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holding that release of evaluative information "could compromise testing and evaluation by enabling recipients of the information to tailor their applications to the procedures and comments of the evaluators"
Summary of this case from Lewis v. U.S.Opinion
CIVIL ACTION NO: 02-1094 SECTION: "R"(2)
July 24, 2002
ORDER AND REASONS
Before the Court is defendant's motion to dismiss plaintiff's claims under the Freedom of Information Act and the Privacy Act for lack of subject matter jurisdiction and for failure to state a claim under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectively. For the following reasons, the Court grants defendant's motion for failure to state a claim because the information plaintiff seeks is exempt from disclosure under both statutes.
I. Background
This case arises from defendant's denial of plaintiff's application for employment. In July 1999, plaintiff applied for a position as a tractor-trailer operator with the United States Postal Service. Plaintiff filed a Postal Service Form 5920 employment application. The Postal Service, through the National Testing Administration Center (NTAC), evaluated and scored plaintiff's application. The NTAC gave plaintiff a reduced score of "75" and denied his application for employment.
Plaintiff requested a copy of his employment application and any other related evaluation documents from the Postal Service under the Freedom of Information Act (FOIA). The Postal Service forwarded plaintiff's request to the NTAC. The NTAC denied the request. A NTAC representative informed plaintiff that his employment application could not be released because evaluators modified and annotated the application, and that as a result of these modifications, the application had become an official Postal Service testing document. The NTAC representative explained that the modified application and the rating guide used to evaluate Postal Service applicants are exempt from disclosure under FOIA. She further stated that applicants for tractor-trailer operator positions are evaluated based on their safety record and recent tractor-trailer experience, and that plaintiff's 1998 traffic violation and his lack of recent tractor-trailer experience contributed to his low score.
Plaintiff appealed the denial of his FOIA request to the Postal Service General Counsel. For the first time, plaintiff asserted a right to his application under the Privacy Act in addition to his FOIA request. In response to plaintiff's appeal, the Postal Service released plaintiff's employment application but not any scoring evaluation material.
Plaintiff sued the Postal Service under FOTA, 5 U.S.C. § 552 (a) (4)(B), and the Privacy Act, 5 U.S.C. § 552a(g)(1) CD), for injunctive relief seeking disclosure of information regarding the evaluation of his employment application. He also asks the Court to order an in camera inspection of the withheld information under 5 U.S.C. § 552a(g)(3)(A). The Postal Service moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim.
II. Discussion
A. Legal Standard
(i) Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Furthermore, the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
(ii) Rule 12(b)(6)
In a motion to dismiss for failure to state a claim under Rule 12(b) (6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). In deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to the facts stated in the complaint and the documents attached to or incorporated in the complaint. Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) Courts can also consider documents in the plaintiff's possession or of which the plaintiff had knowledge and relied on in bringing the suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561 (1992)). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. Freedom of Information Act Claim
Congress enacted the Freedom of Information Act (FOIA) to facilitate public access to government documents. United States Department of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 547 (1991) (citation omitted). FOIA establishes a regime "designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599 (1976). A government agency is generally required to make full disclosure in response to a citizen's request for public information under FOIA. 5 U.S.C. § 552; see also Sherman v. United States Department of the Army, 244 F.3d 357, 360 (5th Cir. 2001) (citing Ray, 502 U.S. at 173, 112 S.Ct. at 547). There is a strong presumption in favor of disclosure that places the burden on the agency to justify the withholding of any documents. Ray, 502 U.S. at 173, 112 S.Ct. at 547 (citations omitted)
FOIA also reflects Congress' recognition that various public or private concerns can outweigh the need for public disclosure of certain information. Sherman, 244 F.3d at 360 (citing Rose, 425 U.S. at 360-61, 96 S.Ct. at 1599; Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996)). Accordingly, FOIA contains nine exemptions through which federal agencies may restrict disclosure of information that would threaten broader social concerns. 5 U.S.C. § 552 (b). Notwithstanding the exemptions, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S.Ct. 1599. Courts, therefore, must construe FOIA's exemptions narrowly in favor of disclosure. See United States Department of Justice v. Landano, 508 U.S. 165, 181, 113 S.Ct. 2024 (1993) (citations omitted); see also Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256, 1257 (7th Cir. 1988) (quoting S. Rep. No. 83, 59th Cong., Sess. 9 (1965).
