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RYAN v. DOJ

July 11, 1979

Tom W. Ryan et al., Plaintiffs,
v.
Department of Justice, Defendant. Charles R. Halpern et al., Plaintiffs, v. Department of Justice, Defendant.



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

The question presented in these consolidated proceedings is whether the Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires disclosure to the plaintiffs of responses by United States Senators and their judicial nominating commissions to a questionnaire on judicial nominations prepared and sent to them by the Attorney General. The Court rules that disclosure is not required.

 Pursuant to the Omnibus Judgeship Act of 1978, *fn1" President Jimmy Carter issued Executive Order 12097 *fn2" which established judicial merit-selection guidelines. The Attorney General's questionnaire sought from the Senators a description of the efforts extended to comply with the guidelines.

 The defendant Department of Justice denied the plaintiffs' FOIA requests for the material, viewing the questionnaire responses as communications between the President and Senators, closely linked to his constitutional appointment powers, and therefore not "agency records" subject to FOIA. Even assuming the responses are FOIA records, the Department argues that they are exempt from mandatory disclosure as pre-decisional advisory material under § 552(b)(5).

 The parties have filed cross-motions for summary judgment. *fn3" The Court has considered the several memoranda of points and authorities, the argument of counsel and other relevant case law. It has also had the benefit of an In camera review of a random sample of five questionnaire responses. Based on the undisputed material facts, the Court concludes as a matter of law that the questionnaire responses are not Department of Justice records for purposes of FOIA. For the reasons outlined below, the complaints are dismissed and summary judgment will be entered for the Department of Justice.

 BACKGROUND

 The material facts in this litigation are not disputed. The Omnibus Judgeship Act requires the President to provide for merit-selection of federal judges and thereby improve upon traditional bases of appointment. Facing the prospect of filling 117 new federal district court judgeships, President Carter issued merit-selection guidelines in EO 12097. Nominees are to have the requisite "character, experience and ability, and commitment to equal justice;" be "even-tempered and free of biases against any class of citizens or any religious or racial group;" and possess "outstanding legal ability and competence."

 
1. Describe the effort which was made to identify qualified candidates.
 
2. Describe the process by which all persons identified and interested were considered.
 
3. How many persons were considered?
 
4. With respect to each person recommended, does he or she meet each of the standards set forth in Section 2 of the Executive Order?
 
5. With respect to each person recommended, submit a copy of any questionnaire or resume of biographical ...

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