# Petition — Prudential Insurance Co. of America v. National Organization for Women > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1297%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 924 ## Text Supreine Court of the United States OcToBER TERM, 1976 THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, METROPOLITAN Lire INSURANCE COMPANY AND JoHN Hancock MutruaL Lire INsurRANCE COMPANY, * Petitioners, NATIONAL ORGANIZATION FOR WOMEN Wasuinoton, D.C. CHAPTER, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT JEROME ACKERMAN MicHAkEL S. Horne Roperick A. DEARMENT 888 Sixteenth Street, N.W. Washington, D.C. 20006 Attorneys for Petitioner, The Prudential Insurance Company of America J. Austin Lyons Maraaret F, Keiiy One Madison Avenue New York, New York 10010 Attorneys for Petitioner, Metropolitan Life Insurance Company WruuM F. Joy Rosert P. Joy One Beston Place Boston, Massachusetts 02108 Attorneys for Petitioner, John Hancock Mutual Life Insurance Company January 31, 1977 TABLE OF CONTENTS Page NS Be 6 vi. tds den endsanenenbcnddsneeneae 2 oe Cee adads 6obebenenes Per ee 2 QuESTIONS PRESENTED ..........-. 5 a la tee dae Seal 3 Statutory Provisions INVOLVED ............e02ee00: 3 STATEMENT OF THE CASE ..... Peete ete e eee ee ee en eens 5 Reasons FOR GRANTING THE WRIT .............--005: 12 I. The Holding Below, as It Relates to the Incor- poration Within the (b)(3) Exemption of Sec- tion 709(e) of the Civil Rights Act of 1964, and 44 U.S.C. § 3508, Presents Important and Re- curring Questions of Statutory Construction and It Reaches a Result Expressly Questioned by a SURES CE THO COG ec ccc cccccccccsceccees 12 II. The Holding Below, as It Relates to the Incor- poration Within the (b)(3) Exemption of 18 U.S.C. § 1905 and Similar Rulings of the Court of Appeals for the District of Columbia Circuit Are in Direct Conflict with a Recent Decision of the Court of Appeals for the Fourth Cireuit .. 20 III. There Is a Compelling Need for Issuance of a Writ of Certiorari Before Judgment Since This Is the Only Way Petitioners May Obtain Mean- ingful Review by This Court Before Disclosure of the Specific Documents at Issue Occurs and Since This Court Will Then Have an Oppor- tunity To Review Simultaneously Conflicting Decisions from Different Circuit Courts ...... 27 I ne a eo ee 30 ii Table of Contents Continued Page Appenprx A—Memorandum Opinion of the United States District Court for the District of Columbia, Ne SG. TIGD co ncccccsccccsssvcccsvesvcses la Appenprx B—Order of United States District Court for the District of Columbia, which, inter alia, de- nied motions for preliminary injunction with re- spect to the documents at issue, December 6, 1976 43a Appenpix C—Order of United States District Court for the District of Columbia, which temporarily enjoined release of the documents to allow peti- tioners to seek a stay pending appeal from the Court of Appeals, December 16, 1976 ........... 44a Appenprx D—Order of the United States Court of Ap- peals for the District of Columbia Circuit denying motion for a stay pending appeals, January 19, | SPPPTETTETITPTETILITITT TCT T TL 47a AprEenpix E—Statutory Provisions Involved ........ 50a Apprenpix F—Sample Employer Information Report | PPPS TT Pr errr rr rrery rr ree ree 64a-65a TABLE OF AUTHORITIES CasEs: Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) ... 20 Bolling v. Sharpe, 344 U.S. 873 (1952) ..........-45. 29 Chamber of Commerce v. Legal Aid Society, 423 U.S. Be GUE oo dnbcnccnendsdavnceseseusénaes passim Charles River Park ‘‘ A’’, Inc. v. Department of H.U.D., 519 F.2d 935 (D.C. Cir. 1975) ..........608.. 8, 21, 27 Crown Central Petroleum Corp. v. Kleppe, 14 FEP Cases 40 (D. Mid. 1976) ..c.cccccsccccscccccse 18, 25 Chrysler Corp. v. Schlesinger, 412 F.Supp. 171 (D. Be, SPE Sh ckcdvecddereverindscresnessdedsccre 18 Ditlow v. Volpe, 362 F. Supp. 1321 (D.D.C. 1973), rev’d on other grounds, 494 F.2d 1073 (D.C. Cir.), eert. denied, 419 U.S. 974 (1974) ....... cece eee eevees 21 Table of Contents Continued iii Page FAA Administrator v. Robertson, 422 U.S. 255 (1975) 22, 25 Goodyear Tire € Rubber Co. v. Dunlop, 13 FEP on” Se EE tcvcodebadiudesenseecdoe ces 14, 18 Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 425 F.2d 578 (D.C. Cir. 1970), rev’d on other grounds, 421 U.S. 168 (1975) ................6. 