National Treasury Employees Union, 602 F. Supp. at 474; Windels, Marx, Davies & Ives v. Dep't of Commerce, 576 F. Supp. 405 (D.D.C. 1983); Crooker, 670 F.2d at 1051.
For example, in Crooker, a plaintiff brought an action against the Bureau of Alcohol, Tobacco and Firearms to obtain release, under the FOIA, of portions of a training manual which concerned surveillance. The plaintiff argued that the manual was not "predominantly internal" because it directly affected the public at large: the citizenry "certainly has an interest in the manner in which they are spied on by agents of the federal government." 670 F.2d at 1054. The court rejected that argument and held that the manual was "predominantly internal" because it sought only to instruct agency personnel and did not attempt "to modify or regulate public behavior -- only to regulate it for illegal activity." Id. at 1075.
Similarly, in Windels, 576 F. Supp. at 405, a plaintiff commenced an action under the FOIA seeking disclosure of a computer program used by the United States Department of Commerce. The program could perform the necessary calculations to determine if a foreign company violated United States antidumping laws. The court held that the program was "predominantly internal" because the program "merely instructs a computer on how to detect possible violations of the law, and makes no attempt to modify or regulate public behavior." Id. at 412.
In the present case, plaintiff contends that the trigger figures, error rates, and potential fines withheld by defendants constitute "secret law" and thus are not "predominantly internal."
Plaintiff maintains that such information is "secret law" because it consists of interpretations used by the agency "in the discharge of its regulatory duties and in its dealings with the public." Mem. of P. & A. in Support of Pl.'s Mot. for Summ. J. at 8-9.
Contrary to plaintiff's assertion, however, trigger figures, error rates, and dollar amounts of potential fines, as established by the Department, are "predominantly internal." The Department uses all three categories of this information for enforcement purposes only, and does not attempt to use it to set out regulations for the public.
First, trigger figures are figures established by the Department to alert the Department that an educational institution may be seriously mismanaging its Title IV funds. Def.s' Mot. for Summ. J. Ex. A, Fenton Decl. at P 32. As such, the figures are used solely for enforcement purposes and not to attempt to regulate the public.
This is evident because the law that regulates educational institutions with regard to Title IV funds is clearly set out in the regulations published by the Department. See 34 C.F.R. pt. 668 (1995).
Second, error rates, as established by the Department, identify the Department's tolerances for mistakes. See Def.s' Mot. for Summ. J. Ex. A., Fenton Decl. at P 32. Although Title IV publicly sets a zero tolerance level for certain errors, the Department, as a practical matter, must allocate its limited resources in a way that enables it to most closely scrutinize the institutions exhibiting the most serious violations. These tolerances help the allocation process in that they provide internal guidance to staff about how, when, and where they should concentrate their regulatory oversight. Thus, this information is utilized solely for enforcement purposes. This does not constitute "secret law" because the law with which educational institutions must comply is clearly set forth in the regulations published by the Department in 34 C.F.R. pt. 668 (1995).
Finally, dollar amounts of potential fines, as established by the Department, do not constitute "secret law." This is because educational institutions are made fully aware, by the regulations published by the Department in 34 C.F.R. pt. 668 (1995), that any violation of Title IV may result in fines of up to $ 25,000. See 34 C.F.R. Part 668.84 (1995); 20 U.S.C. § 1094. Moreover, the discretion given to the Department to assess fines is, again, merely for enforcement and not regulatory purposes. See Def.s' Mot. for Summ. J. Ex. A, Fenton Decl. at P 34.
B. Significant risk of circumvention
To qualify under the second prong of Crooker, and thus fall under Exemption 2, disclosure of the contested information must also significantly risk providing the subjects of regulations with information that could enable them to circumvent such regulations. Crooker v. ATF, 670 F.2d at 1074; see also National Treasury Employees Union, 602 F. Supp. at 469.
Release of documents that reveal the nature and extent of specific agency investigations has consistently been held protected on this circumvention basis. See Albuquerque Publ'g Co. v. United States Dep't of Justice, 726 F. Supp. 851, 854 (D.D.C. 1989) ("the public has no legitimate interest in gaining information [pertaining to violator and informant codes] that could lead to the impairment of DEA investigations"); Windels, 576 F. Supp. at 408 (release of computer program used to detect violations of antidumping laws would enable foreign companies to adjust sales transactions to avoid detection of violation); PHE, 983 F.2d at 249-51 (redacted page of FBI investigative manual that "detailed specific . . . sources of information available to Agents investigating obscenity violations" was exempt from disclosure because the FBI logically demonstrated how the "release of this information would risk circumvention of the law because 'knowing what records or documents are likely to be scrutinized by the FBI . . . provides violators with an opportunity to impede lawful investigations'").
