Opinion
Civil Action No. 01-1967 (GK)
September 5, 2002
MEMORANDUM OPINION
Plaintiffs in this Freedom of Information Action ("FOIA"), 5 U.S.C. § 552, are the American Lawyer Media, Inc. ("American Lawyer") and Michael Ravnitzky, a journalist working for Plaintiff American Lawyer. Defendant is the United States Securities and Exchange Commission ("SEC" or "Commission"). The matter is before the Court on the parties' Cross-Motions for Summary Judgment. Upon consideration of the motions, oppositions, replies, the applicable case law, and the entire record herein, for the reasons stated below, the Defendant's Motion is granted in part and denied in part, and Plaintiffs' Motion is granted in part and denied in part.
I. Background
This case concerns Plaintiffs' request for the non-public version of the SEC's FOIA Training Manual, entitled "SEC Freedom of Information Training Manual" ("Training Manual"). The Training Manual consists of two parts: the main text, which totals 69 pages, and 50 exhibits to the Manual, which total several hundred pages. The Manual was prepared in order to train the SEC's FOIA/Privacy Acts Officers ("EOIA/PA") and "establishes procedures within the EOIA/PA Office for processing requests for access to information or records maintained by the Commission." See Declaration of Valerie Lewis ("Lewis Decl."), 3 (Attached as Ex. A to Def.'s Mot. for Summ. J.)("Def.'s Mot.").In August 2000, Plaintiff Ravnitzky filed a FOIA request, seeking disclosure of the entirety of the SEC's FOIA Training Manual. On May 31, 2001, after an administrative appeal, the Commission released a redacted version of the main text of the Training Manual, as well as 17 of the 50 exhibits to the Training Manual. The SEC invoked Exemptions 2 and 5 to withhold the remaining material, which includes 33 exhibits and the redacted portions of the main text. See Declaration of Richard M. Humes ("Humes Decl.") (Attached as Ex. B to Def.'s Mot. for Summ. J.)("Def.'s Mot.").
II. Standard of Review
Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
Furthermore, in the FOIA context, the burden is on the governmental entity to show that the invoked exemptions apply. Department of State v. Ray, 502 U.S. 164, 173 (1991). The court may grant summary judgment on the basis of affidavits or declarations that explain why requested information falls within a claimed exemption, as long as they are sufficiently detailed, nonconclusory, and submitted in good faith, and as long as a plaintiff has no significant basis for questioning their reliability. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); see also Coastal States Gas Corp. v. United States Dep't of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). The district court conducts a de novo review of the government's disclosure decision. 5 U.S.C. § 552(a)(4)(B); D.C. Code § 2-537(b).
III. Analysis
Before turning to the merits of the SEC's withholdings, the Court addresses the threshold issue of waiver raised by Plaintiffs. Plaintiffs argue that the SEC has waived its right to withhold the Training Manual because the Commission's then-FOIA/PA Officer permitted Plaintiff Ravnitzky to review the Manual during a training conference sponsored by the American Society of Access Professionals in July 2000. See Pls.' Opp'n and Cross Mot. for Summ. J. at 17 ("Pls.' Opp'n." or "Cross-Mot.")
Even assuming the accuracy of this allegation, Plaintiffs have failed to allege, let alone establish, that the Training Manual they seek is in the "public domain," which they must do in order to show that the SEC has waived any exemptions. See Cottone v. Reno, 193 F.3d 550, 554-56 (D.C. Cir. 1999); Davis v. Dep't of Justice, 968 F.2d 1276, 1279-80 (D.C. Cir. 1992) ("For the public domain doctrine to apply, the specific information sought must have already been `disclosed and preserved in a permanent public record.'"). Accordingly, Plaintiffs' argument that the SEC has waived its exemptions fails.
Plaintiffs have not alleged, for example, that the government officer failed to "retain custody" of the documents in permitting Ravnitzky to review the manual. See e.g., Students Against Genocide v. Dep't of the State, 257 F.3d 828 (D.C. Cir. 2001) (Secretary of State's display to United Nations Security Council of reconnaissance photographs which allegedly provided evidence of human rights violations in Bosnia did not constitute release of photographs into public domain, because Secretary retained custody).
With respect to the merits of the SEC's withholdings, the SEC has invoked both Exemptions 2 and 5. Exemption 2 protects from disclosure "matters" that "are related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552 (b)(2). Exemption 5 exempts inter or intra-agency memoranda that are part of the deliberative process of agency decision-making. 5 U.S.C. § 552(b)(5). The SEC has relied on these exemptions to protect the 33 exhibits to the Training Manual as well as the redacted portions of the main text of the Training Manual. Each is addressed below.
