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SEARS, ROEBUCK & CO. v. GSA

September 26, 1975

SEARS, ROEBUCK AND CO., Plaintiff,
v.
GENERAL SERVICES ADMINISTRATION, et al., Defendants, and THE COUNCIL ON ECONOMIC PRIORITIES, Intervenor



The opinion of the court was delivered by: BRYANT

 Bryant, D.J.

 In this action Sears, Roebuck and Company seeks a declaratory judgment to prevent the defendant General Services Administration ("GSA") and various federal government officials from disclosing to intervenor Council on Economic Priorities ("CEP") EEO-1 forms ("EEO-1's") and affirmative action plans ("AAP's") submitted by nineteen Sears branches to the General Services Administration and to the Office of Federal Contract Compliance, Department of Labor. The EEO-1 reports, which contain statistics concerning the ethnic and sexual composition of Sears' work force, are required of large government contractors under penalty of contract cancellation. *fn1" Affirmative action plans outline steps proposed by the contractor to correct effects of past employment discrimination. All parties have moved for summary judgment.

 This Freedom of Information Act case is before the Court in a reverse posture. Whereas the typical FOIA case is initiated by a party seeking to force the government to disclose information, here Sears has sued a government agency to prevent disclosure to the intervenor. In both types of cases a government official makes the initial decision as to whether to disclose the sought records, and more particularly whether the Act compels disclosure. Typically the party seeking the records sues in court after the government official has refused disclosure. *fn2" In the reverse FOIA case, as here, the government official has determined to disclose the documents, either because he finds that the Act compels disclosure, or that some other statute, regulation, or government policy requires him to comply with the request. Often the official does not reveal the basis of his decision to disclose in the reverse FOIA case.

 The Freedom of Information Act provides in the relevant operative section that each agency shall promptly "make available to any person" all "identifiable records", but that the Act "shall not apply" to nine categories of exempted records. 5 U.S.C. § 552. Sears contends that the documents whose disclosure it sought to prevent fall within four of the exemptions.

 This Court's Memorandum and Order of September 10, 1974, 384 F. Supp. 996, sets out the factual background and jurisdictional basis of the case, and contains the Court's initial ruling on the parties' cross-motions for summary judgment. In that Memorandum the Court ruled that the records do not fall within two of the Act's exempted categories, 5 U.S.C. § 552(b)(3) (exempted by statute) and (b)(7) (investigatory files), *fn3" and directed Sears to exhaust with the agency its claim pursuant to the policies of two other exemptions, (b)(4) (trade secrets and confidential commercial data) and (b)(6) (personnel records).

 The Standard of Review

 The Court remanded the case to the agency for consideration under its own procedure, 41 C.F.R. § 60-40.3 et seq., with the expectation that Sears and the agency would reach an agreement regarding at least part of the material. Sears declined to designate 197 of 460 pages as exempt under (b)(4) and (b)(6), and GSA has released these documents. Moreover the agency has accepted Sears' arguments as to portions of the documents naming Sears' employees and giving identifying details and evaluative comments. The intervenor has acquiesced to the deletion of employee names, addresses and phone numbers, but argues that the identifying characteristics must be disclosed pursuant to the Freedom of Information Act. Finally, as to a portion of the pages it declined to designate, Sears has not objected to the agency's remand decision.

 The parties are again before the Court. Both Sears and CEP argue that the Court should set aside portions of the agency's order.

 However, Sears does have a right to a declaratory judgment on the issue of whether the contested material is exempt, if the government official's decision to disclose is based solely on his finding that he is compelled to do so by the Act. The "actual controversy", as required by the Declaratory Judgment Act, 28 U.S.C. § 2201, concerns whether contested records are exempt under the FOIA. Here Sears would simply be seeking a judicial interpretation of the law which it could use to convince the agency that the Act does not require disclosure. Thus the viability of Sears' cause of action under the FOIA depends entirely on the basis of the defendants' decision to disclose.

 The government's initial pleadings indicated that it desired to release the records even if not compelled to do so by the FOIA. *fn4" Accordingly in the September 10 Memorandum and Order this Court held that the FOIA does not apply to this case, and that to prevail Sears must show that the decision to release should be set aside under the judicial review section of the Administrative Procedure Act as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law". 5 U.S.C. § 706(2)(A). Under this view of the case, the FOIA exemptions were relevant only as guidelines in measuring the agency's action.

 More recently the government has made clear its position in this regard, which is that it has not yet determined whether it will release the data should the Court find that release is not compelled under the FOIA. *fn5" Accordingly, it is appropriate for this Court to issue a declaratory judgment as to whether the contested documents are exempt under the Freedom of Information Act. *fn6"

 The next legal issue, over which there has been much confusion and about which there has been much discussion by the parties in their papers, concerns the standard to be applied by this Court in its review of the agency's decision. All parties agree that the Information Act directs the Court to review, de novo, CEP's challenge to the agency's decision not to release portions of the documents. 5 U.S.C. § 552(a)(3). As to Sears' challenge to the agency decision, the standard of review depends wholly on the applicability of the Freedom of Information Act. The intervenor and the government correctly argue that if the Court were reviewing the agency decision pursuant to the Administrative Procedure Act it could set aside the agency's decision only on a finding that the decision was "arbitrary and capricious". Camp v. Pitts, 411 U.S. 138, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). But since ...


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