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Rose v. Department of Air Force

decided: March 29, 1974.


Appeal from decision of United States District Court for the Southern District of New York, Lloyd F. MacMahon, J., granting partial summary judgment to defendants in a lawsuit under the Freedom of Information Act, 5 U.S.C. § 552. Reversed and remanded.

Moore, Hays and Feinberg, Circuit Judges. Moore, Circuit Judge (dissenting).

Author: Feinberg

FEINBERG, Circuit Judge:

We are faced in this case with construing two of the exemptions in the Freedom of Information Act ("the Act"), 5 U.S.C. § 552, one of the many recent federal statutes that bring new and difficult cases into the federal courts.*fn1 As is frequently the case with such legislation, we have little to guide us in the way of precedent, and the brevity and generality of the statutory formulations leave much to be decided by the courts.


Appellant Michael T. Rose, a graduate of the United States Air Force Academy (the Academy) was -- at the time this complaint was filed -- a third year student at the New York University Law School and a member of the Law Review. Together with other students and members of the Review, Rose has been conducting a survey of disciplinary systems at various Service Academies; the study is slated for publication in a forthcoming issue of the Review.*fn2 In order to document discussion of the Academy's Honor and Ethics Codes, Rose asked the Academy in autumn 1971 to give him copies of case summaries of Honor and Ethics Code adjudications, which were kept in the Academy's files. The Department of the Air Force refused on the ground that these summaries are exempted from compulsory release by 5 U.S.C. § 552(b) (6), which permits an agency to withhold certain information to avoid unwarranted invasion of privacy.*fn3

After exhausting his administrative remedies, Rose joined with appellants Charles P. Diamond and Lawrence B. Pedowitz (who were then, respectively, the current and former Editor-in-Chief of the Review) in this lawsuit under the Act to compel disclosure of the disputed items "with personal references or other identifying information deleted . . .." Judge Lloyd F. MacMahon of the United States District Court for the Southern District of New York granted appellees (collectively the Agency) summary judgment on the issue of the case summaries.*fn4 Although ultimately ruling against appellants, the judge agreed with them in large part. The Agency put forth two grounds in the district court to support its non-production of the documents: the Act's "personal privacy" exemption, referred to above, and the court's "equitable discretion" to deny disclosure. The judge rejected both arguments. However, he ruled for appellees on a third ground not advanced by them, that the summaries were covered by the exemption in 5 U.S.C. § 552(b) (2) for an agency's internal rules and practices. Attacking the district court's order refusing them access to the summaries, appellants prosecute this appeal. We reverse and remand for further proceedings conforming with this opinion.


We begin by stressing that the Freedom of Information Act*fn5 was passed in an effort to cure the defects of former section 3 of the Administrative Procedure Act (APA), 5 U.S.C. § 1002 (1964), which "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."*fn6 Courts have noted that the Act's remedial purpose was to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny. See, e.g., Hawkes v. Internal Revenue Service, 467 F.2d 787, 791 (6th Cir. 1972); Bristol-Myers Co. v. FTC, 138 U.S. App. D.C. 22, 424 F.2d 935, 938 (1970), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52 (1970). They have accordingly held that exemptions must be narrowly construed. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 823 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873, 42 U.S.L.W. 3520 (1974); Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1080 (1971). This liberal reading of the Act's disclosure provisions is supported not only by legislative history but, more importantly, by the statutory language, as well. The Act mandates release of documents to "any person "*fn7 (subject to explicitly defined exemptions);*fn8 grants to the district courts jurisdiction to enjoin improper withholding after a hearing "de novo" in which "the burden is on the agency to sustain its action," 5 U.S.C. § 552(a) (3); and further calls for disclosure "except as specifically stated in this section." 5 U.S.C. § 552(c) (emphasis added).*fn9 With this background in mind, we turn to a discussion of the applicability of Exemption Two, 5 U.S.C. § 552(b) (2), the provision thought by the district court to support the Agency's refusal to turn over the contested summaries to appellants.

As already indicated, until the district court ruled none of the appellees had thought to rely on Exemption Two in refusing to turn over the case summaries. That section of the Act, see note 8 supra, shields from required disclosure all "matters that are . . . related solely to the internal personnel rules and practices of an agency . . .." In some instances, the scope of the exemption may be open to considerable doubt since the Senate and House Reports diametrically clash.*fn10 The former cites as examples of excluded material "rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like." Senate Rep. 8. The latter, on the other hand, exempts from disclosure "operating rules, guidelines, and manuals of procedure for Government investigators or examiners" but not " 'matters of internal management ' such as employee relations and working conditions and routine administrative procedures. . . ." House Rep. 10. The Senate Report is thought by many to comply with the statutory language better than the House Report, whose thrust is most frequently toward non-disclosure.*fn11 This court has not yet taken a firm stand on the issue. Cf. Frankel v. SEC, 460 F.2d 813, 816 & n. 5. (2d Cir. 1972), cert. denied, 409 U.S. 889, 34 L. Ed. 2d 146, 93 S. Ct. 125 (1972); Polymers, Inc. v. NLRB, 414 F.2d 999, 1006 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 24 L. Ed. 2d 502, 90 S. Ct. 570 (1970). We conclude, however, that the difference of approach between the House and Senate Reports would not affect the result here.

