Procedure Act in its campaign to prevent disclosure. The FOIA itself gives Sears no cause of action in the face of a government decision to disclose, if that decision is not based on the requirements of the Freedom of Information Act. If the Act requires disclosure then the agency must make the records available regardless of any argument Sears might make. If the records are exempt then the Act "shall not apply", § 552(b). The Act simply does not prohibit disclosure of records which are exempt from its coverage.
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.
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.
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.
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 Sears has filed a valid declaratory judgment action on whether any of the documents are exempt under the FOIA, this Court will apply the de novo standard mandated by the Information Act.
The data which Sears seeks to prevent from disclosure under exemption (b)(4) consists of various types of employment statistics for 19 Sears units. Section D of the EEO-1 reports consists of employment totals in nine occupational categories for each Sears unit, with columns detailing the sex and minority group status of employees. The Affirmative Action Plan reports include 19 job categories similarly broken down by race and sex, with separate tallies for hiring, promotions, terminations, training, and projected time tables for reaching affirmative action goals.
The (b)(4) exemption applies to "trade secrets and commercial or information obtained from a person and privileged or confidential". The September 10 Memorandum and Order discussed the applicability of that section to this case, and pointed out that the crux of the issue here is whether the EEO-1's and AAP's contain "trade secrets" or other material the disclosure of which will "cause substantial harm to the competitive position of" Sears. National Parks and Conservation Association v. Morton, 162 U.S. App. D.C. 223, 498 F.2d 765, 770 (1974). After reviewing the documents submitted for in camera inspection and the affidavits submitted by the parties
the Court concludes that Sears has not sustained its burden of showing that any materials contained in the EEO-1's and AAP's are exempt under (b)(4).
Since the September 10 remand Sears has submitted six affidavits from five experts,
in support of its contention that release of the data contained in the documents would cause it substantial competitive harm. The affidavits filed by Sears' experts generally consist of assertions that a competitor could deduce from the EEO-1 and AAP employment totals estimates of Sears' labor costs, sales volume, and plans for expansion, coupled with claims as to the harmful effects which the release of the data might have upon Sears' competitive position. The affidavits, however, do not show that release of any or all the data would cause Sears substantial competitive injury, except for general assertions to that effect. Sears' experts have also declined to compare accuracy of estimates which could be made from the contested data with estimates which can be made from data which is presently available to Sears' competitors. Obviously the data is of some value, but without such a comparison the Court cannot, based on the affidavits, make a finding that release of the documents would cause Sears "substantial competitive injury".
A second deficiency which runs through the Sears' affidavits is the assumption by the Sears' experts that the GSA is releasing EEO-1's and AAP's for all Sears' units for several years. Since the information request at issue in this case is confined to nineteen Sears' units any ruling also must be so confined. Sears may raise its arguments relating to the release of other data only at the time the government proposes to release that data.
The deficiencies in the Sears' affidavits are ably identified in the affidavit of Sar A. Levitan, relied on by the defendant and intervenor. The Court embraces his affidavit and adopts his conclusion that the "EEO-1 and the affirmative action reports could not be of great usefulness to a Sears' competitor. The information which would be released could provide only the roughest approximation of sales volume, growth patterns, or labor costs. Equally accurate approximations are already possible without the use of these data".
Exemption (b)(6) applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy". The exemption requires the court to "balance the right of privacy of affected individuals against the right of the public to be informed" keeping in mind that "the statutory language 'clearly unwarranted' instructs the court to tilt the balance in favor of disclosure". Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 674 (1971); Rural Housing Alliance v. U.S. Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73, 77 (1974).
All parties agree that the names, addresses and phone numbers of employees should be deleted. In addition, the agency proposes to delete certain other identifying information and comments. CEP challenges this decision under the Freedom of Information Act.
The GSA deletions which the intervenor challenges fall into two categories -- (1) comments including reasons applicants were not hired, reasons employees left Sears, and comments concerning promotions; and (2) service, termination, and promotion dates. The Court finds that the Freedom of Information Act requires that GSA disclose material contained in both these categories.
The agency in its remand opinion and the government in its brief identified relatively few pages with comments. Moreover most of these comments are harmless and certainly are not the type of "files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy".
CEP argues that the comments are important to assessing employment discrimination. After weighing the public interest in disclosure of these comments and taking into consideration the character of the comments as well as the unlikelihood that it will be possible for members of the public to attach the comments to particular employees of Sears, the Court concludes that the comments do not fall within exemption (b)(6).
The dates of change in employment status involve no right of privacy directly. Apparently, the agency deleted them on the theory that these dates could be used to identify employees. Since these dates are important to comparing the advancement of ethnic minorities with others, these dates could be important to a study of Sears' employment practices with respect to minorities. Moreover, except for the comments discussed above, the other data is not personal in nature.
Again the public interest in disclosure of the dates of change in employment status, which are relevant to assessing employment discrimination, outweighs the minimal privacy interest especially since it is unlikely that the information can be tied to any individual.
Accordingly, it is this 26th day of September, 1975
ORDER that summary judgment be, and hereby is, granted for intervenor and in part for defendant, in accordance with this memorandum.
William B. Bryant / JUDGE