13, 21 H. Kessler € Co. v. EEOC, 472 F.2d 1147 (5th Cir. MEE $4650-6650h0 464s s tbe hebesess eedede vedere 13 Holiday Inns, Inc. v. Kleppe, 13 FEP Cases 1337 (W.D. i ee ine ae and 18, 22, 26 Hughes Aircraft Co. v. Schlesinger, 384 F. Supp. 292 SEER an eas eben 18 Irons v. Gottschalk, No. 74-1365 (D.C. Cir., Oct. 21, gO RUE Ee ee ee 24 Lawyers Cooperative Publishing Co. v. Schlesinger, No. 1974-212 (W.D. N.Y., July 3, 1974) .......... 18 Legal Aid Society v. Brennan, 13 FEP Cases 860 (N.D. SE ME Chant band in dea Vdedddknstceenas 18 a avin iv eu A Gv dsb 40 s0sK0ce ens 18 21, 25 Schecter v. Weinberger, 506 F.2d 1275 (D.C. Cir. 1974) 25 Sears, Roebuck & Co. v. General Services Admin., 384 F. Supp. 996 (D.D.C. 1974) ...............056. 10, 18 Sears, Roebuck & Co. v. General Services Admin., 402 F.Supp. 376 (DDC. 1975) ..... 0. cc ccccccuec’ 14,18 Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527 (D.C. Cir. 1974) .........ccccececes passim United States v. Thomas, 361 U.S. 950 TED bdesses 28 - ee A _ ecb eahbch Gained d dokeeudcede passim estinghouse Elec. Corp. v. Schlesinger, 392 F. Supp. 1246 (E.D. Va. 1974) .......... 4 Leekeoneees _ 18 iv Table of Contents Continued Page STATUTES: Civil Rights Act of 1964: Section 709(c), 42 U.S.C. § 2000e-8(c) .......... 9,13 Section 709(d), 42 U.S.C. § 2000e-8(d) ......... 15, 16 Section 709(e), 42 U.S.C. § 2000e-8(e) ........ passim Federal Aviation Act of 1958, Section 1104, 49 U.S.C. B IGOE . . wcccccccccecessessbeueueee anne 23, 24, 25 Freedom of Information Act: 5 UBC. § GES... cccccvccsuscucesceueneneeee passim 5 U.BC. § GEBCR(S) ...ccccccccsesusecuauene passim 5 UBC. § GERID)IE) ..ccccccesseccccsnnauneee 26, 27 Government in the Sunshine Act, P.L. 94-409, Stat. 1241 (Sept. 18, 1976) .....cvccccsevesssescssceseeneen 22 Social Security Act, Section 1106, 42 U.S.C. 1306 .... 25 Trade Secrets Act, 18 U.S.C. § 1905 .............. passim 28 U.B.C. § 19B6(1) ... occcccccecccceunu ean 3 44 UB.C. 8 SBOB ...cccccccscsceessucnnn ene 44 UB.C. § BOBla) ..cccvccccccessseeeuenenee passim MISCELLANEOUS: Attorney General’s Memorandum on the Public Infor- mation Section of the Administrative Procedures Act, June 1087 ....cccccccccccccccsceseseeuns 13, 22 Executive Order 11246, 3 C.F.R. 169-177 (1974)... . passim General Accounting Office Report, ‘‘The Equal Em- ployment Opportunity Program for Federal Non- construction Contractors Can Be Improved,’’ GAO MWD-75-63 (April 29, 1975) ............. 19 Hearings on S. 921 Before the Subcomm. on Constitu- tional Rights of the Senate Comm. on the Judici- ary, 85th Cong., 2d Sess. (1958) .............4+- 22 Lardner, Use, Abuse of Freedom of Information Act, Washington Post, July 27, 1976, at A4......... 20 Note, Protection From Government Disclosure—The Reverse—FOIA Suit, 1976 Duke L.J. 330 ....... 8 Table of Contents Continued v Page Note, Reverse-Freedom of Information Act Suit: Con- fidential Information in Search of Protection, 70 N.W.U. L. Rev. 995 (1976) ............c cc cceee 8 OFCCP Compliance Manual, Section 2-202 .......... 19 Sen. Conf. Rep. No. 94-1178, 94th Cong., 2d Sess. LEE SEES 22, 25 Silfrin, Official Claims Lawyers Misuse Information Act, Washington Post, January 28, 1977 at D7 .. 20 Supreme Court Rules, 19(1)(6) .................... 20 RMU ET OUIUIDD occ ccc cccccccccccccccecs 9 CE EE 10 CG 15 H.R. Rep. Ne. 880, 94th Cong., 2d Sess., Part I (1976) 24 H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966) ...... 22 IN THE Supreme Court of the United States OcToBEeR TERM, 1976 No. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, MerTROPOLITAN Lire INSURANCE COMPANY AND JoHN Hancock Mutua Lire INsurANceE CoMPANy, Petitioners, Vv. NATIONAL ORGANIZATION FOR WOMEN WasuHinoton, D.C. CHAPTER, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Petitioners, The Prudential Insurance Company of America (‘‘Prudential’’), Metropolitan Life Insur- ance Company (‘‘Metropolitan’’) and John Hancock Mutual Life Insurance Company (‘‘John Hancock’’), respectfully petition this Court to issue a writ of cer- tiorari to the United States Court of Appeals for the District of Columbia Circuit to review before judg- ment petitioners’ appeals now pending in that Court of Appeals from an order and opinion of the United States District Court for the District of Columbia.’ 