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AFGE v. DEPARTMENT OF ARMY

December 5, 1977

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL., Plaintiffs,
v.
DEPARTMENT OF THE ARMY, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 Plaintiffs William McLean and the American Federation of Government Employees ("AFGE") bring this action under the Freedom of Information Act ("FOIA") *fn1" seeking complete disclosure of an Army Inspector General Investigation Report. The Report concerns alleged personnel management irregularities at the U.S. Army Inter-Agency Communication Agency ("USAICA"), located in Winchester, Virginia. The Army made available parts of the Report but refuses to disclose: (a) the "discussion, conclusions, and recommendations" contained in the Report; and (b) the testimony of three witnesses given to the investigating officer during his investigation. Defendants contend that these portions of the Report are protected from disclosure pursuant to Exemption Five, which has been interpreted to cover predecisional, deliberative intra-agency memoranda and certain confidential testimony. *fn2" Plaintiffs argue that the contested material is not exempt and that the entire Report is mandatorily disclosable as a "final opinion." *fn3"

 Presently before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, the Court concludes that defendants' motion should be granted and plaintiffs' motion should be denied.

 BACKGROUND

 A. The Inspector General Process.

 In considering the issues raised in this action, it is useful at the outset to discuss briefly the Army Inspector General process and the role of the Report at issue within that process. Army Regulation No. 20-1, which prescribes policies and procedures for Inspector General activities, describes Inspectors General as the "confidential representatives" of their commanders. They have the general duty of inquiring into and reporting upon "matters affecting the performance of mission and the state of economy, efficiency, discipline, and morale of the activity in which they serve." *fn4"

 The functions of the Inspectors General include, inter alia, conducting investigations at the direction of their commander and reporting thereon to their commander. *fn5" In reporting on an investigation, Inspectors General (or their investigatory officers) should "discuss the evidence presented and . . . reach conclusions and make recommendations based upon available evidence." *fn6" When a commander has ordered the investigation, the senior Inspector General within the command reviews the investigation report and submits it to the commander with recommendations. The commander shall approve or disapprove the report in its entirety or in part and take appropriate action on the approved portions. *fn7" The commander is not required to accept the conclusions and recommendations in the report, but may go outside the record contained in the report and even completely disregard it in reaching his decision about the matter investigated. *fn8"

 B. Facts of This Case.

 The facts in this case are not disputed. Plaintiff McLean is a civilian employed in USAICA, a unit of the U.S. Army Communications Command ("USACC"), who requested that the Inspector General of USACC investigate alleged irregularities in personnel management at USAICA. *fn9" The Commander of USACC, the final decisionmaking authority in regard to the allegations, ordered the Commander of USACC-CONUS (a subordinate command) to investigate the allegations. Consequently, Colonel Rusanowsky, the Inspector General of USACC-CONUS, investigated the matter and prepared the Report at issue. After considering the Report, the Commander of USACC (acting through his Deputy Commander) noted his approval of the Report on a "Disposition Form." *fn10" The Commander also directed that a letter be sent to plaintiff McLean describing the conclusions resulting from the investigation and the intended corrective action. *fn11"

 Soon thereafter, McLean requested a copy of the Report. The Report contains seven different sections. Parts I-III, containing introductory matter, were disclosed; Part IV, entitled "Allegations, Evidence, Discussion, and Conclusions," was only disclosed to the extent of the "Allegations" and "Evidence" portions; Parts V, VI, and VII, entitled "Discussion," "General Conclusions," and "Recommendations," were not disclosed. Attached to the Report are the statements of witnesses interrogated, but the statements of three witnesses were not disclosed. These witnesses would not consent to disclosure of their testimony. Plaintiff McLean challenged the nondisclosure of parts of the Report and has exhausted his administrative remedies. *fn12" On January 11, 1977, McLean and plaintiff AFGE filed this action under the FOIA. Both plaintiffs and defendants have moved for summary judgment.

 MERITS

 A. Plaintiffs' Argument that the Entire Report is Disclosable as a "Final Opinion."

 In NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975), the Supreme Court characterized final opinions as " primarily post-decisional -- looking back on and explaining . . . a decision already reached or a policy already adopted . . .." The Court added that disclosure of final opinions "poses a negligible risk of denying to agency decisionmakers the uninhibited advice which is so important to agency decisions." 421 U.S. at 152 n.19. In the case at bar, the Inspector General's Report was prepared for the review of the Commander, who was the final decisionmaking authority in regard to the matters investigated. The Report is entirely predecisional in its nature and purpose and does not necessarily explain or justify a final decision subsequently reached. *fn13" Moreover, full disclosure of this and future Inspector General Reports as final ...


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