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August 30, 1984


The opinion of the court was delivered by: JOHNSON



 Plaintiff National Treasury Employees Union (NTEU) brings this action under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552 et seq. (1982), to enjoin the United States Customs Service from withholding certain documents that defendants claim are exempt from disclosure under FOIA. The documents in question are known as "crediting plans" -- an internal evaluation procedure developed in each of the nine regional offices of the Customs Service pursuant to Article 17, Section 7, of the negotiated National Agreement between NTEU and Customs and "designed to insure a systematic means of selection for promotion according to merit." 5 C.F.R. § 335.102 (1982). Presently, the Court is considering the renewed motion of plaintiff to compel preparation of a Vaughn Index and the cross motions of the parties for summary judgment. For the reasons set forth below, the Court will deny the renewed Vaughn motion of plaintiff and grant the motion of defendant for summary judgment as there are no material issues of fact in dispute and defendants are entitled to judgment as a matter of law.


 Plaintiff filed its FOIA requests by letters dated April 20, 1982, with the Regional Commissioners of all nine regions of the Customs Service. In each request, plaintiff sought the crediting plans used by the regional office for the following seven positions: 1) Senior Inspector, GS-1899-11; 2) Import Specialist Team Leader, GS-1889-12; 3) Customs Patrol Officer, GS-1884-9; 4) Entry Level Customs Inspector, GS-1899-5; 5) Entry Level Import Specialist, GS-1889-5; 6) Entry Level Customs Patrol Officer, GS-1884-5; and 7) Customs Warehouse Officer, GS-1845-4/5/6. When plaintiff did not receive either a response or partial or complete denial of its FOIA requests from the regions, it timely filed an administrative appeal with the Office of Regulations and Rulings of the Customs Service by letter dated June 8, 1982. On November 10, 1982, Customs issued its final decision releasing in part the forty-four crediting plans responsive to plaintiff's FOIA requests. Customs determined that the information withheld or subject to excision was properly exempt from release under FOIA exemptions (b)(2) and (b)(5).

 Thereafter, plaintiff filed this suit contesting the agency's claimed exemptions and petitioning the Court for an order compelling defendants to prepare a Vaughn Index. On October 27, 1982, the Court denied plaintiff's Vaughn motion without prejudice. Plaintiff filed a second motion to compel the preparation of a Vaughn Index on December 3, 1982, after which the parties agreed that the crediting plans from Customs' Houston Region would be representative of all crediting plans in dispute for the limited purposes of resolving plaintiff's second Vaughn motion. Defendants submitted the affidavits of William R. Irvin, Assistant Director, Staffing, Office of Personnel Management (OPM) and B. James Fritz, Director, Disclosure Law Division, Office of Regulations and Rulings, United States Customs Service, in evidence in record nor by evidence of agency bad faith." Baez v. United States Department of Justice, 208 U.S. App. D.C. 199, 647 F.2d 1328, 1335 (D.C.Cir.1980). It is the finding of the Court that the affidavits of Irvin and Fritz adequately indicate a logical nexus between the withheld portions of the crediting plans and the agency's claimed exemption under section 552(b)(2) of FOIA.

 Plaintiff first contends that the withheld sections of the crediting plans are not predominantly internal documents by virtue of the public's interest in monitoring the Government's compliance with its own merit promotion process and enforcement of export-import laws. The affidavits of Fritz and Irvin substantiate the contrary, however. Fritz's affidavit is illustrative. He states that the withheld information is developed in each of the nine regional offices as an "internal evaluation procedure used by agency personnel in the agency's internal promotion and placement program." In addition, regulation subchapter S6-1 restricts the disclosure of such evaluating procedures to agency personnel responsible for internal promotion and placement. The Court is satisfied that the subject crediting plans are "not concerned with regulating the behavior of the public, but consist solely of instructions to agency personnel." Crooker, 670 F.2d at 1075. Thus, the Court finds that the excised portions of the crediting plans are predominantly internal to the agency's merit promotion process.

