FOIA exemptions to the information sought by D.C. NOW. Having determined that the information did not fall within an exemption to the Act, they never reached the question of discretionary disclosure of the data. As a result, the record reflects no meaningful consideration of whether it would be an appropriate exercise of their discretion to disclose the exempt information. Such a failure to exercise any discretion, and the resulting failure to engage in any meaningful consideration of this question, constitutes an abuse of that discretion.
The Court must also consider the public interest in disclosure in determining whether the agency abused its discretion in determining to disclose the exempt information. Charles River Park "A", Inc. v. H.U.D., supra at 943. The public interest in disclosure asserted by D.C. NOW is that D.C. NOW intends to use the documents to monitor the companies' compliance with the equal employment opportunity laws. Much of the information D.C. NOW seeks has been determined not to be exempt information. With access to this information, D.C. NOW should be able substantially to achieve its public interest goals, even though some portions of the documents would not be disclosed. Balanced against the public interest is the insurance companies' interest in protecting their competitive position and the employees' interest in their privacy. Disclosure of the exempt information would seriously impair these interests. On the balance, the slight harm to the public interest from non-disclosure of these documents is outweighed by the serious harm to the employees and the companies which would result from the disclosure of these documents.
The companies also claim that the representation of confidentiality allegedly made by the government when the companies submitted these documents somehow prevent their disclosure. As to those portions of the documents which are subject to mandatory disclosure under the Act, any such representations would not preclude their disclosure. A government agency cannot evade the requirements of the FOIA simply by representing to an information supplier that the information will be kept confidential. See Legal Aid Society of Almeda County v. Shultz, supra at 776; Lawyers Cooperative Publishing Company v. Schlesinger, supra at 4.
With respect to those portions of the documents containing exempt information, the alleged representations of confidentiality present a more difficult question of whether the agencies abused their discretion in determining to disclose this information in light of such representations. Initially, the parties are in dispute as to whether any such representations were made. Dr. Whitman of the ICS testified for the government that to the best of his knowledge the ICS did not give assurances of confidentiality.
However, Dr. Whitman, when questioned as to whether he was sure such assurances had not been made, only stated that the ICS had been instructed not to give such assurances.
The insurance companies adduced testimony to the effect that the company understood that the data they submitted would be treated confidentially.
The Court is persuaded, after evaluating the testimony on this matter, that the companies were led to believe that the documents submitted by them would be accorded confidential treatment.
The information contained in the AAP's is much more extensive than it need be under the applicable Executive Orders and regulations. It appears that such extensive information was included by the companies in reliance on these assurances of confidentiality. The agencies did not investigate the companies' claims about representations of confidentiality or consider whether the discretionary disclosure of information was appropriate in light of such assurances. Under these circumstances, the disclosure of the exempt information was an abuse of discretion.
While it may be that it is not always an abuse of discretion to disclose after assurances of confidentiality have been made,
the agency must at least give some meaningful consideration to whether disclosure under such circumstances is appropriate.
Pursuant to 41 C.F.R. §§ 60-40.8 et seq., the insurance companies were permitted to file written objections to the disclosure of these documents with the ICS and OFCC. They were not given an oral hearing on their claims of exemption. Metropolitan claims that the agencies abused their discretion and denied it due process by failing to hold such a hearing. Similar allegations have met with defeat in the courts. See Chrysler Corporation v. Schlesinger, supra at 1483; Lawyers Cooperative Publishing Company v. Schlesinger, supra at 3. This Court is also of the opinion that the failure to hold an oral hearing did not constitute an abuse of discretion or a deprivation of due process.
The disclosure of those portions of the documents containing exempt information would irreparably injure the insurance companies. Once disclosed, such information would lose its confidentiality forever. As has been already noted in the discussion of the merits, there is a strong likelihood that disclosure will cause substantial injury to the companies and their employees. Since the confidentiality of this information can never be regained, the above injuries would indeed be irreparable.
Neither D.C. NOW nor the federal defendants will suffer any substantial harm from nondisclosure. D.C. NOW complains that it will be seriously injured by the grant of a preliminary injunction because the delay in disclosure will cause the data to become increasingly stale.
It is noted that most of the information contained in the documents does not fall within the terms of the preliminary injunction. To the extent that D.C. NOW will suffer any injury from the grant of a preliminary injunction, such injury is clearly outweighed by the serious and irreparable injury to the insurance companies which would result from a denial of injunctive relief.
The public interest will not be harmed but will be served by the grant of injunctive relief with respect to the exempt information. The public interest in disclosure of this information through its use to monitor the companies' compliance with equal employment opportunity laws and to remove informational barriers to equal employment and the fear of rejection suffered by potential job applicants will not be impaired by the grant of injunctive relief. The information which will be disclosed, which amounts to a substantial portion of the information sought by D.C. NOW, should be sufficient to foster these goals. Additionally, the public interest in protecting the privacy of the companies' employees and in insuring that the agencies fulfill their responsibilities under the Act will be served.
Oliver Gasch / Judge
Upon consideration of the motions for a preliminary injunction brought by the John Hancock Mutual Life Insurance Company, the Metropolitan Life Insurance Company, and the Prudential Life Insurance Company of America, the opposition thereto, and the entire record herein, and for the reasons set forth in the Memorandum attached hereto, it by the Court this 6th day of December, 1976,
ORDERED that the motions for a preliminary injunction be, and hereby are, granted with respect to work force analyses, the department lists, the statistical and narrative data on projected promotions, the reasons for an employee's termination contained in John Hancock Mutual Life Insurance Company's termination logs, the narrative comments concerning an employee's performance, preferences or comments where there is a reasonable possibility that the employee could be identified contained in the AAPs and any portions of the CRRs which incorporate this data from the AAPs; and it is further
ORDERED that the motions for a preliminary injunction in all other respects be, and hereby are denied.
Oliver Gasch / Judge