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ARMY TIMES PUBL. CO. v. DEPARTMENT OF THE ARMY

May 2, 1988

Army Times Publishing Company, Plaintiff,
v.
Department Of The Army, Defendant


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

Joyce Hens Green, United States District Judge.

 Plaintiff, publisher of the weekly Army Times, brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel production of computerized records held by defendant Department of the Army that contain the names, addresses, grade levels, and installation location of all active duty Army personnel in the United States. *fn1" The Army denied plaintiff's request on the basis that the records "relate[] solely to internal personnel rules and practices of an agency" and therefore can be withheld under exemption 2 of FOIA, 5 U.S.C. § 552(b)(2). The matter now comes before the Court on the parties' cross-motions for summary judgment. For the reasons set forth below, the motion of plaintiff is granted and the motion of defendant is denied.

 I. Factual Background

 The Army Times is a weekly newspaper published by plaintiff *fn2" with a worldwide circulation of approximately 130,000. Declaration of Henry Belber ("Belber Decl."), Plaintiff's Cross-Motion for Summary Judgment, para. 3. It carries news, features, and editorials of particular interest to active duty and retired Army personnel and their dependents. Id. Although privately owned and operated, the Army Times has been acknowledged as a leading source of career information by Army personnel and is used by government officials both as a source of authoritative information and to disseminate information. Id. P 5. *fn3" The Army Times also publishes news on Army personnel policy, legislation, proposed legislation, and judicial decisions affecting the Army. Belber Decl., paras. 5, 8; Declaration of Robert B. Sims ("Sims Decl.") paras. 6, 7. Several stories on the military first reported in the Army Times have been subsequently picked up by the wire services and general circulation newspapers. Belber Decl. para. 11. Indeed, defendant acknowledges that the Army Times is "not only available, but is prominently displayed, in the Post Exchange" on every Army base. Defendant's Reply, at 10 n.8.

 Plaintiff contends that new sales and circulation are essential to the continued publication of the Army Times because it continually loses subscribers as readers change interests, relocate, die, or for other reasons. Consequently, the Army Times "must pursue on-going efforts to find new subscribers to replace lost ones." Belber Decl. para. 12. Further, plaintiff claims that communicating with potential new subscribers is especially difficult for the Army Times because the military population is so widely dispersed and mobile; direct solicitation, therefore, is "a critically important means of maintaining viable circulation levels for the Times newspapers and making them available to interested readers." Id. at 13.

 According to plaintiff, accurate commercial lists of military personnel are not available. Thus, in both 1985 and 1986, the Army Times requested from the defendant, and received, under FOIA, magnetic tapes containing a roster that showed the name, pay grade, and installation of assignment for active duty military personnel stationed in the United States. Id. P 14. *fn4" In those two years, the Army provided the requested tapes at a charge of $ 1,489.00 for each tape. Id.5

 In May 1987, plaintiff once again requested similar information from the Army. Instead of releasing the information, the Army requested plaintiff to advise it whether any public interest would be served by disclosure of the requested records. Declaration of Jerry L. Brumbaugh ("Brumbaugh Decl.") para. 4. Plaintiff replied that its purpose for seeking the requested records was to update its subscription files when subscriber copies are returned as "unknown" or "undeliverable." Id. P 5. By letter dated June 19, 1987, the Army denied plaintiff's request on the ground that the list fell within FOIA exemption 2.

 The Army's about-face on the issue of release is attributable to a 1985 decision by Judge Flannery of this Court that the government cannot rely on exemption 6 of FOIA to withhold the names and duty addresses of service members. Hopkins v. Department of the Navy, No. 84-1868 (D.D.C. Feb. 5, 1985). Jerry L. Brumbaugh, the Freedom of Information/Privacy Act Officer, United States Total Army Personnel Agency, states in a declaration filed by the Army, that, after the Hopkins decision, which the government did not appeal, "the number of FOIA requests for personnel list information progressively grew, placing a similarly progressive drain on FOIA personnel resources." Brumbaugh Decl. para. 15. Accordingly, in the Spring of 1987, "faced with these increasing administrative burdens," the Army determined that FOIA exemption 2 was "under such circumstances, an appropriate legal basis to deny such requests." Id.6 After plaintiff's appeal of the denial was rejected by the Army's General Counsel, plaintiff filed this action requesting the defendant be ordered to provide plaintiff with the requested records. The essential facts are undisputed *fn7" and the case is appropriately postured for summary judgment. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 II. Analysis

 An agency may properly invoke exemption 2 of FOIA to withhold from public disclosure matters "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The analytical framework for determining whether this exemption applies was clearly set out by the Court of the Appeals for this Circuit in Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 232 U.S. App. D.C. 167, 721 F.2d 828, 830 n.4 (D.C. Cir. 1983):

 
First, the material withheld should fall within the terms of the statutory language as a personnel rule or internal practice of the agency. . . . Then, if the material relates to trivial administrative matters of no genuine public interest, exemption would be automatic under the statute. . . . If withholding frustrates legitimate public interest, however, the material should be released. . . . *fn8"

 The Scientology court further held commented that a "reasonably low threshold should be maintained for determining when withheld administrative material relates to significant public interests." Id.

 Plaintiff argues that the Army has failed to carry its burden of demonstrating that the requested information falls within exemption 2 and that, even assuming it did meet the statutory language, the list is not a trivial ...


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