 The second part of the Crooker test requires that "disclosure significantly risks circumvention of agency regulations or statutes." Defendants maintain that release of the excised information in the crediting plans responsive to plaintiff's FOIA requests would circumvent subchapter S6-1 of the FPM as well as the mandate of 5 U.S.C. § 2302(c) to comply with and enforce applicable civil service laws, rules, and regulations. In fact, Irvin states in his affidavit that OPM advised the Customs Service that certain portions of its crediting plans should not be released because, in OPM's considered opinion, public disclosure of these portions would give an unfair advantage to certain candidates and compromise the utility of the plan. In contrast, NTEU asserts that unlike the present case, those cases holding Exemption (b)(2) applicable uniformly find that the release of the withheld documents would hinder law enforcement investigations, enable violators to evade the law, or possibly jeopardize the safety of agency personnel. While it is true that several courts have determined that law enforcement materials are exempt under § 552(b)(2), none of these courts held that the only circumvention contemplated by this exemption is the hindrance of a law enforcement agency's investigatory activities. See e.g., Lesar, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C.Cir.1980); Hardy v. Bureau of Alcohol, Tobacco and Firearms, 631 F.2d 653 (9th Cir.1980). Such a rule would effectively preclude the application of Exemption (b)(2) by non-law enforcement agencies; a result apparently not intended by Congress. See e.g., S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10, reprinted in, U.S.Code Cong. & Ad.News 2418, 2427 (1966).

 Plaintiff also argues that the Federal Labor Relations Authority (FLRA) recently determined in National Treasury Employees Union and NTEU Chapter 153,161, and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (February 3, 1983) and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52 (February 3, 1983), that the FPM does not preclude the disclosure of the crediting plans. *fn2" Thus, plaintiff maintains that disclosure of the plans in this case will not circumvent subchapter S6-1. Subchapter S6-1 requires Customs personnel responsible for the agency's personnel measurement program to identify, inter alia, crediting plans which require security and control since disclosure of this material to "unauthorized persons, might provide unfair advantage to some candidates or otherwise compromise the utility of the selection procedure." This regulation also explicitly states that such material "must not be exposed to any persons, including management officials, members of employee organizations or non-Federal personnel who do not have an official need to see the material." Examples of security and control materials include aspects of procedures for evaluating the past behavior of candidates; i.e., examples of behavior used as criteria for the rating of information about experience if a candidate's responses are not readily verifiable. It is important to note that FLRA, when determining whether to disclose the crediting plans in the cases cited by plaintiff, limited its holding to those plans involved in the specific case as opposed to all crediting plans of the Customs Service. FLRA's holding in these cases appears to be consistent with the objective of subchapter S6-1 to prohibit disclosure only of those crediting plans, or parts thereof, which "might provide unfair advantage to some candidates or otherwise compromise the utility of the section procedure." Nevertheless, contrary to plaintiff's assertion this Court is not obliged to give any special deference to FLRA's construction of the FPM since it is not the agency primarily responsible for administering and enforcing civil service rules and regulations. See e.g., California National Guard v. Federal Labor Relations Authority, 697 F.2d 874, 879 (9th Cir.1983). See also 5 U.S.C. § 7105(a)(1). Moreover, in National Treasury Employees Union v. Devine, Docket No. HQ120500006 (1981), NTEU attacked the validity of subchapter 6 and the implementation of Customs of this regulation under the crediting plans that are presently in dispute. The Merit Systems Protection Board found that the regulation "is rationally related to the purpose of preventing unfair advantage to any competing applicant or employee" and "is not being invalidly implemented by the Customs Service." Id. at 2, 7-8. Likewise, it is sufficiently clear to this Court that disclosure of this information will circumvent this regulation.

 The public interest in disclosure must also be weighed. Lesar, 636 F.2d at 485. The Court is of the view that public disclosure of the excised portions of Customs crediting plans would compromise the public's interest in merit-based promotions and in preventing unfair advantages to any one group. Plaintiff's contention that it needs the withheld information to process promotion grievances of its members and to fulfill its statutory duty of representation is not persuasive. It appears that the FLRA is the proper forum to determine this claim, which is essentially an allegation that Customs is engaging in an unfair labor practice by failing to provide NTEU with information necessary to perform its representational duties. See 5 U.S.C. § 7114(b)(4) and § 7118. Indeed, NTEU availed itself of this right in four unfair labor practice cases before FLRA challenging the non-release of the same information involved in this suit. See United States Customs Service and NTEU, Case Nos. 43-CA-698, 9-CA-993, 9-CA-842, 9-CA-20323. The Court is convinced that complete disclosure of documents containing controlled information under subchapter S6-1 is not in the public interest. Therefore, the Court finds that the subject crediting plans were properly withheld in full or in part under Exemption (b)(2) of FOIA.

 An Order consistent with this Opinion will be entered on this date.

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