that construe exemptions have been reported, no similar case to this one has been decided. We will discuss each exemption in turn at length, hoping to resolve some of the problems of interpretation. *fn9"

 STATUTORY EXEMPTIONS

 Exemption (2)

 
This section does not apply to matters that are * * * (2) related solely to the internal personnel rules and practices of an agency.

 The difficulty posed by this exemption could have been eliminated in drafting the Act, for it is a very simple one. Do the adjectives "internal" and "personnel" modify the noun "practices" as well as the noun "rules"? From a grammatical point of view, it is probable that the Congress intended both nouns to be modified by the adjectives for otherwise "the" would have been inserted before "practices." Since an article is a slim thread upon which to hang an interpretation, we look to the legislative history for clarification.

 Senate Bill 1160 *fn10" passed in the Senate on October 13, 1965. It was accompanied by the report of the Judiciary Committee which explained exemption (2) in this way.

 
Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of those 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. *fn11"

 The Senate apparently intended to exempt only internal personnel rules and internal personnel practices. In the House, S. 1160 was studied and reported on by the Government Operations Committee before passage in June of 1966. Attempting to clarify the second exemption, the House Committee wrote the following:

 
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. *fn12"

 This court is thus confronted with a situation where the Congress was of two minds in passing legislation and where the second house to act chose to express its intent in a committee report rather than in the statute whose language had already been defined by the other house.

 The Assistant United States Attorney representing the Veterans Administration cites a memorandum by the Attorney General *fn13" which this court has carefully studied. The Attorney General's conclusions do not have the weight of a contemporaneous administrative interpretation since he is not charged with administering the Act. *fn14" He recognized moreover that definitive resolution of some ambiguities - perhaps those presented here - would have to await court rulings. *fn15" The analysis of exemption (2) by the Attorney General fails to discuss the Senate Report.

 To construe exemption (2), this court follows the only reported decision discussing it and accepts the Senate reading of the statute since its report was before both houses of the Congress. *fn16" This interpretation is more consistent with the purpose of the Act and it avoids a possible internal contradiction. The House interpretation exempts "practices" of the agency while subsection (a)(1)(c) requires that "rules of procedure" be published in the Federal Register and subsection (a)(2)(c) mandates that "administrative staff manuals and instructions to staff that affect a member of the public" be made available for public inspection and copying. Unless "rules of procedure" and "staff manuals" are not "practices," the Senate interpretation must be accepted.

 Since the records sought in this action are not related to personnel matters, ...


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