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Kaganove v. Environmental Protection Agency


decided: September 1, 1988.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 5795--Marvin E. Aspen, Judge.

William J. Bauer, Chief Judge, Richard D. Cudahy, and Kenneth F. Ripple, Circuit Judges.

Author: Ripple

KENNETH F. RIPPLE, Circuit Judge.

The Environmental Protection Agency (EPA) appeals from a judgment of the district court that ordered the EPA, pursuant to the Freedom of Information Act (FOIA), to release a document entitled "Merit Promotion Rating Plan Specifications" (Rating Plan), 664 f. Supp. 352. Arlene Kaganove, the appellee, was an unsuccessful candidate for a promotion to a position as a "Supervisory Environmental Protection Specialist" with the EPA. The Rating Plan is a two-page document created by the EPA for its use when interviewing candidates for the position sought by Ms. Kaganove. After being denied the promotion, Ms. Kaganove sought disclosure of the Rating Plan. For the reasons that follow, we reverse the judgment of the district court.



A. Facts

The Rating Plan is a document used by EPA evaluators to rank job candidates according to their experience and skills. The first part of the Rating Plan consists of the rating factors. The rating factors are evaluation categories that identify the experience and skills necessary for job performance. Each rating factor is assigned a numerical weight that reflects the importance of that factor to satisfactory job performance. The second part of the Rating Plan is a measuring device to evaluate the applicant's skills within each rating factor. This measuring device consists of four descriptions of experience levels for each rating factor. These descriptions attempt to categorize and distinguish each candidate's skills. Under the Rating Plan, each level of experience is assigned a point value from one to four, which is then multiplied by the rating factor. Applicants with the highest scores then are afforded further consideration.

After being denied the promotion to a Supervisory Environmental Protection Specialist, a GS-13 position, Ms. Kaganove sought release of the Rating Plan. The EPA refused Ms. Kaganove's request. It relied on Exemption 2 of the FOIA. 5 U.S.C. § 552(b)(2). That exemption allows an agency to refuse disclosure of documents that "relate[] solely to the internal personnel rules and practices of an agency." Id. The EPA claims that disclosure would provide applicants with detailed knowledge of rating formulas and, consequently, they might exaggerate their credentials. Because much of the information provided by job candidates is unverifiable, or only verifiable at a great cost, the EPA submits that a device such as the Rating Plan is the only practicable means of ensuring the accuracy of the claims of employment applicants.

B. District Court Opinion

The EPA and Ms. Kaganove filed cross-motions for summary judgment. In ruling on those motions, the district court first concluded, relying on Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976), that the EPA did not have to disclose the Rating Plan if the Plan did not relate to a matter of "genuine and significant public interest." Id. at 369. Applying Rose to the facts of this case, the district court concluded that there was a genuine and significant public interest in disclosure of the Rating Plan. Kaganove v. United States Envtl. Protection Agency, 664 F. Supp. 352, 358 (N.D. Ill. 1987). The court noted that the EPA is a highly decentralized agency, and that a few years ago the EPA recognized the need to develop EPA personnel with agency-wide experience. The administrator of the EPA noted that the EPA needed to hire and promote qualified employees who had agency-wide experience. To achieve this goal, the administrator introduced a new EPA policy that emphasized a preference to promote people with diverse experiences who could bring an agency-wide perspective to EPA decisionmaking.

The court then examined a sample rating plan for a different EPA position that Ms. Kaganove had offered to the court. According to the court, this sample plan reflected a bias in favor of employees who had experience in a particular department area. This was in direct conflict with the EPA's objective of achieving agency-wide experience. Accordingly, the court concluded that "because of the complexity of the EPA's mission, the recognition by its own director of the need for EPA managers with agency-wide experience and the findings of the NAPA panel,*fn1 it is a matter of significant public interest whether the EPA is actively promoting those with agency-wide experience." Id. at 358 (footnote supplied). Thus, the court determined that there was a significant and genuine public interest in the document sought by Ms. Kaganove.

Having concluded that the Rating Plan did involve a matter of genuine public interest, the court proceeded to determine whether the document could nonetheless be protected under the approach announced in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051 (D.C. Cir. 1981) (en banc), and National Treasury Employees Union v. United States Customs Service, 255 U.S. App. D.C. 449, 802 F.2d 525 (D.C. Cir. 1986) (" NTEU "). In Crooker, the District of Columbia Circuit developed a two-pronged test to be applied in Exemption 2 cases. That test asks (1) whether the document meets a test of predominant internality, and (2) whether disclosure would significantly risk circumvention of agency regulations or statutes. 670 F.2d at 1074. The NTEU court, relying on Crooker, held that an agency is not required to disclose documents when "disclosure . . . would quickly render those documents obsolete for the purpose for which they were designed." 802 F.2d at 530. NTEU involved a document virtually identical to the one at issue here. An employee group sought, and was denied, disclosure of a rating system used by the Customs Service. The NTEU court said that disclosure of the rating system would allow potential job applicants to lie about their qualifications in order to obtain the position. Accordingly, the court held that the Customs Service did not need to disclose the rating system.

