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AFGE, LOCAL 2782 v. UNITED STATES DEPT. OF COMMER.

April 9, 1986

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, Plaintiff
v.
UNITED STATES DEPARTMENT OF COMMERCE, Defendant



The opinion of the court was delivered by: JACKSON

 JACKSON, Judge

 Plaintiff American Federation of Government Employees, Local 2782 ("AFGE" or "Union"), the collective bargaining representative of employees of defendant's Bureau of the Census ("Bureau"), brings this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to obtain the release of documents it believes will confirm its suspicions that the Bureau has engaged in the illegal practice of "preselecting" certain employees for promotion. *fn1" The Bureau contends that some materials it has withheld are exempt from disclosure under 5 U.S.C. § 552(b)(2), (b)(5), and (b)(6) (Exemptions 2, 5, and 6), and that others are not "agency records" subject to disclosure at all within the meaning of FOIA. The Bureau also justifies its refusal to carry out three searches it was asked to make for responsive materials - two on the ground that the requests were prohibitively broad and ambiguous, and, in the third case, because its search fee was not tendered. Upon consideration of the parties' cross-motions for summary judgment, the Court concludes that defendant properly withheld the disputed documents and justifiably declined to conduct the searches requested, and will, therefore, grant defendant's, and deny plaintiff's, motion for summary judgment.

 I.

 The material facts are not in dispute. In December, 1983, AFGE filed a number of FOIA requests with the Bureau (now grouped for purposes of this case as Appeals Nos. 1, 2, and 3) for documents which could substantiate its suspicions of pervasive "preselection" of individual employees for promotion in contravention of the Bureau's established Merit Assignment Program. *fn2"

 Appeal No. 1 involves a request of December 19, 1983, for the contents of seven notebooks, kept in the Administrative Office of the Population Division of the Bureau, containing papers bearing upon Division-initiated requests for personnel actions, including promotions, the most important of which appear to be duplicate copies of "Requests for Personnel Action," known as Standard Form 52's ("SF-52's") for the fiscal years 1981-84. *fn3" Plaintiff filed an administrative appeal of the Bureau's initial denial of the request in January, 1984, and a final decision was rendered the following May, by which the Bureau released some of the material, and claimed exemptions for the remainder under 5 U.S.C. § 552(b)(5) and (b)(6).

 Appeal No. 2 consolidated the Union's requests of December 2 and December 10, 1983, seeking records, notes, or memoranda requesting, recommending, or urging the promotion of employees in certain branches of the Bureau's Population Division. The Bureau initially denied those requests without a search on the ground that any such records, if found, would fall within FOIA Exemptions 5 and 6. During the processing of AFGE's administrative appeal, however, the General Counsel of the Department of Commerce did order that a search for responsive documents be made in nine branches of the Population Division, which turned up some 117 promotion recommendations and one SF-52 seeming to conform to the requests. All were, as anticipated, denied to plaintiff under Exemptions 5 and 6.

 Appeal No. 3 involves a request filed December 20, 1983, for the Union to be allowed to "inspect" the following materials:

 
B. Every division or staff administrative office file in the Bureau which records, catalogues, or stores SF-52's or stores promotion recommendation memos, or both; and
 
C. Every memo recommending promotion of any employee during FY 82 and FY 83 found or known to any branch chief or higher level supervisor employed at the Bureau.

 Defendant responded on January 20, 1984, that requests (A) and (B) were too encompassing, and that more particularity of identification, including a finite time period, should be provided. The documents sought by request (C) were denied on the basis of Exemptions 5 and 6, but on appeal, the General Counsel again directed that a search be made, conditioned, however, upon AFGE's advance payment of a search fee of $3,560. The Union declined to pay the fee and no search was ever conducted. The General Counsel affirmed the Bureau's original decision that requests (A) and (B) were so excessive as to obviate any duty to search, with or without a fee.

 II.

 Appeals Nos. 1 ...


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