(i) Failure to Exhaust Administrative Remedies
The Postal Service argues that plaintiff's FOIA claim should be dismissed for failure to exhaust administrative remedies. Although FOIA does not expressly require that a claimant exhaust his administrative remedies before requesting judicial relief, the Fifth Circuit requires exhaustion as a precondition to filing a lawsuit. The Fifth Circuit reasons that because the exhaustion of administrative remedies is a general prerequisite for judicial review of any agency action, "FOIA should be read to require that a party must present proof of exhaustion of administrative remedies prior to seeking judicial review." Headley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979) (per curiam); see also Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (per curiam) (Freedom of Information Act requires exhaustion of administrative remedies before seeking judicial review) (citation omitted) Actual exhaustion occurs when the agency denies all or a part of a party's request. Taylor, 30 F.3d at 1368.
Defendant's motion to dismiss plaintiff's FOIA claim under Rule 12 (b)(1) is not proper because exhaustion of administrative remedies is not a jurisdictional requirement. Taylor v. Appleton, 30 F.3d 1365, 1368 n. 3 (11th Cir. 1994) (citing Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979)). Nevertheless, because defendant asserts a defense of failure to state a claim under Rule 12(b)(6) as an additional grounds for dismissal of plaintiff's FOIA claim, the Court will consider whether plaintiff exhausted his administrative remedies. See id. (proper to consider claim that FOIA plaintiff failed to exhaust administrative remedies as a motion to dismiss under Rule 12(b)(6)); see also Taylor v. United States Treasury Department, 127 F.3d 470, 475-76 (5th Cir. 1997).
Here, defendant contends that plaintiff failed to exhaust his administrative remedies because he abandoned his request for materials containing the Postal Service's evaluation of his application when he appealed only the denial of his request for his employment application. See Def.'s Mot. to Dismiss at 3. Defendant's argument is incorrect. Plaintiff's appeal of his original FOIA request indicates that while his focus is on obtaining his application, he was particularly concerned with obtaining the evaluation notes that the NTAC told him were on his application. See Pl.'s Opp. to Mot. to Dismiss, Ex. C (Robinett Appeal, 12/10/01). The final decision of the Postal Service to disclose only the portions of plaintiff's application that did not contain evaluation material effectively denied part of plaintiff's document request, his request for the NTAC's evaluation material. Accordingly, the Court finds that plaintiff exhausted his administrative remedies before filing this lawsuit. The Court will therefore consider defendant's alternative argument that the evaluation material is exempt from disclosure requirements.
(ii) Exemption 3
Defendant argues that plaintiff seeks information that is exempt from disclosure under 5 U.S.C. § 552 (b)(3). The FOIA exemption contained in Section 552(b)(3) provides for nondisclosure of matters that are specifically exempted from disclosure by other statutes. 5 U.S.C. § 552 (b)(3). Section 552(b)(3) states:
This section does not apply to matters that are specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld . . . 5 U.S.C. § 552 (b) (3).
Thus, for a statute to qualify under Section 552(b)(3), the statute must either (A) leave the agency no discretion on the issue of whether to withhold particular matters or (B) establish specific criteria for withholding or refer to particular types of matters to be withheld. Id.; see also National Western Life Ins. Co. v. United States, 512 F. Supp. 454, 459 (N.D. Tex. 1980). The Court of Appeals for the District of Columbia noted that the current version of the Section 552(b)(3) exemption reflects Congress' intent to narrow the scope of the exemption to exclude "those broad ranging statutes that give an agency `carte blanche [sic] to withhold any information [it] pleases.'" CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1137 (D.C. Cir. 1987) (citation omitted). The "unmistakable thrust" of the exemption is to "assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch." American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978) (citation omitted).