Here, the district court expressly declined to state whether it agreed with the NTEU decision. 664 F. Supp. at 361 n.6. Rather, it distinguished NTEU by noting that, in that case, the document at issue was "a road map that enables the interviewing officials to pose questions to an applicant, to explore his background and experience, and to evaluate his qualifications for the job sought." Id. at 361 (quoting NTEU, 802 F.2d at 526). Release "would be tantamount to giving each applicant a list of exam questions." Id. The Customs Service therefore would have to revise the questions for each interview. By contrast, opined the district court, the EPA here faced no such burden:

The EPA rating plan will not become obsolete. At most, the EPA will be forced to utilize a verification process to screen out fraudulent applications. This is because the EPA cannot change the required levels of experience needed for each job because the requirements, unlike questions about an applicant's experience, are not flexible.

Id. Thus, the court believed that NTEU was inapposite and that Exemption 2 of the FOIA did not provide the EPA with a basis for nondisclosure.



The opinion of the district court reflects a careful study of the relevant statutory provisions. However, while we owe its labors our respectful and careful attention, we are presented here with a question of law that we review de novo.

The FOIA establishes a general legislative policy in favor of the disclosure of public documents. The Act contains, however, nine express exemptions that allow nondisclosure. United States Dep't of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 1611, 100 L. Ed. 2d 1 (1988). "Congress created these exemptions because it 'realized that legitimate governmental and private interests could be harmed by release of certain types of information.'" Id. (quoting FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982)). Despite the exemptions, however, "disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Because of that objective, courts must construe the FOIA's nine exemptions "'as narrowly as consistent with efficient Government operation.'" Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256, 1257 (7th Cir. 1988) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)). In interpreting these exemptions, it is helpful to keep in mind that the legislative and litigation history of the FOIA reveals a deep-seated tension between federal agencies, instinctively protective of the information in their files, and the congressional judgment that access to information ought to be the norm. In this context, the judiciary's responsibility is clear: it must give effect to congressional will.

Exemption 2 of the FOIA permits nondisclosure for documents that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Under Exemption 2, both parties to this appeal agree that the EPA need not release the Rating Plan if the Plan does not relate to a matter of "genuine and significant public interest." Rose, 425 U.S. 352, 369, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976).*fn2 Whether the Rating Plan relates to such a matter is, in our view, a close question. Ms. Kaganove argues that the EPA has a particularly important role within the federal government and that the EPA's personnel decisions are critical to its success. The record contains evidence that the administrator of the EPA has publicly said that the EPA needs managers with agency-wide experience. The same concern was expressed in a report submitted to the EPA in 1984 by a panel of the National Academy of Public Administration. Thus, the Rating Plan arguably relates to a matter of significant public interest because the Plan might help reveal whether the EPA's specific employment criteria, at least for the position sought by Ms. Kaganove, unduly focus on job and educational experience within a narrow subspecialty. On the other hand, the problems of recruitment, retention, and advancement experienced by the EPA are no doubt shared by many other agencies of government who, like the EPA, should shoulder tremendous responsibility for the safety and welfare of the nation. Yet, it is not entirely free from doubt that all hiring devices for all agencies at all grades can be considered matters of "a genuine and significant public interest." Rose, 425 U.S. at 369.

We need not decide this close question. In Rose, the Supreme Court concluded that the primary purpose of Exemption 2 was to exempt from disclosure documents devoid of genuine and significant public interest. 425 U.S. at 364-69 (relying on S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965)). However, the Court did not foreclose the possibility that Exemption 2 might be applicable in other situations as well. Indeed, the Court specifically noted that it "need not consider in this case the applicability of Exemption 2 in such circumstances . . . 'where knowledge of administrative procedures might help outsiders to circumvent regulations or standards.'" Id. at 364 (emphasis supplied) (quoting Rose v. Department of the Air Force, 495 F.2d 261, 265 (2d Cir. 1974)). In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051 (D.C. Cir. 1981) (en banc), the District of Columbia Circuit addressed this issue left open in Rose. It concluded that Exemption 2 was applicable when a document "meets the test of 'predominant internality,' and if disclosure significantly risks circumvention of agency regulations or statutes . . . ." Id. at 1074.*fn3 In Crooker, the District of Columbia Circuit relied heavily on the concurring opinion of Judge Leventhal in Jordan v. United States Dep't of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753 (D.C. Cir. 1978) (en banc):

Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.