In the present case, disclosure of the trigger figures, error rates, and dollar amounts of potential fines would "significantly risk circumvention of agency regulations." Release of trigger figures would notify institutions of the amount of noncompliance that the Department may tolerate before imposing sanctions. Similarly, release of error rate tolerances would allow schools to maneuver around the regulatory requirements of the Title IV programs by keeping their deficiencies within the tolerance levels that are not considered significant. Finally, disclosing the dollar amounts of potential fines also would serve no purpose other than to encourage violations of Title IV regulations. As the Department explained:
If an institution knows in advance that certain conduct will result in only a nominal fine, then it might be willing to engage in that conduct and then just absorb the fine. Conversely, it might decide to focus its compliance efforts only on matters for which significant fines would be levied. Giving institutions the wherewithal to engage in a cost/benefit analysis in order to choose their level of compliance would substantially undermine the Department's regulatory efforts and thwart its program oversight.
Def.s' Mot. for Summ. J. at 13.
III. Defendants have described the documents withheld with the requisite specificity
Due to the fact that only the agency knows the substance of the information withheld, "agency affidavits have immense significance in a FOIA case." PHE, 983 F.2d at 250. Consequently, summary judgment may be granted to a government agency in a FOIA case only if the agency files an affidavit that describes "the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that the material withheld is logically within the domain of the exemption claimed." King v. United States Dep't of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir. 1987). The government agency withholding such information pursuant to the FOIA bears the burden of justifying its decision to withhold information. Id.
Plaintiff maintains that defendants did not provide the requisite detailed affidavits because defendants did not provide "corresponding information identifying which of the documents provided were intended to respond to which of Plaintiff's requests." Moreover, plaintiff states that defendants "failed to identify the relevance of the documents, state that all relevant documents were provided, or identify those documents which were withheld." Def.s' Mot. for Summ. J. at 14-15.
The Court finds that plaintiff's assertions are unsupported by both the facts and the law. The 19-page Fenton Declaration describes in detail exactly which documents are being withheld. The affidavit not only lists all documents that are responsive to plaintiff's request, but specifies the number of pages released and the number of pages redacted in each of the responsive documents. See Def.s' Mot. for Summ. J. Ex. A, Fenton Decl. at P 14. Furthermore, the affidavit describes in detail the information being withheld and specifies why this information is protected.
Moreover, to meet their burden for summary judgment, defendants are not required to identify the relevance of the documents released, state that all relevant documents have been provided or explain to plaintiff which response corresponds to which request. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Gabel v. Commissioner, 879 F. Supp. 1037, 1039 (N.D. Cal. 1994). Rather, under the FOIA, the government agency need only describe with reasonable specificity the information withheld. PHE, 983 F.2d at 250; National Treasury Employees Union, 602 F. Supp. at 472; King, 830 F.2d at 217.
It is also significant to note that a Vaughn index is not required in the instant case. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973). Such an index is required only where more than one FOIA exemption is being claimed.
National Treasury Employees Union, 602 F. Supp. at 473 (D.C. Cir. 1984).
In this case, defendants claim that the withheld information is exempted under only one FOIA exemption, namely Exemption 2; consequently, a Vaughn index is not required.
In view of the specificity of the Fenton Declaration and the limited amount of information withheld by the Department, the Court concludes that defendants have established the validity of their Exemption 2 claim. The substance of the withheld information is clear from the descriptions of the Declaration. Moreover, the Fenton Declaration logically demonstrates how the information withheld is predominantly internal and how its release would significantly risk circumvention of Department regulations.
For the reasons stated above, the Court finds that there is no genuine issue of material fact in dispute and that defendants are entitled to judgment as a matter of law. Accordingly, the Court grants defendants' motion for summary judgment and denies plaintiff's motion for summary judgment. An appropriate Judgment accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: FEB 13 1997
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendants' motion for summary judgment is granted. It hereby further is
ORDERED, that plaintiff's motion for summary judgment is denied. It hereby further is
ORDERED, that judgment be entered in favor of defendants.
Stanley S. Harris
United States District Judge
Date: FEB 13 1997