Defendant argues that 39 U.S.C. § 410 (c)(2) of the Postal Reorganization Act qualifies as a withholding statute under the Section 552(b)(3) exemption. The Postal Reorganization Act provides that the Postal Service is generally subject to the requirements of FOIA which mandate disclosure of public information. See 39 U.S.C. § 410 (b) (1). Subsection (c) of the Act, however, provides a list of information for which mandatory disclosure is not required. In particular, Section 410(c)(2) provides that disclosure is not mandatory for "information of a commercial nature . . . which under good business practices would not be publicly disclosed." 39 U.S.C. § 410 (c)(2). On its face, Section 410(c)(2) does not qualify under Subsection (A) of the exemption. Subsection (A) "embraces only those statutes incorporating a congressional mandate of confidentiality that, however general, is "absolute and without exception.'" American Jewish Congress, 574 F.2d at 628 (citation omitted). Section 410(c)(2) does not eliminate all agency discretion as to commercial matters, rather, it removes such matters from the mandatory disclosure requirement. 39 U.S.C. § 410(c)(2) ("Subsection (b)(1) of this section shall not require the disclosure of . . . information of a commercial nature . . .
To qualify under Subsection (B) of the exemption, which in contrast to Subsection (A) permits agency discretion, the statute must provide articulable criteria for the agency to use to determine whether to permit disclosure. See National Western Life Ins. Co., 512 F. Supp. at 459 (statute must provide "measurable yardstick"); see also CNA Financial, 830 F.2d at 1139 ("Even statutes conferring considerable amounts of administrative discretion can fall within Subsection (B) of Exemption 3 . . . In American Jewish Congress, 574 F.2d 624, the Court of Appeals for the District of Columbia suggested two necessary considerations for deciding whether a given criterion or enumerated matter satisfies Subsection (B). First, a court must consider the underlying congressional intent to exempt material from FOIA. 574 F.2d at 628; see also Church of Scientology of California v. United States Postal Service, 633 F.2d 1327, 1330 (9th Cir. 1980) ("Somehow Congress must manifest its appreciation of the specific dangers of disclosure, and thus its intent to exempt, or subsection (B) goes unsatisfied."). Second, a court must analyze the amount of discretion left to the agency. Id. The "the crucial distinction [lies] between statutes that in some manner [tell] the official what to do about disclosure and those that [do] not significantly inform his discretion in that regard." Id. at 629.
In the few decisions to consider the matter, courts have found that Section 410(c)(2) qualifies as an exemption under Section 552(b)(3) (B) of FOTA. See National Western Life Ins. Co. v. United States, 512 F. Supp. 454, 459 (N.D. Tex. 1980); accord, Piper Marbury, L.L.P. v. United States Postal Service, 2001 WL 214217, *3 (D.D.C. 2001) (agreeing with National Western that Section 410(c)(2) satisfies Section 552(b)(3) of FOIA). This Court agrees with those decisions. As to congressional intent to create an exemption, the Postal Reorganization Act specifically recognizes that good business practices can require that information of a commercial nature not be disclosed. See 39 U.S.C. § 410 (c)(2). Indeed, courts have recognized Congress' intent that the Postal Service operate "in many ways like a private business." Id. (citing May Dept. Stores v. Williamson, 549 F.2d 1147, 1149 (8th Cir. 1977)); see also Loeffler v. Frank, 486 U.S. 549, 556, 108 S.Ct. 1965, 1969 (1988) (Congress' general design was that Postal Service be run more like a business than had its predecessor). In line with this intent, Section 410(c)(2) recognizes that the release of commercial information can be inimical to the Postal Service's ability to function in a businesslike manner when disclosure of such information is contrary to good business practices.
