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April 25, 1977

Inta CELMINS and Thomas Burke, Plaintiffs,
UNITED STATES DEPARTMENT OF the TREASURY, INTERNAL REVENUE SERVICE, Donald C. Alexander and James W. Caldwell, Defendants. James MONTGOMERY and George Roberts, Plaintiffs, v. UNITED STATES DEPARTMENT OF the TREASURY et al., Defendants

The opinion of the court was delivered by: GESELL


These cases which were consolidated for oral argument arise under the Freedom of Information Act, 5 U.S.C. § 552, and present questions about the scope of exemption 6 of the Act. 5 U.S.C. § 552(b)(6). Both cases involve requests for files generated by the Internal Revenue Service in selecting among applicants for promotions. Plaintiffs are unsuccessful applicants who have filed grievances under their Union's contract with the IRS. Their requests were granted in part and were denied in part; the denials being based on exemption 6. Plaintiffs have exhausted their administrative remedies, and these cases are now before the Court on cross-motions for summary judgment, there being no material facts in dispute.

 Under exemption 6 an agency is allowed to withhold:

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

 It is only when an invasion of privacy would be "clearly unwarranted" that an agency may refuse to release documents under exemption 6. To determine whether or not an invasion of privacy is warranted the Court must conduct a "balancing test." Dept. of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1975); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971). Unfortunately, as is the case with all balancing tests, it is not clear exactly what considerations are to be balanced. See Ditlow v. Shultz, 170 U.S.App.D.C. 352, 517 F.2d 166 (1975); and Rural Housing Alliance v. Dept. of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73 (1974). It is settled, however, that the Courts are to "tilt" in favor of disclosure. Id.; Getman v. NLRB, supra.

 I. Celmins and Burke

 In Celmins three IRS attorneys applied for a promotion to the position of Estate Tax Attorney, GS-12. The two unsuccessful applicants requested the promotion file created by the agency in filling the position. *fn1" Some general documents were provided, along with all the material compiled on the plaintiffs themselves. However, three key documents from the successful applicant's promotion file were withheld entirely or in part. These were:

(1) the promotion appraisal form;
(2) the promotion evaluation scoresheet; and
(3) the promotion application.

 The promotion appraisal is an analysis by a supervisor of the applicant's work over the last twelve months. It provides a numerical rating on ten different criteria and an evaluation in narrative form. The promotion evaluation scoresheet contains numerical ratings on 15 different criteria, a sum of these individual scores, and narrative comments of the promotion panel. The application is a standard form on which the applicant notes present position and any awards or training relevant to the promotion. From these documents, the IRS released the panel comments and cumulative numerical score contained in the promotion evaluation scoresheet, and the applicant's present position contained in the promotion application.

 In essence, the withheld documents provide a detailed analysis of the work performance of the successful applicant and some indication of his education and training. The agency refused to turn over this data because the identity of the successful applicant is known to plaintiffs. It contends that under Dept. of Air Force v. Rose, supra, sensitive information may be withheld whenever it can be identified with a particular individual. However, rather than establishing such a concrete rule, Rose endorses a comprehensive balancing test. Moreover, unlike Rose, there is no allegation that the information which would be released in this case is stigmatizing. Id., 425 U.S. at 357, 96 S. Ct. 1592. In fact, the opposite is likely to be true. Nevertheless, the evaluation of an individual's work performance, even if favorable, is personal information and its release is an invasion of privacy. Id. It will be assumed, but not decided, that even the release of information about an applicant's education and training is likewise an invasion of privacy. The issue is whether on balance this invasion is "clearly unwarranted."

 On the other hand, the intrusion into the privacy of the successful applicant should the contested data be released is a limited one. This information would only be meaningful to those people who are already aware of his identity. *fn2" This would mean a number of people at the Union and the IRS. There is no indication or reason to believe that his identity and work performance would become generally known, *fn3" and "exemption 6 ...

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