A. The Exhibits and Exemption 2
To withhold information under Exemption 2, this Circuit requires an agency to satisfy two requirements. First, it must show that such materials are "used for predominantly internal purposes." This includes a showing that the information is not agency "secret law" (i.e., internal "instructions to agency personnel . . . on how to regulate members of the public."). Crooker v. ATF, 670 F.2d 1051, 1075 (D.C. Cir. 1981) (en banc); Schwaner v. Department of Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990).
In Dep't of Air Force v. Rose, 425 U.S. 352 (1976), the Supreme Court explained that Exemption 2 "was not designed to authorize withholding of all matters except otherwise secret law bearing directly on the propriety of actions of members of the public. Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest." Id. at 369-70.
Once an agency establishes that the material is "predominantly internal," and not "secret law," the second requirement is a showing that disclosure would either "risk circumvention of agency regulation" (referred to as "high 2 information") or that "the material relates to trivial administrative matters of no genuine public interest" ("low 2 information"). Schiller v. NLRB 964 F.2d 1205, 1207 (D.C. Cir. 1992).
The SEC withheld 33 of the Training Manual's 50 exhibits under Exemption 2. Fourteen of these exhibits are "User's Guides" and 19 are "Internal Instructions and Forms." Upon careful review of the Humes and Lewis declarations, which provide a lengthy and detailed exhibit by exhibit accounting explaining the agency's withholdings, the Court finds that the SEC has properly withheld all exhibits under Exemption 2, with the exception of Exhibit 3.
1. User's Guide Exhibits
Fourteen of the 33 withheld exhibits are "user's guides" for Research Specialists in the EOIA/PA Office. The user's guides explain the internal computerized databases maintained by the Commission. Humes Decl. ¶¶ 6-7, 10, 11-24.
Specifically, 8 of the 14 exhibits (Ex. ##1, 4-6, 8-10, and 24) provide step-by-step, often keystroke-by-keystroke, instructions for accessing the SEC's computer systems and computerized databases. Id. All of these databases contain confidential information. In fact, access to one of the larger databases is restricted to some SEC staff members. Id. ¶ 7.
Of the remaining six exhibits, four (Ex. ##12-15) are one-page excerpts of indices to confidential historical records from a database that is not computerized. Humes Decl. ¶ 22. These excerpts explain how to retrieve personal information, such as the names of "registrants" and "defendants," and were properly withheld as high-2 information. Id. One exhibit (Ex. 2) is a picture of an internal worksheet generated by a computerized database discussed in Exhibit 1, and was also properly withheld under Exemption 2 information. Id. ¶ 12.
However, exhibit #3, withheld as low-2 information, must be released. As the Court understands the declaration and papers, this exhibit is a list of codes indicating the disposition of FOIA requests, including "whether the request was granted in full, granted in part, denied in full, and the reasons for nondisclosure." Humes Decl. ¶ 13. This disposition data, which may also include the numbers falling within each category of dispositions, would allow FOIA requesters to quantify the SEC's response to FOIA requests. This information is therefore of genuine public interest and not properly withheld as low-2 information.
The SEC's declaration on the contents of exhibit 3 is not clear. If exhibit #3 does not contain this information, the SEC may move for reconsideration on this disclosure.
In sum, 13 of the 14 user's guide exhibits were properly withheld because they set out "predominantly internal" practices and procedures of the Commission. Schiller, 964 F.2d at 1207. Defendants' affidavits make clear that the exhibits do not in any way contain "secret law." See Crooker, 670 F.2d at 1075.
Moreover, the SEC was concerned that disclosure of this material would create a great security risk to SEC computer and operations systems, allowing a member of the public to hack into computer systems and "circumvent agency regulation" or statutes (high-2 information).Schwaner, 898 F.2d at 794 (citations omitted); Crooker, 670 F.2d at 1074 (risk of circumvention of statutes).
Accordingly, the Court concludes that the SEC has properly withheld the user's guide exhibits under Exemption 2, with the exception of Exhibit #3.
Plaintiffs argue that exhibits 1, 2, 4, 9, 10, and 12-15 should also be disclosed because they are of genuine public interest. See Pls.' Cross-Mat. at 12-13. However, as noted supra, all of this information was withheld as "high 2," given the potential for security breaches (i.e., Ex. ##1, 2 4, 9, 10) and because it contains "confidential historical records" (i.e., Ex.## 12-15). Humes Decl. ¶ 11, 14, 19, 22. The public interest is nor a relevant consideration with high-2 information.See Crooker supra.
2. Instructions and Forms Exhibits
The remaining 19 of the 33 withheld exhibits (Ex. ##16-19, 23, 29-38, 41, 45-47) are internal forms and instructions used by Research Specialists and other FOIA/PA Office staff to correspond within the SEC.See Humes Decl. ¶ 25-43. These exhibits include blank forms and instructions used to (1) record documents reviewed in processing a FOIA request; (2) mark documents to be released and documents to be withheld; (3) retrieve documents from storage; and (4) forward a request to another Office or Division. Id.
