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COPUS v. ROUGEAU

December 22, 1980

David A. COPUS, Plaintiff,
v.
Weldon ROUGEAU et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

This case is before the Court on the defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. Under the Freedom of Information Act, 5 U.S.C. § 552 (1976) (FOIA), David A. Copus (Copus), an attorney, seeks to compel the United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) to permit him to inspect and copy OFCCP documents reflecting the forecast of government contractors to be reviewed under Executive Order 11246 for the first quarter of fiscal year 1980 in the Chicago OFCCP Region. The defendant Department of Labor (DOL) is responsible for enforcing Executive Order 11246, reprinted in 42 U.S.C. § 2000e (note) (1976 and Supp. II. 1978) (E.O. 11246), which prohibits discrimination by federal contractors and requires them to implement written affirmative action plans. The Secretary of Labor has delegated the authority for the enforcement of E.O. 11246 to the OFCCP, of which defendant Rougeau is the Director. Examination of the record compels the conclusion that no material issues of fact remain in dispute, that the documents are exempt from disclosure under exemption seven of FOIA, 5 U.S.C. § 552(b)(7)(A) (1976), and that the defendants are therefore entitled to summary judgment.

 On August 28, 1979, plaintiff sought from the Chicago Regional OFCCP office "a copy of all forecasts of contractors to be reviewed in FY 1980." Receiving no response, he treated the request as constructively denied and filed an appeal. One month later, the Chicago office replied in writing that it would grant Copus access to the requested materials upon remittance of the search and copying charges. Meanwhile, the DOL acknowledged the appeal and promised an expeditious disposition. Copus promptly forwarded appropriate monies to the Chicago office.

 Having not received the requested documents, plaintiff contacted the Assistant Regional Administrator (ARA) in Chicago, who assured him that the materials would be forwarded promptly. Four days later, Copus learned that the requested forecasts would not be provided. This action was then instituted. Five weeks thereafter, the Solicitor of Labor informed the plaintiff that his administrative appeal had been denied pursuant to, inter alia, Exemptions 5 and 7 of the FOIA, 5 U.S.C. § 552(b)(5) and (b)(7) and that the forecasts would not be released. The action was then ripe for review in the District Court. See 5 U.S.C. § 552(a)(4)(B) (1976). *fn1"

 The OFCCP is charged with the enforcement of E.O. 11246, amended by E.O. 11375, which prohibits discrimination in employment by federal contractors on the bases of race, color, national origin, religion, or sex. Initially issued by President Lyndon B. Johnson on September 24, 1965, it also requires entities that contract with the federal government to formulate affirmative action plans to insure that no applicant or employee is discriminated against in the context of employment. Sections 202(5) and 203 of E.O. 11246 require contractors to keep and to file records with the Department documenting their employment practices. Based on a review of these records and other factors, the OFCCP determines through its Area Directors and its ARAs whether a review of a contractor's compliance with E.O. 11246 is warranted. When OFCCP concludes that such a review is justified, the contractor is given thirty (30) days notice that a review will occur, after which the contractor must submit its affirmative action plan and other supporting evidence of compliance. OFCCP may decide after examining the material to conduct an onsite evaluation. See 41 C.F.R. § 60-60.2(a), 41 C.F.R. § 60-60.3 (1979). *fn2" If the OFCCP concludes that the contractor is not in compliance with E.O. 11246, then it may commence proceedings to suspend, terminate, or cancel contracts, or to bar future contract awards to the non-complying contractor. See 41 C.F.R. § 60-1.26 (1979), 41 C.F.R. § 60-30 (1979).

 Plaintiff seeks a document known as the Quarterly Compliance Review Forecast ("QCRF"). The QCRF is based on reports and recommendations of the respective ARAs to the National Office OFCCP policymakers that compliance reviews of certain contractors may be appropriate for the upcoming fiscal quarter in his or her region. In turn, the ARA has had input from the OFCCP Area Directors. Rougeau Aff. P 8. The QCRFs were first implemented in the fourth quarter of fiscal year 1979 so that the OFCCP could more efficiently and consistently develop a coordinated national, rather than regional, policy concerning contract reviews under E.O. 11246. Plaintiff asks this Court to mandate that the Chicago and the Kansas City Regional Offices disclose their QCRFs for the first quarter of fiscal 1980. *fn3"

 The defendant has moved for summary judgment arguing that disclosure is neither required under the Department of Labor's regulations nor lawful under exemptions 5 or 7 of the FOIA. Plaintiff resists summary judgment as premature, insisting that material factual issues must first be resolved, including determinations as to whether the release would be in the public interest, whether the QCRF actually sets a schedule of audits, whether disclosure of the QCRF would impede the functions of that Office, and whether past law enforcement efforts actually have been affected by disclosure of the QCRF. Each invocation for nondisclosure is separately examined below.

 The defendants claim that disclosure is not compelled by DOL regulations which provide for disclosure of certain documents of the Office relating to the enforcement of E.O. 11246. Those regulations, located at 41 C.F.R. § 60-40.2 (1979), as relevant, are as follows:

 
(b) Consistent with the above, all contract compliance documents within the custody of the OFCCP shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein. The types of documents which if in the custody of the OFCCP must be disclosed include, but are not limited to, the following:
 
(5) Dates and times of scheduled compliance reviews.

 Whether disclosure of the QCRF is mandated by departmental regulations is answered by Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979), where the very regulations at issue here were considered and held not binding on the OFCCP. Mr. Justice Rehnquist wrote,

 
"We need not decide whether these regulations are properly characterized "interpretative rules.' It is enough that such regulations are not properly promulgated as substantive rules, and therefore not the product of procedures which Congress prescribed as ...

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