1In addition to the District of Columbia Chapter of the Na- tional Organization for Women, the other respondents, collectively 2 OPINIONS BELOW The memorandum opinion of the District Court, which has been reported at 14 FEP cases 83, appears at Appendix A to this petition. As a writ of certiorari before judgment is being sought, there is no full opin- ion below by the Court of Appeals. However, on Janu- ary 19, 1977 the Court of Appeals denied a stay in this case evidently on the authority of Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527 (D.C. Cir. 1974), which deals with the same issues.’ See Appendix D. JURISDICTION The order of the District Court permitting disclo- sure of the documents at issue, which appears at Ap- pendix B to this petition, was entered on December 6, 1976. On December 16, 1976, petitioners, Prudential, Metropolitan and John Hancock, each filed notices of appeal from the District Court’s order and those ap- peals have been docketed and consolidated by the referred to as the Federal respondents, are now: Secial Security Administration of the Department of Health, Education and Wel- fare; Joseph A. Califano, Jr., in his official capacity as Secretary, U.S. Department of Health, Education and Welfare; James B. Cardwell, in his official capacity as Commissioner of Social Se- curity; Everett M. Friedman, in his official capacity as Chief, Insurance Compliance Staff, Social Seeurity Administration of HEW;; F. Ray Marshall, in his official capacity as Secretary of Labor; A. Diane Graham, in her official capacity as Acting Diree- tor, Office of Federal Contract Compliance Programs, U.S. De- partment of Labor. 2 Earlier on December 16, 1976 the District Court issued an order temporarily enjoining release of the documents in question to permit the petitioners to seck a stay pending appeal from the Court of Appeals. This December 16, 1976 Order appears at Appendix C. 3 United States Court of Appeals for the District of Columbia Circuit. See Appendix D. The jurisdiction of this Court to issue a writ of certiorari before judgment is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED Whether a private employer’s EEO-1 reports in the possession of a Federal agency, other than the Equal Employment Opportunity Commission, are made ex- empt from disclosure by the (b)(3) exemption in the Freedom of Information Act and that exemption’s in- corporation of 42 U.S.C. § 2000e-8(e) and 44 U.S.C. § 3508 (a). Whether a private employers’ EEO-1 reports and related affirmative action plans (AAPS) in the posses- sion of a Federal agency are made exempt from dis- closure, insofar as they contain confidential statistical data, by the (b)(3) exemption’s incorporation of 18 U.S.C. § 1905. STATUTORY PROVISIONS INVOLVED . 5 U.S.C. § 552, known as the Freedom of Informa- tion Act, provides in part: ‘*§ 552 Public Information, agency rules, opinions, orders, records, and proceedings. (b) This section does not apply to matters that are— ; (3) specifically exempted from disclosure by statute ;”’ (The full text of 5 U.S.C. § 552 is set forth in Appendix E) 4 Section 709 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8 provides in part: ‘*§ 2000e-8 Investigations—Examination and copy- ing of evidence related to unlawful employ- ment practices. * * - (e) Prohibited dislosures; penalties It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Com- mission pursuant to its authority under this sec- tion prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or im- prisoned not more than one year.”’ (The full text of 42 U.S.C § 2000e-8 is set forth in Appendix E) 44 U.S.C. § 3508(a) provides: ‘*§ 3508. Unlawful disciosure of information; pen- alties ; release of information to other agencies (a) If information obtained in confidence by a Federal agency is released by that agency to an- other Federal agency, all the provisions of law including penalties which relate to the unlawful disclosure of information apply to the officers and employees of the agency to which information is released to the same extent and in the same man- ner as the provisions apply to the officers and em- ployees of the agency which originally obtained the information. The officers and employees of the agency to which the