This information is the paradigmatic "trivial administrative matter [that] is of no genuine public interest" (low-2 information). For example, exhibit 19 is a form for referring records responsive to a FOIA request to the FOIA liaison at another federal agency. Exhibit 46 is a copy of an internal sticker that the Research Specialist puts on the envelope in which a package of releasable documents is sent to the FOIA reading room. Id.
Plaintiffs do not dispute that these exhibits are "trivial," only that some are of "genuine public interest." However, Plaintiffs have offered nothing but conclusory assertions of public interest, and have failed to articulate how the exhibits in question, such as blank forms and instructions, would advance a "genuine public interest." See Pls.' Reply at 7-9.
Plaintiffs argue that exhibits 23, 29, 33, 35, and 41 should be released because they are of genuine public interest. See Pls. Cross-Not. at 9. Exhibit 23 is a list of "interim disposition codes," used by a Division of the Commission, not by the FOIA/PA Office. Exhibits 29, 35, and 41 are one-page blank forms containing no data that are used by FOIA/PA staff to log in Congressional requests, to assign requests to the category taking longer than 20 days, and to record personnel time. Humes Decl. ¶¶ 30, 36, 40. There is no genuine public interest in these purely administrative and internal blank forms, as they contain no data or information about how the SEC processes FOIA requests.
With respect to exhibit 33, entitled "Disposition of Records Upon the Closing of Cases," Plaintiffs argue that this document pertains to "closing of FOIA cases, which are matters affecting the public since it is the public asking for agency records." See Def.'s Not., Ex. B1 at I ("Plaintiffs' Administrative FOIA Appeal").
However, upon close consideration of the Humes declaration, it is clear that exhibit 33 does not explain how FOTA cases are closed at all. Rather, exhibit 33 illustrates storage methods for records from closed investigations. Humes Decl. ¶ 57.
Accordingly, the Court concludes that the SEC properly relied on Exemption 2 to withhold these exhibits to the Training Manual.
B. Main Text of the Training Manual and Exemptions 2 and 5.
The SEC has relied on both Exemptions 2 and 5 to justify its withholding of portions of the main text of the Training Manual. Before turning to a section-by-section analysis of the Training Manual, the Court observes some general points.
First, a version of the 69 page Training Manual is already available in the SEC public reading room. The publicly available Training Manual provides a description of FOIA's disclosure requirements and explains the "flow of FOIA requests" within the SEC. including how requests are processed and the time lines for such processing. See Lewis Decl. ¶¶ 9-10. This is exactly the kind of information Plaintiffs seek in this case. See Pls.' Reply at 7 (arguing for disclosure because "the manner by which FOIA requests are processed can be the linchpin that enables a FOIA requester/litigator to succeed" and "time deadlines are essential from the very moment a request is submitted to an agency.")
Second, most of the redacted parts of the Manual contain internal instructions to FOIA/PA Office Specialists on how to process requests through use of extensive computerized databases that contain highly confidential information. This material is accessible only to Research Specialists within the FOIA/PA Office; it is restricted information for Commission staff members, including FOIA liaisons in the SEC's various Divisions and Offices. Lewis Decl. ¶¶ 10-13.
As explained below, after careful review of the lengthy and detailed affidavits, it is clear that the more detailed version of the Manual that Plaintiffs seek in this case was properly withheld with the exception of: (1) definitions "m" and "t" and (2) Sections 21-22.
1. Table of Contents
The SEC has withheld from the Training Manual's Table of Contents the titles of the 33 exhibits to the Training Manual that were withheld and discussed above. This information has been properly withheld as Exemption 2 or low-2 information, i.e., information that is predominantly internal, concerns trivial administrative matters and is not of genuine public interest. Humes Decl. ¶ 44.
2. "Definitions" Section
The SEC has withheld several of the terms defined in the Definitions Section ("Section 4") of the Training Manual under Exemptions 5 and 2. The SEC argues that this information was properly withheld because it discusses the "legal significance of the Commissions' regulations," contains "legal advice" to the Research Specialist on how to exempt information, and reveals the types of "deliberations involved" in processing FOIA requests generally. Humes Decl. ¶ 46.
In so arguing, the SEC impermissibly seeks to withhold "secret" or "private" agency law. It is well-settled that FOIA requires disclosure of agency instructions or guidelines on substantive or procedural law affecting the public. See Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (Field Service Advice memoranda issued by the Chief Counsel to IRS was "private law" and not deliberative because it contained "legal analysis" that formed the basis of government's legal position in its dealings with taxpayers). Furthermore, matters are "predecisional" only when they concern an identifiable final agency decision, not when they relate to the ongoing processing and flow of FOIA requests. Coastal States Gas Core. v. DOE, 617 F.2d 854, 868 (D.C. Cir. 1980) ("characterizing documents as `predecisional' simply because they play into an ongoing audit process would be a serious warping of the meaning of the word.").
