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NATIONAL TREASURY EMPLES. UNION v. UNITED STATES D

April 24, 1980

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Defendant.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE

This case is before the Court on the parties' cross-motions for summary judgment. Plaintiffs, the National Treasury Employees Union ("NTEU"), and Mr. Frank Ferris, an NTEU employee, bring this suit under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"); they seek to examine portions of the Multi-District Collective Bargaining Contract Administration Handbook ("Handbook"). Plaintiffs submit that these documents should be produced pursuant to either 5 U.S.C. § 552(a)(2)(C) or 5 U.S.C. § 552(a)(3). Defendant, the United States Department of the Treasury, Internal Revenue Service ("IRS"), contends that the documents at issue are exempt from disclosure by virtue of 5 U.S.C. §§ 552(b)(2), (3) & (5). Because material facts are not in dispute, the Court finds that summary judgment is appropriate. It finds further after examining the documents in camera, that the withheld portions of the Handbook are protected from disclosure under 5 U.S.C. § 552(b)(2) ("exemption 2"), and that defendant's motion for summary judgment must be granted.

 I. BACKGROUND

 Plaintiff NTEU is the exclusive bargaining representative of all bargaining unit employees of the IRS and in this capacity, NTEU is authorized to negotiate and administer collective bargaining agreements on behalf of such employees. By letter dated June 7, 1978, plaintiffs, pursuant to the FOIA, 5 U.S.C. § 552, requested the IRS to disclose the Multi-District Collective Bargaining Contract Administration Materials ("Handbook"). This document consists of materials relating to the Multi-District Contract ("contract"), a labor agreement negotiated between NTEU and the IRS establishing working conditions for IRS employees. The Handbook, which defendant describes as a mere draft, is organized according to the articles of the Multi-District Contract. For each article, the Handbook has five distinct subdivisions: 1) the contract language; 2) agency regulations applicable to the contract; 3) official decisions by arbitrators, agencies or courts which pertain to the particular article; 4) the bargaining history surrounding the article; and 5) the IRS's interpretation of the article.

 The IRS responded to NTEU's FOIA request by disclosing the first three parts of the Handbook, but it declined to produce parts 4 and 5, the bargaining history and management's interpretation of the contract. Plaintiffs' suit concerns these two portions of the Handbook. Part 4, the bargaining history, relates in a factual fashion, the evolution of each article. It describes similar provisions in earlier collective bargaining agreements, explains the proposals and counterproposals offered during the negotiation process, and details the arguments which the negotiators urged on behalf of the various proposals. Part 5 of the Handbook contains interpretations of each article in the contract. These interpretations serve as instructions for IRS executives whose responsibilities involve interaction with the NTEU.

 II. THE HANDBOOK NEED NOT BE DISCLOSED UNDER 5 U.S.C. § 552(a)(2)(C).

 The FOIA provides for disclosure of agency documents in a variety of ways. Apart from the catch-all command of 5 U.S.C. § 552(a)(3), subsections (a)(1) and (a)(2) may require publication, indexing, or general availability to the public. Before examining the disclosure exemptions of 5 U.S.C. § 552(b), the Court must determine whether the entire Handbook, not just the withheld portions, falls within the scope of one of the FOIA's special disclosure provisions. Specifically, the Court must address plaintiffs' claim that the document at issue must be made public pursuant to 5 U.S.C. § 552(a)(2)(C), *fn1" which provides:

 
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying
 
(C) administrative staff manuals and instructions to staff that affect a member of the public.

 Plaintiffs submit, somewhat sophistically, that, as federal employees, they are members of the "public" who are affected by the Handbook; thus, they conclude that it should be published. Such a reading of the statute, however, strips all sense from the phrase "members of the public." Under plaintiffs' approach, who would not be a member of the public? If Congress intended 5 U.S.C. § 552(a)(2)(C) to benefit everyone, why wouldn't the statute merely compel publication of "all administrative staff manuals"?

 Further, judicial construction of 5 U.S.C. § 552(a)(2)(C) has been limited to staff manuals which fit the above description. Jordan v. United States Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753 (D.C. Cir. 1978) (en banc); Cox v. United States Department of Justice, 576 F.2d 1302 (8th Cir. 1978); Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1976); Hawkes v. IRS, 467 F.2d 787 (6th Cir. 1972). In Cox v. United States Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978), the Eighth Circuit ruled that, while "information clarifying substantive or procedural law must be disclosed," "mere "housekeeping' matters . . . do not "affect a member of the public' and therefore are not covered by (a)(2)(C)." Further, the distinction between agency personnel and the public at large has been recognized as salient for determining public interest under other portions of the FOIA. Cox v. United States Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 4-5 (D.C. Cir. 1979) (exemption 2 protects material of interest to federal personnel, but of no interest to the public). The Handbook, here, provides neither substantive nor procedural guidance for IRS officials in their administration of tax policy. Instead, it establishes the terms and conditions of the employment relationship between IRS executives and employees. Such housekeeping details simply do not affect the public within the meaning of 5 U.S.C. § 552(a)(2)(C) and accordingly, the defendant need not make the Handbook available for public inspection and copying.

 Having determined that the Handbook is not subject to disclosure under the terms of 5 U.S.C. § 552(a)(2), the Court must resolve whether the withheld segments are ...


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