Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


September 30, 1991



The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON


This is an action under the Freedom of Information Act ("FOIA" or "Act"), 5 U.S.C. § 552, in which plaintiff, the Times Journal Company ("Times Journal"), publisher of various newspapers and periodicals including Air Force Times, a weekly publication directed toward present and former members of the Air Force, seeks access to records related to defendant's Computer Assisted Telephone Interview ("CATI") surveys and related documents. Defendant, the Department of the Air Force ("Air Force" or "Department"), contends that the information requested by plaintiff falls under Exemption 5 of the Act, 5 U.S.C. § 552 (b)(5).

 Currently pending before the Court are cross-motions for summary judgment. For the reasons discussed herein, the Court concludes that the documents in question fall within Exemption 5 and, therefore, grants the motion of defendant for summary judgment.


 By letter dated November 15, 1989, plaintiff asked defendant to produce, pursuant to FOIA, all records pertaining to existing analyses, briefing papers and summaries of Air Force CATI surveys conducted since 1985 by Market Facts, Inc. ("MFI"). Since that year at least twelve CATI surveys of Air Force personnel have been conducted for the Department by MFI. The purpose of these surveys has been to gather data on the opinions and perceptions of Air Force personnel regarding pay, working conditions, and other topics.

 The Air Force FOIA Manager advised plaintiff by letter dated December 5, 1989, of the need for a more specific statement of the information and topics sought. The Times Journal advised the Department in a December 12, 1989, letter that it sought access to CATI survey results discussing pay, working conditions, training, commissaries, bonuses, the enlisted evaluation system, the officer evaluation system and pilot retention. By letter dated February 9, 1990, the Air Force released seven pages of information responsive to plaintiff's narrower FOIA request and withheld in full approximately six thousand pages pursuant to FOIA's Exemption 5.


 Exemption 5 excludes from FOIA's broad disclosure requirements "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The exemption incorporates the deliberative process privilege, whereby an agency may withhold documents "reflecting the advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1974) (citation omitted).

 In order to determine the propriety of defendant's Exemption 5 claim, the Court must determine whether the materials requested are inter- or intra-agency materials, whether they are pre-decisional, and whether they are deliberative. Sears, 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504 ; Quarles v. Dep't of Navy, 893 F.2d 390 (D.C. Cir. 1990); Wolfe v. Dep't of Health and Human Services, 839 F.2d 768 (D.C. Cir. 1988). In this action, the parties do not dispute that the results of the Air Force CATI surveys are for use within the Air Force and are pre-decisional. This case turns on whether or not the requested information is deliberative in nature.

 In Wolfe, the Court of Appeals for the District of Columbia Circuit stated that in order to determine whether requested information is deliberative in nature, the Court "must examine the information requested in light of the policies and goals that underlie the deliberative process privilege." 839 F.2d at 774. The deliberative process privilege is designed to facilitate and encourage the frank discussion of legal or policy matters in writing and to prevent injury to the quality of agency decisions. Sears, 421 U.S. at 150 - 51. A decision to withhold release of materials under Exemption 5 should "rest fundamentally on the conclusion that, unless protected from public disclosure, information of that type would not flow freely within the agency." Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977).

 Moreover, the deliberative process privilege is "dependent upon the individual document and the role it plays in the deliberative process," Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980). An understanding of the function of the documents at issue in the context of the administrative process generating them is a "crucial" aspect of the Exemption 5 analysis. Sears, 421 U.S. at 138. The burden is on the agency to show the character of the documents at issue and their role in the deliberative process. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). As with other FOIA exemptions, Exemption 5 "is to be construed 'as narrowly as consistent with efficient Government operation.'" Wolfe, 839 F.2d 768, 773 - 74 (citation omitted).

 Defendant argues that the survey results contain the opinions and recommendations of Air Force personnel and are used by behavioral analysts to make briefings and recommendations to the Director of Personnel on how to fashion Department policies. Defendant contends that if the information is released it will cause public confusion about the underpinnings of Air Force policy, lead to premature disclosure of future policy, and inhibit future survey participants from either candidly expressing themselves or participating at all in the surveys.

 In order to sustain its burden the Air Force must present affidavits showing, with reasonable specificity, that the withheld documents fall into the exemption claimed. Affidavits in support of exemptions will not suffice if they are conclusory, mere repetitions of the statutory language, or if they include sweeping, vague claims. Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (citations omitted) cert. denied 446 U.S. 937 (1980).

 The Department submits two affidavits from Major Judy K. Roomsburg, Air Staff Policy Analyst for the Air Force. The Court concludes that Roomsburg's affidavits effectively demonstrate that the information requested falls within Exemption 5. Roomsburg states that the CATI program is used by the Air Force to collect data on attitudes and opinions from department personnel. Those data are conveyed to the Director of Personnel who uses the information to assist in the formulation of Air Force personnel policy. Roomsburg's explanation ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.