Consequently, as definitions "m" and "t" (pp. 3-4 of the Training Manual) contain general legal instruction to SEC staff on how to analyze FOIA requests, they must be disclosed.
3. Sections 8-16
The SEC has properly withheld Section 8 under Exemption 2, as it describes the FOIA/PA Tracking System contained in one of the withheld exhibits discussed above. Humes Decl. ¶ 47.
Sections 10, 11 and 12, which concern internal practices relating to assigning FOIA requests, searching the systems for responsive documents, and the indexing of computer databases, respectively, were also properly withheld under Exemption 2. See Humes Decl. ¶ 48-50.
This information is found on pages 9-10, 16-17, 17-23, 23-24, and 24-25 of the Training Manual.
Sections 13, 14, 15, and 16 were properly withheld under Exemptions 2 and 5, as they relate to "referral memorandums," which are memoranda sent by the FOIA/PA Office to other Offices and Divisions within the SEC requesting FOIA assistance, including assistance on what exemptions should apply and what types of documents should be responsive. Humes Decl. 91 25, 51-54. (describing nature of referral memorandum).
Section 17 is found on pages 25-40 of the Training Manual.
Section 17 of the Manual describes the internal steps Research Specialists must take in processing requests for over a dozen specific types of records, such as requests for the Chairman's correspondence, tapes of open meetings, requests from Congress people, or requests for contracts. The text redacted from Section 17 also outlines the internal steps the SEC follows when searching within the computerized databases for responsive information. Flumes Decl. ¶ 55. Accordingly, this information was properly withheld as Exemption 2.
Section 18 is located on pages 40-41 of the Training Manual.
Section 18 explains what documents a Research Specialist must include as part of the internal administrative record of processing a FOIA request. This section covers the location and duration of confidential correspondence within the Commission; documents that are to be requested from microfiche; and files found at the Federal Records Center. Flumes Decl. ¶ 56. This information was properly withheld under Exemption 2.
Section 19 is located on pages 41-42 of the Manual.
Section 19 explains internal procedures for storing and disposing of investigatory files, including storage locations during the pendency of a FOIA request. Thus, Section 19 is properly withheld under Exemption 2 as low 2 information.
Section 20 is located on pages 42-43 of the Manual.
This section describes in greater detail the administrative steps a Research Specialist must follow in the "first-in, first-out" or "FIFO" system for processing FOIA requests involving a large number of responsive records. The FIFO system itself and the underlying rationale is explained in the publicly available Training Manual. Humes Decl. 58. Accordingly, the redacted portions of the FIFO system were properly withheld under Exemption 2.
Sections 21-22 are found on pages 43-50 of the Manual.
The last two sections of the Manual — sections 21 and 22 — describe and provide legal instruction and examples to Research Specialists that illustrate how the exemptions apply to different types of SEC records. Humes Decl. ¶¶ 59-60. As explained, in Section III.B.2 ("Definitions" Section), such instruction is paradigmatic "secret" agency law that must be disclosed under FOIA.
Sections 21 and 22 also contain instruction on how to delete material from records as a ministerial matter. This information was properly withheld under Exemption 2 as low-2 information.
To summarize the Court's exemption findings, the SEC has met its burden of establishing that both the exhibits and the main text of the Training Manual were properly withheld with the exception of exhibit 3, definitions "m" and "t," and sections 21-22 insofar as those sections contain legal instruction on how to exempt records.
C. Reasonably Segregable
Under FOIA, "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). The segregability requirement limits claims of exemption to discrete units of information; to withhold an entire document, all units of information in that document must fall within a statutory exemption. See Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999) ("`It has long been a rule in this Circuit that nonexempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.'") (internal citation omitted); see also 5 U.S.C. § 552(b).
The SEC has released 17 of the 50 exhibits of the Training Manual. It has also released a redacted version of the Manual. Upon careful consideration of the lengthy and detailed agency affidavits, it is clear that the remaining information not ordered to be disclosed by this Court does not contain "any reasonably segregable" non-exempt material. The affidavits clearly establish on a section by section basis, why the exhibits and the discrete segments of the Training Manual fall under Exemption 2 or 5.
IV. Conclusion
For the foregoing reasons, the Court concludes that Plaintiffs' Motion for Summary Judgment is granted in part and denied in part, and Defendant's Motion for Summary Judgment is granted in part and denied in part. This case is dismissed, and all other Motions are dismissed as moot. An Order will issue with this Opinion.