Opinion
98-CV-0116E(Sc)
August 21, 2000
ATTORNEYS FOR THE PLAINTIFF: Pro Se, Alden, N.Y. 14004.
ATTORNEYS FOR THE DEFENDANT: Jane B. Wolfe, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Plaintiff, proceeding pro se, is a legal assistant at the Social Security Administration's Office of Hearings and Appeals ("the OHA") in Buffalo, N.Y. Following a premature commencement of this action and its resultant dismissal without prejudice, plaintiff exhausted her administrative remedies and filed an Amended Complaint ("the Complaint") January 19, 1999. The Complaint seeks, inter alia, an order compelling the SSA to fully disclose documents pursuant to the Freedom of Information Act ("the FOIA"), 18 U.S.C. § 552, and compelling reimbursement of the filing fee and other expenses she has incurred due to the SSA's alleged noncompliance. The SSA moved for summary judgment and such motion will be granted.
Plaintiff seeks disclosure of documents pertaining to OHA awards in 1996 and 1997, to job assessment panels in 1996 and 1997 and to a job posting for a paralegal specialist position in 1997 at the OHA's Buffalo office. The SSA initially provided plaintiff with a Vaughn index of 252 pages and claimed certain FOIA exemptions from the full disclosure of some documents. Specifically, twenty-seven documents were released with redactions, 100 were fully withheld and 125 were released without redactions. See Defendant's Statement of Undisputed Facts, ¶¶ 33-36. After oral argument had been held on the SSA's summary judgment motion, the SSA provided plaintiff with a Supplemental Vaughn index of 590 pages, 446 of which are blank and 120 allegedly were not requested. See Plaintiff's Response to Suppl. Vaughn Index at 4.
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) — cited with approval in Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) — requires a government agency to furnish a detailed justification for, and index of, claims of exemptions under the FOIA as grounds for the withholding or redaction of requested documents.
To prevail on its motion for summary judgment, the SSA must show "that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994). In carrying this burden, the SSA may rely upon affidavits to show that it has conducted a reasonable search if such are "relatively detailed and nonconclusory and . . . submitted in good faith." See Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Furthermore, affidavits submitted by a government agency are to be accorded a presumption of good faith and, if such submissions are facially adequate, "discovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary." Carney, at 812. "In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations, . . . or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate." Ibid.
Internal quotation marks omitted.
The first issue presented for this Court's consideration is that of the reasonableness of the search conducted by the SSA. The standard is "not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg, at 1351 (citing Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam)). Under this framework the undersigned is satisfied that the declarations of a social insurance specialist, a regional attorney advisor at the OHA and a disclosure specialist at the SSA are sufficiently detailed to show that the search was adequate — and, a priori, reasonable — under Weisberg. See generally Kattler Decl.; Kenaga Decl.; Rieger Decl. These declarations are not conclusory but rather state, in some detail, the process and effort involved in the search.
Plaintiff contends that the search was inadequate and points to a memorandum written by Information Disclosure Specialist Jack Wolf that refers to the "minimal search time" involved in securing the documents required by plaintiff's request. Memorandum from Jack Wolf to Darrell Blevins (Mar. 19, 1998), Ex. B to Mtn. for Summary Judgment. She has not, however, identified documents alleged to be in existence and retrievable that were not produced and that could have been obtained with a reasonable search. Moreover, the mere fact that a search demanded only "minimal" time to complete is not, in and of itself, indicative of an inadequate search. The record before this Court indicates that there is no genuine issue of material fact as to the reasonableness of the search and that the agency conducted a reasonable search for the documents requested by plaintiff.
The second issue for the consideration of this Court is whether the SSA was entitled to withhold and redact documents under Exemption 5 or 6 of the FOIA. Exemption 5 provides that documents do not have to be released if they are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with an agency." 5 U.S.C. § 552(b)(5). The SSA has claimed that Exemption 5 applies to the cover sheets, score sheets and performance assessments of the two successful candidates and four other unsuccessful candidates for the paralegal specialist position, as well as the "break off point" for the well-qualified list and the ordered rank and names of applicants for the position. See Defendant's Mem. at 7-9. The purpose of Exemption 5 is to prevent injury to the quality of agency decisions. See NLRB v. Sears, Roebuck Co., 421 U.S. 132, 150-151 (1975). To invoke this exemption, the SSA must show that the document is (1) "pre-decisional" and (2) "deliberative" — i.e., actually related to the process by which policies are formulated. See Jordan v. United States Dept. of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978). The deliberative process exemption, however, does not extend to purely factual material. See Hopkins v. U.S. Dept. of Housing Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991).