As to whether the standard in Section 410(c)(2) is definite enough, the Court agrees with the National Western court that the phrase "good business practice" in Section 410(c)(2) creates a sufficiently clear standard under which the agency can determine whether to disclose particular information. This standard is no less definite than other standards that have been found sufficiently definite by other courts. For example, the court in American Jewish Congress found that a standard that instructed an agency to release information only if it "can be published without undue risk to the common defense and security" meets the definiteness requirement of Section 552(b)(3)(B). 574 F.2d at 629 (standard for determining release of information under Atomic Energy Act of 1954 fits under FOIA exemption). Further, to determine what constitutes "good business practice," the agency can refer to business law and recommended management techniques in the commercial world. National Western, 512 F. Supp. at 459. Finally, the normative content of Section 410(c)(2)'s standard contrasts with the standard in the Trade Secrets Act, which the Court of Appeals for the District of Columbia held to be normless and overly broad. See CNA Financial, 830 F.2d at 1140. The Trade Secrets Act created penalties for government employees and agencies who disclosed "a laundry list of information" that lacked any standards and covered "practically any commercial or financial data collected by any federal employee from any source in performance the duties of his or her employment." Id. Section 410(c)(2), on the other hand, limits the type of information that can be withheld to information that is commercial in nature and that "good business practice" dictates should not be publicly disclosed. 39 U.S.C. § 410 (c)(2). Therefore, the Court finds that Section 410(c)(2) qualifies as an exemption statute under Section 552(b)(3)(B) of FOIA.
The next issue the Court must determine is whether the specific information plaintiff seeks falls within the parameters of the exemption. National Western, 512 F. Supp. at 459. Plaintiff seeks material reflecting the Postal Service's evaluation of his employment application. Specifically, plaintiff contends that he seeks information that demonstrates how and why the evaluators considered a 1998 accident and a related traffic ticket. Criteria for evaluating job applicants have "customarily been safeguarded in both the public and private sectors." National Treasury Employees Union v. United States Custom Service, 802 F.2d 525, 531 (D.C. Cir. 1986). In the case of the Postal Service, this information does not secretly regulate the conduct of members of the public but relates to the agency's "core personnel function" of hiring employees. Id. Further, Postal Service regulations define "information of a commercial nature" to include "[i]nformation which, if publicly disclosed, could compromise testing or examination materials." 39 C.F.R. § 265.6 (b)(3) (viii). The Court finds that the information plaintiff seeks is the type of information described in 39 C.F.R. § 265.6 (b)(3) (viii). Release of such information could compromise testing and evaluation by enabling recipients of the information to tailor their applications to the procedures and comments of the evaluators. For instance, if an evaluator emphasizes a particular type of accident listed in an application to operate a vehicle, publication of that information could lead future applicants to downplay the seriousness of their accidents or to misconstrue the nature of such an accident. See National Treasury Employees Union, 802 F.2d at 530 (disclosure of evaluative material will make it more difficult to correctly evaluate job candidates). The Postal Service's application process would be compromised as a result because certain applicants would have an unfair advantage over others, and the agency would not have access to reliable information. Therefore, the Court finds that the information that plaintiff seeks is within the parameters of Section 410(c)(2). Accordingly, the Court finds that plaintiff cannot state a claim for which relief can be granted under FOIA.
Defendant also contends that the information plaintiff seeks is exempt from disclosure under Section 552(b)(2) of FOTA as information solely related to internal rules and procedures of the agency. In light of the Court's finding that the information fits under another FOIA exemption, the Court need not address defendant's Section 552(b)(2) argument. Further, Section 552(b)(2) has been read to reflect the same concerns and cover the same information as the exemption codified in Section 552a(k)(6) of the Privacy Act which the Court addresses below. See Patten v. Federal Bureau of Investigations, 626 F. Supp. 445, 447 (M.D. Pa. 1985), aff'd, 782 F.2d 1030 (3d Cir. 1986).
C. Privacy Act Claim
Even though the information plaintiff seeks falls under a FOIA exemption, the Court must also determine whether disclosure is available under the Privacy Act. See 5 U.S.C. § 552a(t); see also May v. Department of the Air Force, 777 F.2d 1012, 1015 (5th Cir. 1985) (citing to former Section 552a(q)). The Privacy Act gives individuals access to federal agency records pertaining to them. Under Section 552a(d)(1), upon an individual's request, an agency must disclose all of the information pertaining to that person that is contained in the agency's records. 5 U.S.C. § 552a(d). An agency, however, may promulgate rules to exempt certain information from disclosure. See 5 U.S.C. § 552a(j) (k); see also Villanueva v. Department of Justice, 782 F.2d 528, 531 (5th Cir. 1986). For instance, an agency may promulgate rules to exempt from disclosure testing or examination materials used to determine suitability for employment if disclosure would compromise the fairness or objectivity of the testing or examination process. 5 U.S.C. § 552a(k)(6); see also Villanueva, 782 F.2d at 531.