information is released, in - ° eS 5 addition, shall be subject to the same provisions of law, including penalties, relating to the unlawful disclosure of information as if the information had been collected directly by that agency.” (The full text of 44 U.S.C. § 3508 is set forth in Appendix E) 18 U.S.C. § 1905, sometimes referred to as the Trade Secrets Act, provides: **1905. Disclosure of confidential information generally Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses or makes known in any manner or to any extent not author- ized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or em- ployee thereof, which information concerns or re- lates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or associa- tion; or permits any income return or copy there- of or any book containing any abstract or particu- lars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or em- ployment.”’ STATEMENT OF THE CASE Under the Freedom of Information Act (‘‘FOIA’’), 5 U.S.C. § 552, the competing considerations favoring 6 aecess to Government records on the one hand and recognizing on the other the legitimate interest in con- fidentiality of those who supply information to the Government typically require a carefully reasoned balancing of the FOTA’s disclosure provisions with its exemptions, and with various other relevant statutes precluding or penalizing disclosure of records in the possession of the government. In dealing with the issue now before the Court, however, the lower courts have adopted a wholly mechanical test. Under it, the end re- sult depends entirely on whom a request for informa- tion is directed to rather than on what information is being requested. Thus, if a member of the public, pur- suant to the FOTA, requests the Employment Infor- mation Reports EEO-1 (‘‘EEO-1 reports’’) filed by the petitioners, or by any of the thousands of other employers who file such reports, and if the request is addressed to the Equal Employment Opportunity Commission (‘‘EEOC’’), it must be denied. Indeed, the responsible officials of the EEOC would be subject to criminal prosecution if they granted the request. But if the same member of the public, pursuant to the same Act, requests the same EEO-1 reports of the same employer from a sister agency of the same Fed- eral Government, such as the Office of Federal Con- tract Compliance Programs (‘“OFCCP”’), it is so clear as a matter of law (at least in the eyes of two members of the Court of Appeals below) that the doc- uments must be disclosed forthwith that parties seek- ing to prevent disclosure of their records are not even to be accorded the right to a full hearing on the merits before disclosure occurs. This is senseless. It does not serve the interests of the supplier of the information, it does not serve the 7 interests of private parties seeking the information, and it does not serve the interests of the Government. It is an approach which made no sense to Mr. Justice Douglas. Chamber of Commerce v. Legal Aid Society, 423 U.S. 1399, 1311-13 (1975). It is so capricious an approach that to urge it is to suggest or imply that the Congress acted either out of ignorance of its own statutes or with an utterly irrational legislative in- tent. But it is the approach which the courts below, putting form miles above substance, would make the law of the land. The instant case grows out of a request under the FOIA made by the respondent District of Columbia Chapter of the National Organization for Women (““NOW”’) for access to, among other things, the EEO-1 reports and certain affirmative action materials submitted by the insurance company petitioners to various Federal agencies. NOW’s request was ad- dressed to the Insurance Compliance Staff of the So- cial Security Administration, which has direct respon- sibility over the insurance industry in the enforcement of the equal employment opportunity obligations im- posed on Government contractors by Executive Order 11246, 3 C.F.R. 169-177 (1974).’ Before final administrative decisions were reached, NOW filed suit below under the FOTA against the Federal respondents, and against Prudential, Metro- politan, John Hancock and one other insurance com- pany to compel disclosure of the requested documents.