48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976).
It may be that many or most of the sixty-three documents contain exactly the type of "core" personal information, e.g., marital status or college grades, the release of which will normally constitute a clearly unwarranted invasion of privacy. But two considerations militate against the government's claim of blanket exemption even in the case of core personnel records. First, it is difficult to understand how the release of some of these documents would in any way infringe on Mr. Propper's privacy. For example, Document 12 is a one-page record reflecting excepted appointment status, and Document 47 is a similar record showing a salary increase. Similar information has already been released to plaintiff and is generally a matter of public record under 5 C.F.R. § 294.702 (1977). Second, the b(6) exemption incorporates a balancing test under which even rather substantial invasions of privacy may theoretically be outweighed by a showing of strong public interest in disclosure. See generally Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976).
With regard to the sixty-fourth document, the government has as yet offered no explanation of how the document fits into the category of an investigatory record which was compiled for law enforcement purposes. The agency offers only its conclusory explanation that the record is clearly investigatory and that its release would constitute an unwarranted invasion of personal privacy. This is also a document regarding which the plaintiff, and the Court, have an inadequate factual basis on which to make a reasoned evaluation of the claimed exemption.
Because the requirements of Vaughn and Mead Data have not been fulfilled, and because the agency has failed to carry its burden of sustaining claimed exemptions as to many of the disputed documents, the instant motions must be denied.
In order to expedite the ultimate resolution of this litigation, the Court should note that the plaintiff has not responded to the agency's index of documents in a particularized way. Most important, plaintiff has not explained how its asserted purpose in obtaining these records has anything to do with many of the listed documents. For example, Document 20 is Standard Form 176, a two-page record concerning life insurance coverage. There is clearly a substantial privacy interest associated with this document and it is difficult to see how any public interest would be served by its release. Rather than granting defendant partial summary judgment as to this and a number of other documents in which there would appear to be no conceivable public interest, the Court invites plaintiff to either withdraw its request as to such documents or to submit additional affidavits explaining its purpose in continuing to seek release of the information.
Finally, the plaintiff has made some rather ambiguous suggestions in its papers that the government's response has been inadequate because all relevant documents are not included on the current list of sixty-four. If that is the case, plaintiff has open to it adequate procedures under the discovery rules to determine whether any other agency records are properly encompassed within the scope of its original administrative request and the instant complaint.
An appropriate order will issue of even date herewith.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 444 F. Supp.]
Consistent with the Memorandum Opinion issued of even date herewith, it is by the Court this 16th day of January, 1978,
ORDERED that defendants' motion to strike the affidavit of Richard L. Bast be, and the same is hereby, granted. The Clerk of the Court is hereby directed to strike the Bast affidavit from the record in this action. And it is
FURTHER ORDERED that defendants' motion to dismiss, or in the alternative, for summary judgment be, and the same is hereby, denied; PROVIDED HOWEVER, that the denial is without prejudice to the defendants' renewal of their motion after complying with applicable justification and itemization requirements in light of Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). And it is
FURTHER ORDERED that defendants provide additional factual description of Documents 15, 16, 31, 61, 62, and 64, and any reasonably segregable portions thereof. Such description shall be served upon plaintiff and filed with the Court no later than 15 days from the date of this order.
UNITED STATES DISTRICT JUDGE