The handbook for the assessment panel for the job vacancy describes the process for creating the "well-qualified" list for a vacancy. It suggests looking at a natural break in the point distribution rather than imposing a etched-in-stone rule such as choosing the top quarter or top 5% of the applicants and therefore invites debate and discussion among the panelists. This list is pre-decisional in that it was made prior to the selection of the final applicant; it is deliberative in that it relates to the formation of the choice of those who would be considered further for a promotion to the paralegal specialist position in question. Therefore, it is clear that this list may be withheld under Exemption 5 of the FOIA.
See Assessment Panel Handbook: SSA/AFGE Merit Promotion Plan, SSA-OHA, SSA Pub. No. 23-043 (February 1996) at 9. Regrettably, the first Vaughn index in this case does not contain page numbers. This document is contained therein and was released to plaintiff without redaction.
The scoresheets for the applicants for the paralegal specialist positions are pre-decisional inasmuch as the choice of which individuals to hire for the position was made after the sheets had been filled out. Regardless of whether the forms were filled out independently by the panelists prior to their meeting or via a consensus of the group at the meeting, they remain pre-decisional. The decisions of a hiring panel to emphasize certain types of skills or how many points to award to an applicant for a particular educational experience or previous employment experience are deliberative decisions in that they set the policy for the hiring process. Therefore, it is clear that this information is also protected under Exemption 5.
The ordered rank of the applicants is a product of the decision-making process discussed above. It is not pre-decisional, however, as the list is the result of the panel's decisions rather than an intermediate decision made on the process of choosing a candidate. Consequently, this information may not be withheld under Exemption 5. This information may still be subject to withholding pursuant to Exemption 6, as discussed below.
Defendant invokes Exemption 6 of the FOIA for several types of documents. Such permits an agency to withhold all information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Courts have used a balancing test to determine claims of exemptions under section 552(b)(6). See, e.g., Ripskis v. Dept. of Housing and Urban Development, 746 F.2d 1, 2-3 (D.C. Cir. 1984); Rural Housing Alliance v. United States Dept. of Agr., 498 F.2d 73, 77 (D.C. Cir. 1974). The first step is determining whether the disclosure of the document would constitute an invasion of privacy. The second step is assessing the public-interest purpose of the party seeking disclosure. In addressing this latter interest, the basic purpose of the FOIA — "to open agency action to the light of public scrutiny" — must be considered. U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 772 (1989). The final step in the test is to weigh the privacy interest against the public interest in disclosure of the documents.
The SSA claims that, based on Exemption 6, the following items are subject to withholding or redaction: appraisal data of persons chosen for awards; the identity of persons denied awards; the performance assessments and assessment panel scores of the two successful candidates for the paralegal specialist position; the identity, assessments, and scores of unsuccessful applicants; the ranked list of applicants and names of individuals on the well-qualified list; and those applicants eligible for promotion. See Defendant's Mem. at 11-12.
Documents containing details of an employee's job performance are personal information in which the individual has a substantial privacy interest. The authors of nominations and evaluations also have an interest in maintaining the confidentiality of the documents so as to allow honest and frank evaluations without the fear that the information will become public. Courts have held that both favorable and unfavorable assessments trigger a privacy interest. See Ripskis, at 3. Favorable assessments may embarrass the individual or provoke jealousy among the co-workers; unfavorable assessments could contain personal information or criticism that the employee would not want released. See ibid.
Conversely, there is a public interest in making sure that government agencies, supported by the tax dollars of working citizens, operate efficiently and maintain a high quality work force. If the promotion and merit bonus system produced outcomes that were inconsistent with workers' performances or that were based upon nepotism or that showed the selection process operated contrary to agency regulations, the public would have some interest in obtaining information reflecting this situation.