‘ * Prudential, Metropolitan and John Hancock all hold Govern- ment contracts and are therefore subject to the requi Executive Order 11246. wsieeewaiti *The ICS informed Metropolitan that disclosure would take place without administrative review of Metropolitan’s request for 8 Prudential, Metropolitan and John Hancock each as- serted timely ‘‘reverse-FOIA’’ cross-claims against the Federal respondents seeking injunctive relief to prevent disclosure of their EEO-1 reports and other affirmative action materials either to NOW or to other members of the public.’ Following generally adverse administrative determinations, the petitioners moved for preliminary injunctions to restrain release of the documents pending a full trial on the merits. After a hearing on these motions, the District Court, on De- cember 6, 1976, issued a memorandum opinion and an order that permit, inter alia, the Federal respondents to release the insurance companies’ EEO-1 reports and some portions of their affirmative action plans, on the theory that there was little or no probability that the insurance companies would ultimately be successful on the merits in view of the prior decisions—which the District Court had to consider controlling—of the U.S. Court of Appeals of the District of Columbia Circuit. confidentiality, which the ICS had received prior to NOW’s re- quest for disclosure. Metropolitan then filed suit in the Southern District of New York requesting declaratory and injunctive relief. NOW did not intervene in the New York action, Metropolitan v. Usery, 75 Civ. 4182, but instead chose to pursue the matter solely in the District of Columbia. *The term ‘‘reverse FOIA’’ suits has been used in various lower court decisions and scholarly articles to describe actions in which a private party seeks judicial relief to prevent threatened disclosure under color of the FOTIA. See e.g., Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976) ; Charles River Park ‘‘A’’, Ine. v. Department of H.U.D., 519 F.2d 935 (D.C. Cir. 1975); Note, Protection From Government Disclosure—The Reverse—FOIA Suit, 1976 Duke L.J. 330 (1976); Note, Reverse- Freedom of Information Act Suit: Confidential Information in Search of Protection, 70 Nw. U.L. Rev. 995 (1976). a ee a 9 EEO-1 reports are two-page Government-printed forms (a blank sample appears at Appendix F'), which all large and moderate-sized employers are required to file for each of their facilities with 25 or more employ- ees. Completed reports show, among other things, the number of employees in each of the nine standard job classifications at an employer’s facility, broken down by sex and minority group classifications. For example, an employer’s EEO-1 report would indicate for each facility the total number of technicians (one of the nine job categories) employed at the facility, and total males and total females in that category, Negro males and females, Oriental males and females, American Indian males and females, and Spanish-surnamed American males and females. In addition to an EEO-1 report on each facility, an employer must also submit a consolidated report providing a similar breakdown of its total workforce. Because they maintain many separate large and small facilities throughout the United States, the insurance company petitioners an- nually file hundreds of EEO-1 reports. Prudential, for example, annually files over 600 separate EEO-1 forms, all of which (for 1975) are encompassed by the NOW FOfA request. Every EEO-1 report, including those in question here, contains a legend at the bottom which states, ‘‘All reports and information obtained from individual reports will be kept confidential as re- quired by Section 709(e) of Title VIT.’’ See Appendix F. The EEOC requires that EEO-1 forms be filed annu- ally by every employer with 100 or more employees, pursuant to its authority under Section 709(c) of the Civil Rights Act, 42 U.S.C. § 2000e-8(c). See 29 CFR § 1602.7 (1975). In addition, any employer with 50 or 10 more employees and a Government contract or sub- contract amounting to $50,000 or more is required to file an EEO-1 report annually for each facility with the Department of Labor’s OFCCP pursuant to its authority under Executive Order 11246. 