Section 552a(d)(1) of the Privacy Act provides that each agency that maintains a system of records shall:
Upon request by an individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence . . .5 U.S.C. § 552a(d)(1).
In Patton v. Federal Bureau of Investigations, 626 F. Supp. 445 (M.D. Pa. 1985), the FBI rejected an employment application, and the applicant asked the FBI for access to his application file. The FBI released a portion of the file. The applicant filed an action under the Privacy Act and FOTA to obtain the undisclosed information. The district court found that a portion of the withheld information was exempt from disclosure under Section 552a(k)(6) of the Privacy Act because the documents contained testing or evaluation material. Patton, 626 F. Supp. at 447. The court stated that the material contained information that implicates the applicant evaluation system and that publication of the material "would give future applicants an unfair advantage and would impair the usefulness and value of the system." Id. The court further stated that the evaluator's commentary was a "part and extension" of the evaluation criteria such that its release would also reveal how the evaluation criteria were applied. Id.
Here, defendant argues that the Section 552a(k)(6) exemption applies because the information plaintiff seeks contains employment evaluation materials. If disclosed, contends defendant, the information would give an unfair advantage to future applicants and it would substantially hinder the effectiveness of the evaluation because future applicants could use the evaluation material to tailor their applications. Plaintiff contends that disclosure of the information he seeks will not compromise the Postal Service's testing procedures because tractor-trailer operator applicants already know that their driving records and relevant experience are part of defendant's evaluation criteria. Plaintiff, however, is not asking for information that will reveal whether the Postal Service considered his 1998 traffic violation in its evaluation of his application. The Postal Service has told him that his 1998 traffic violation and lack of recent tractor-trailer experience contributed to his low evaluation score. See Pl.'s Ex. B, 11/19/01 Letter from Postal Service. Rather, plaintiff wants to see how much defendant reduced his application score because of the 1998 incident. This is just the type of information that courts have found could compromise an agency's evaluation process. Hopeful applicants could tailor their applications based on the released criteria and based on the manner in which the evaluators addressed the particular aspects of the application. See Treasury Employees Union, 802 F.2d at 530; Kaganove v. Environmental Protection Agency, 856 F.2d 884, 889 (7th Cir. 1988) (release of document EPA evaluators use to rank job candidates according to their experience and skill would render it ineffectual because some job candidates, once informed of detail of the experiences that EPA considered most valuable, might amend the description of their earlier jobs). Therefore, the Court finds that the information plaintiff seeks is exempt from disclosure under Section 552a(k)(6) of the Privacy Act. Accordingly, plaintiff cannot state a claim for which relief may be granted under the Privacy Act.
D. In Camera Review
Plaintiff asks the Court to conduct an in camera review of the withheld information under 5 U.S.C. § 552a(g)(3)(A). The Privacy Act gives the trial court discretion to decide whether to examine the material at issue in camera in order to determine if the withheld information fits under a disclosure exemption. 5 U.S.C. § 552a(g)(3)(A); see also Alford v. Central Intelligence Agency, 610 F.2d 348, 349 (5th Cir. 1980); Raven v. Panama Canal Co., 583 F.2d 169, 172 (5th Cir. 1978) (same standard applies for consideration of in camera review under FOIA). The Court finds that an in camera review is not necessary because the contents of the withheld material are not disputed. An in camera review would not benefit plaintiff because the Court assumed that the contents of the withheld material are as plaintiff has described, and given that assumption, plaintiff's complaint fails to state a claim for which relief can be granted. Accordingly, the Court denies plaintiff's request for an in camera review of the withheld information.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendant's motion to dismiss plaintiff's FOIA and Privacy Act claims.