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EVANS v. U.S. OFFICE OF PERSONNEL MANAGEMENT

July 30, 2003

LANE EVANS, PLAINTIFF,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, DEFENDANT



The opinion of the court was delivered by: Ellen S. Huvelle, District Judge

MEMORANDUM OPINION

This case arises from the United States Office of Personnel Management's ("OPM") refusal to disclose a two-page memorandum requested under the Freedom of Information Act ("FOIA"). Defendant argues that disclosure is not required because the document is protected by FOIA's Exemption 5. Plaintiff counters that the government has failed to sustain its burden under Exemption 5 because: 1) the memorandum is neither deliberative nor predecisional, and 2) the document lost any possible protection because it was adopted by OPM as a final agency opinion in two public documents. Having reviewed the document in camera, the Court agrees that the government has not shown that the document is deliberative and predecisional, and therefore, it need not reach plaintiff's remaining arguments. The Court will therefore deny defendant's motion for summary judgment and deny plaintiff's cross-motion for discovery as moot. [ Page 2]

BACKGROUND

Plaintiff is currently serving his eleventh term in the United States House of Representatives, representing the 17th Congressional District of Illinois. (Compl. ¶ 3.) He is the Ranking Democratic Member of the House Veterans' Affairs Committee. (Id.) Plaintiff's interest in the document stems from his personal experience as a veteran and member of the aforementioned committee, and more directly from his concern that veterans' congressionally-granted rights, privileges, and benefits are not being effectively administered. (Id. ¶ 5).

On September 5, 2002, plaintiff made a request pursuant to FOIA, 5 U.S.C § 552, to Kay Cole James, Director of the Office of Personnel Management. (Declaration of Mark Robbins ["Robbins Decl."] ¶ 4.) Specifically, plaintiff demanded a copy of the May 18, 1998 OPM Office of General Counsel ("OGC") memorandum relating to the use of multiple certificates to fill interdisciplinary positions.*fn1 (Id.) This request was referred to OGC for a response. (Id.) By letter dated September 20, 2002, Mark Robbins, General Counsel for the OPM, informed [ Page 3]

plaintiff that OPM was denying the FOIA request pursuant to Exemption 5, claiming the memo was prepared by an OGC staff member in response to an inquiry from an OPM program office regarding the permissibility of instructing examining offices not to issue multiple certificates of eligibles for vacant interdisciplinary positions.*fn2 (Id. ¶ 5, 10.) By letter dated October 4, 2002, plaintiff appealed the decision of OGC to Dan Blair, the Deputy Director of the OPM. (Id. ¶ 6.) Mr. Blair then notified plaintiff on December 13, 2002, that OPM would uphold the decision of the OGC to assert Exemption 5. (Id. ¶ 7.)

Plaintiff filed the instant action on January 14, 2003, challenging OPM's denial of his FOIA request for the OGC memorandum. He seeks to have this Court order disclosure of the requested document, as well as reasonable costs and attorney's fees. Invoking the deliberative process privilege of Exemption 5, defendant has moved for summary judgment. [ Page 4]

LEGAL ANALYSIS

I. Legal Standard

FOIA was enacted in 1966 to implement a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 89-813 (1965)). Thus, an agency must promptly make available any records requested by members of the public, unless the agency can establish that the information is properly withheld under any of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(b). These exemptions are exclusive and should be narrowly construed. Rose, 425 U.S. at 361. When a challenge is made to an agency's decision to withhold information, the burden of proof rests on the agency to sustain its decision, and the reviewing court is directed to "determine the matter de novo." 5 U.S.C. § 552(a)(4)(B).

Summary judgment is the preferred method of resolving cases brought under FOIA. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified."). In order to prevail on a motion for summary judgment, an agency must demonstrate that no material facts are in dispute and that each document that falls within the class requested either has been produced or is exempt from FOIA's inspection requirements. Students Against Genocide v.

Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir 1980). In a FOIA action, the Court may award summary judgment to the agency on the basis of affidavits when the affidavits describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, [ Page 5]

656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir 1973). In the present case, however, due to the conclusory nature of the statements made by Mark Robbins in his declaration, the Court has exercised its discretion and examined the disputed document in camera in order to make an independent assessment of defendant's claims that the memorandum is ...


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