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AUG v. AMTRAK

March 30, 1976

Stephen M. AUG, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant



The opinion of the court was delivered by: GREEN

 JUNE L. GREEN, District Judge.

 This matter comes before the Court on cross-motions for summary judgment. In this action, plaintiff, a reporter for the Washington Star, seeks access to portions of the minutes of the Board of Directors meetings of defendant National Railroad Passenger Corporation (Amtrak).

 Defendant National Railroad Passenger Corporation (Amtrak) was created pursuant to 45 U.S.C. § 541 as a "for profit corporation" and subject to the District of Columbia Business Corporation Act. Amtrak provides a national rail passenger service through contracts with private railroads. 45 U.S.C. § 561(a). The Rail Act prohibits other railroads from competing with Amtrak (without Amtrak's consent) in "intercity rail passenger service over any route over which the Corporation is performing scheduled intercity rail passenger service pursuant to a contract under [the Rail Act]". 45 U.S.C. § 561(c). Amtrak has received massive injections of federal funds as well as federal loan guarantees.

 Plaintiff Aug on March 1, 1973, pursuant to the Freedom of Information Act (FOIA), sought access to the minutes of Amtrak's Board meetings as well as other corporate documents which "would tend to show actions the board has taken, how the individual directors voted and what the nature of the discussions was at each of the board meetings." On March 14, 1973, then Amtrak President Roger Lewis denied access to the requested minutes and other documents on the basis of exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). By letter of March 20, 1973, plaintiff requested Amtrak to reconsider its determination. By letter of March 27, 1973, Mr. Lewis denied plaintiff's request for reconsideration. On March 26, 1974, plaintiff again wrote to Amtrak to determine whether there had been a change in Amtrak's position. Mr. Lewis indicated by letter dated April 1, 1974, that Amtrak maintained its position that the requested materials were not disclosable based on exemption five of the FOIA.

 Plaintiff filed his complaint in this action on July 15, 1974, seeking access under 5 U.S.C. § 552(a)(2)(B) to those portions of Amtrak's Board of Directors meetings and other corporate documents revealing:

 
(a) the actions that the Board has taken in setting Amtrak policy and interpretations of policy, (b) how individual directors have voted and (c) what the basis of the Board's decisions were. [Complaint, p. 2]

 Following extensive discovery and after reviewing the index of the withheld materials submitted by the defendant, the accompanying in camera memorandum, and a random sampling of the minutes of the Board for the years 1971, 1972, 1973, and 1974, this Court ordered on July 18, 1975, that both the index and the in camera memorandum should be disclosed to the plaintiff. Disclosure of the index and the in camera memorandum, in conjunction with the model agenda provided by Amtrak and the answers to interrogatories was deemed sufficient to satisfy the requirements of Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), and Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). The Court, by the same Memorandum and Order, denied plaintiff's request for involvement in in camera inspection and granted plaintiff's motion to compel filed May 12, 1975, thus requiring answers to two interrogatories which asked whether the information sought had been previously disclosed to members of the public or to adverse parties in other litigation. The Court denied a motion to compel filed by plaintiff on June 16, 1975, which requested answers to interrogatories regarding the probable injuries to defendant resulting from the disclosure of minutes.

 The Court further recognized in the Memorandum and Order that while the defendant had claimed six of the nine exemptions from disclosure enumerated in 5 U.S.C. § 552(b), the thrust of defendant's opposition rested upon its claim of exemption under 5 U.S.C. § 552(b)(5). The Court indicated that an analysis of the exemption 5 claim would be twofold. First, non-discoverable predecisional communications and discussions must be culled from discoverable agency decisions. See, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975); Ash Grove Cement Co. v. FTC, 167 U.S.App.D.C. 249, 511 F.2d 815 (1975), rehearing denied, 171 U.S.App.D.C. 285, 519 F.2d 934 (1975). Second, purely factual material that is not inextricably intertwined with policy-making processes must be separated from policy recommendations. See, EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Washington Research Project, Inc. v. Department of Health, Ed. & Welfare, 164 U.S.App.D.C. 169, 504 F.2d 238 (1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975).

 The Freedom of Information Act, 5 U.S.C. § 552, as amended by Pub.L. No. 93-502, 88 Stat. 1561, provides in pertinent part:

 
§ 552(a)(2) Each agency . . . shall make available for public inspection and copying --
 
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
 
(C) . . . instructions to staff that affect a member of the public;
 
§ 552(a)(5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of ...

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