With these considerations in mind, this Court turns to the SSA's Exemption 6 claims. The first item is the identities of the unsuccessful applicants for the paralegal specialist position. The public interest in knowing who applied for this vacancy and who was not hired or promoted is minimal. The privacy interest of the applicants is substantial because if these documents were released, the entire office would be aware that specific individuals had been judged less qualified or less competent as compared to the successful applicants. If the general public could access this information, the individual would be subject to everyone — from his next-door neighbor to someone across the country — knowing information that is intensely personal and private. The effect on the individuals in the instant case is appreciable and the ex ante effect on similarly situated employees could substantially alter the incentives and dynamics of hirings and promotions within the various federal agencies. Accordingly, this Court agrees that the names of the applicants need not be released as this information is properly within Exemption 6 of the FOIA.
The second set of items for consideration under Exemption 6 is the award nomination forms for specific individuals. There is a public interest in making sure that the choices of individuals who receive merit bonuses are based on relevant factors and that those who receive favorable recommendations from their supervisors are the ones who may receive the reward. However, the writer of the nomination form and/or the individual being nominated has a privacy interest in the content of the form. Supervisors expect that they can be forthcoming and forthright without having the public, in effect, reading over their shoulders. Workers receiving highly positive (or even lukewarm) recommendations have a privacy interest not to be embarrassed or to incur the jealousy of their co-workers. The award nominations represent intensely private information in ones personnel file, and accordingly this Court finds that these documents are within Exemption 6 of the FOIA. See Ripskis, at 3 (holding that release of favorable information could "spur unhealthy comparisons among HUD employees and thus breed discord in the workplace"); see also FLRA v. U.S. Dept. of Commerce, 962 F.2d 1055, 1059 (D.C. Cir. 1992) (holding that employees receiving ratings of "outstanding" or "commendable" have a substantial interest in maintaining privacy and the fact that the information is favorable does not diminish the interest); Celmins v. U.S. Dept. of Treasury, Etc., 457 F. Supp. 13, 15 (D.D.C. 1977) ("evaluation of an individual's work performance, even favorable, is personal information").
On a related point, the identities of persons who were denied award bonuses are also within Exemption 6. The public interest in the names themselves is minimal because, without further information, that material would not assist in monitoring the decision-making of the agency. The private interest in not having one's failures in his or her efforts for advancement in employment disseminated for all to see is quite substantial.
Finally, the panel scores of the successful and unsuccessful applicants vis-à-vis Exemption 6 must be considered. The privacy interest for the applicants is substantial for reasons articulated above and the public interest in finding out names of individuals, along with their concomitant panel score, is minimal. Accordingly, this Court finds that this information is properly withheld under Exemption 6. Similarly, the names of the persons on the well-qualified list for the paralegal specialist position may be properly withheld by the agency as release would be an invasion of the applicants' privacy.
If any individual employee of an agency feels that there has been employment discrimination or a violation of the published procedures with respect to hiring or awards, legal actions other than suits under the FOIA may be initiated and documents may be obtainable therein through standard discovery procedures.
Whether the documents could have been released with the names or initials of the workers redacted and perhaps substituted with a code for each applicant must also be considered. "Any reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C. § 552 (b). Nonetheless, if the purpose served by releasing the records in full is no longer served when names or other identifying information are redacted, then the agency should not be forced to release the records at all. Obviously, the public interest in such a release would be minimal, if not nonexistent, and this Court finds that such would be true in the instant case. Indeed, if the SSA were to redact the requested documents in a manner that would remove all exempted private information, the resulting materials would be little more than templates. Accordingly, documents fully withheld that could possibly have been released with identifying information redacted are also within Exemption 6 of the FOIA.
Inasmuch as plaintiff has not shown that the agency failed to follow the proper procedures or law in determining which documents to release pursuant to the FOIA, there is no basis on which plaintiff is eligible for an award of fees or costs. Plaintiff's allegations that the agency was unresponsive to her FOIA request are without merit.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that this case shall be closed.