Jordan, 591 F.2d at 783 (Leventhal, J., concurring). Moreover, noted the court in Crooker, the legislative history of the FOIA, when evaluated in the "context of the whole Act," 670 F.2d at 1062 (quoting Richards v. United States, 369 U.S. 1, 11, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962)), also evidences Congress' concern "to permit the effective operation of the government." Id. at 1065. For instance, noted the court, while requiring that staff manuals be made available to the public for copying in section 552(a)(2)(C), Congress clearly evidenced a "deep concern that manuals setting forth guidelines for auditing and inspection procedures should not be released to the public." Id. at 1063. While acknowledging that Rose found the Senate rather than the House Report a more accurate reflection of the congressional intent on the scope of Exemption 2,*fn4 Rose, 425 U.S. at 363-64, the Crooker court also noted that there was no disagreement between the reports on the exemption of government investigatory or examination manuals. 670 F.2d at 1061.

The Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, subtit. N, 100 Stat. 3207, 3248 (1986), evidences that Crooker was correctly decided. The Reform Act codified Crooker, as it applies to law enforcement agencies, into Exemption 7 of the FOIA. Pursuant to section 1802 of the Reform Act, Exemption 7 now provides, in pertinent part, that "guidelines for law enforcement investigations or prosecutions [need not be disclosed] if such disclosure could reasonably be expected to risk circumvention of the law. . . ." 5 U.S.C. § 552(b)(7)(E) (emphasis supplied). The legislative history of the Reform Act expressly states that this amendment was modeled after "the 'circumvention of the law' standard that the D.C. Circuit established in its en banc decision in Crooker v. BATF, 216 U.S. App. D.C. 232, 670 F.2d 1051 (D.C. Cir. 1981) (en banc) (interpreting Exemption 2)." S. Rep. No. 221, 98th Cong., 1st Sess. 25 (1983), reprinted in relevant part in 132 Cong. Rec. H9466 (daily ed. Oct. 8, 1986). Because Congress saw fit to codify the very language of Crooker, and because nothing in the legislative history of the Reform Act suggests the slightest disagreement with that case's holding, we believe that Crooker accurately expresses congressional intentions.

As noted above, in NTEU, the District of Columbia Circuit applied Crooker to a case very much like ours. The NTEU court held that Exemption 2 was applicable even if the agency could not identify a particular statute or regulation threatened by disclosure. Rather, the court said that Crooker was apposite whenever a document related to predominantly internal personnel matters and if disclosure of the document would render it "obsolete for the purpose for which [it was] designed." 802 F.2d at 530. Of course, the purpose of the document must be legitimate and the document must not constitute "secret law." Id. at 531.

NTEU's construction of Exemption 2 is, in our view, consistent with the purposes of the FOIA. In Rose, the question left open by the Court was whether Exemption 2 applied when "regulations or standards " might be circumvented. 425 U.S. at 364 (emphasis supplied). The word "standards" suggests that the Court envisioned that internal personnel documents might be exempt under Exemption 2 even if disclosure would not necessarily risk circumvention of "law." The objective of the FOIA is to maximize dissemination of agency information without impeding "'efficient Government operation.'" Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256, 1257 (7th Cir. 1988) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)). The objectives of government agencies -- which are of course embodied in public law -- would be completely defeated by requiring disclosure of documents relating to the employment process that are effective only when kept confidential.

In our view, there is little doubt that the Rating Plan is a legitimate internal personnel document and that disclosure of the Rating Plan would frustrate the document's objective. The Rating Plan is the sort of document that the EPA, and any other employer, reasonably would expect to be internal. Release of the Rating Plan would render it ineffectual because some job candidates, once informed in detail of the experiences that the EPA considered most valuable for a particular job, might amend the description of their prior employment. As the NTEU court said, referring to documents highly similar to the EPA's Rating Plan:

The crediting plans are designed to measure actual experience and proven ability; it would seem to follow, in theory, that advance knowledge of their content should not affect the rating of the candidates. But the theoretical assumption is valid only if all applicants can be depended upon to be meticulously correct in describing their past experience and their qualified or quantifiable abilities. The uncontradicted affidavits of agency officials lead to the conclusion, however, that advance knowledge of the plans by applicants would allow and induce at least some of them to embellish -- or perhaps even fabricate -- their backgrounds to suit the appropriate crediting plan. Moreover, the indications are that the [United States Customs Service] does not possess the human and financial resources needed to identify fabrications, to verify their falsity, and to pursue the offending applicants with appropriate legal action. Indeed, it appears that a great many of the elements in a crediting plan are capable of embellishment by an applicant in a manner that is not strictly fraudulent, or that cannot be proven to be fraudulent.

NTEU, 802 F.2d at 529 (footnotes omitted).

We can see no significant difference between NTEU and our case. The EPA's Rating Plan is designed to measure an applicant's "actual experience and proven ability." Id. Uncontradicted affidavits offered by EPA officials suggest that advance knowledge of the Rating Plan would allow candidates to embellish their job and educational history in unverifiable ways so that they would receive a higher score on the Rating Plan's numerical system. The district court suggested that the EPA could verify the information provided by job candidates. This objection ignores the EPA's submission that the practicalities of government administration and finance make such verification extraordinarily difficult if not impossible.

Accordingly, the judgment of the district court is reversed.




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