If we adopt the Senate construction of Exemption Two, case summaries of Honor and Ethics Code adjudications clearly fall outside its ambit. Such summaries have a substantial potential for public interest outside the Government. Appellants have drawn our attention to various items such as newspaper excerpts, a press conference by an Academy officer and a White House Press Release, which illustrate the extent of general concern with the working of the Cadet Honor Code. As the press conference and the Press Release show, some of the interest has been generated -- or at least enhanced -- by acts of the Government itself. Of course, even without such official encouragement, there would be interest in the treatment of cadets, whose education is publicly financed and who furnish a good portion of the country's future military leadership. Indeed, all sectors of our society, including the cadets themselves, have a stake in the fairness of any system that leads, in many instances, to the forced resignation of some cadets. The very study involved in this case bears additional witness to the degree of professional and academic interest in the Academy's student-run system of discipline. Moreover, as we later describe in greater detail, see Part III infra, the case summaries themselves have great impact on the lives and careers of subject cadets. Both of these factors -- the legitimate public interest and the future effect on cadets -- differentiate the summaries from matters of daily routine like working hours, which, in the words of Exemption Two, do relate " solely to the internal personnel rules and practices of an agency." (Emphasis added.)

Similarly, even the House Report, which is usually more agency-oriented, does not sanction withholding the summaries. As we have already noted, the House Report in this respect seems to permit greater disclosure of "matters of internal management," except where knowledge of administrative procedures might help outsiders to circumvent regulations or standards.*fn12 Release of the summaries, which constitute quasi-legal records, poses no such danger to the effective operation of the Codes at the Academy.

Speculating about a different kind of threat to the effectiveness of the Code, the Agency claims that publication of this material might gravely undermine the whole basis of the Honor Code system, whose proceedings are cloaked in confidentiality. The matter of confidentiality is further discussed in Part III infra. It is enough here to point out that appellants have sought only "sanitized" versions of the case summaries with names "or other identifying information" removed. In response to the redaction point, the Agency argues "that there is no way in which the total success of the deletion process can be guaranteed" and that "the functioning of the Honor and Ethics Codes would be seriously impaired even if inadvertent disclosure is a mere possibility."*fn13 But "total success" -- in editing, as in anything else -- is an impossible standard and surely not one imposed by a statute based upon a general philosophy of full agency disclosure to the public. Given this policy, as well as the injunction to construe exceptions to the Act strictly, 5 U.S.C. § 552(c), we think it clear that the Agency's withholding of the case summaries (as edited to preserve anonymity) cannot be upheld by reliance on the second exemption.


The Agency also argues that the summaries sought by appellants fall within the purview of Exemption Six of the Act, 5 U.S.C. § 552(b) (6), which covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . ." As already indicated, Judge MacMahon did not agree with appellees on this point, but they renew their argument in this court. On its face, Exemption Six appears relevant; we are dealing here with "personnel" or "similar files." But the key words, of course, are "a clearly unwarranted invasion of personal privacy," a wholly conclusory phrase, which requires a court to apply the statutory standard without any definite guidelines. Under these circumstances, precedent lends only marginal aid. Each case involves an essentially unique investigation into the nature of the privacy interest invaded and the extent of the proposed invasion, viewed in the light of contemporary mores and sensibilities as applied to the particular facts.

The data pertinent to our inquiry concern the characteristics and use of the Honor and Ethics Code case summaries. These, the Agency tells us, are extracts of the significant facts in each case heard by the Honor Committee and in some important cases heard by the Ethics Committee. (The Ethics program is administered more informally.) As a matter of custom and procedure, information regarding such cases is required to be held in the strictest confidence. The summaries are, however, posted in the forty squadrons and, upon their official release, Honor Representatives are permitted to discuss any feature of the cases with the cadets for their education. The documents are also distributed to Academy personnel who have a "need to know." (In not guilty or so-called "discretion"*fn14 cases the name of the accused is deleted; in guilty cases it is not.) Therefore, in practice, the curtain of ...

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