41 CFR § 60- 1.7 (1976). The insurance company petitioners, both as Gov- ernment contractors and as employers of more than 109 persons, are required to file EEO-1 reports under Section 709 of the Civil Rights Act and Executive Or- der 11246. However, since the EEO-1 report has a standard format developed by the EEOC and the OFCCP, petitioners are required to file only one set of EEO-1 reports each year with a single data process- ing service (the so-called ‘Joint Reporting Commit- tee’’)® that in turn supplies copies of employers’ EEO-1 reports to the EEOC and the OFCCP upon agency request. The various Executive Order com- plianee agencies subordinate to the OFCCP, such as the Insurance Compliance Staff, either can obtain EEO-1 reports directly from this data processing serv- ice or indirectly through the OFCCP. In rejecting the insurance companies’ arguments that their EEO-1 reports are exempt from mandatory disclosure under the (b)(3) exemption, the District Court relied principally on the District of Columbia Cireuit’s decision in Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527 (D.C. Cir. 1974). The (b)(3) exemption provides that the FOIA does not apply to documents which are specifically exempted by * As was pointed out by the plaintiff in Sears, Roebuck & Co. v. General Services Admin., 384 F. Supp. 996, 1002 (D.D.C. 1974) the ‘‘Joint Reporting Committee’’ is funded and largely staffed by the EEOC and thus appears to be an alter ego of the EEOC. 11 another statute. In Sears, the District of Columbia Circuit held that the (b)(3) exemption was unavail- able in a situation almost identical to this case since the Court rejected the applicability of Section 709(e) of the Civil Rights Act and 44 U.S.C. § 3508 to the dis- closure of EEQO-1 reports by a compliance agency un- der Executive Order 11246. Although the District Court held that substantial portions of the petitioners’ affirmative action plans are exempt from disclosure under the (b)(4) exemption, which protects confiden- tial business information, it did not find sufficient evi- dence of competitive injury under the narrow reading by the Court of Appeals of the (b)(4) exemption to justify withholding the remainder of the affirmative ac- tion plans and the EEO-1 reports. The petitioners also argued below that their EEO-1 reports and their affirmative action plans were pro- tected from disclosure by the (b)(3) exemption’s in- corporation of 18 U.S.C. § 1905, which imposes crimi- nal sanctions for unauthorized disclosure of confiden- tial statistical data submitted to the Government.’ The District Court, following what for it was the ‘‘control- ling precedent”’ of the Court of Appeals decisions in the District of Columbia, rejected this argument on the theory that Section 1905 has no independent effect since it is no broader than the (b) (4) exemption. This result is directly contrary to the holding of the Fourth Circuit in Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976). * Metropolitan has raised in the Court of Appeals and raises here the applicability of 18 U.S.C. § 1905 to disclosure not only of its EEO-1 reports, but also of its affirmative action plans and portions of compliance review reports which are derived from Metropolitan’s affirmative action plans. 12 REASONS FOR GRANTING THE WRIT I. The Holding Below, as It Relates to the Incorporation Within the (b)(3) Exemption of Section 709(e) of the Civil Rights Act of 1964, and 44 U.S.C. § 3508, Presents Important and Recurring Questions of Statutory Construction and It Reaches a Result Expressly Questioned by a Justice of This Court. This case warrants plenary review by this Court be- cause it presents frequently recurring legal issues re- lating to the applicability under the FOTA’s (b)(3) exemption of Section 709(e) of the Civil Rights Act of 1964 and 44 U.S.C. § 3508 to the contemplated dis- closure of EEO-1 reports. This Court’s guidance on these FOIA questions, which have broad applicability and public importance,’ is sorely needed. That a serious question exists is demonstrated by the conflict between the result reached below and the views expressed by Mr. Justice Douglas on this question in Chamber of Commerce v. Legal Aid Society, 423 U.S. 1309 (1975). Section 709(e) of the Civil Rights Act unquestion- ably prohibits officers and employees of one Federal agency—the EEOC—from disclosing EEO-1 reports since Section 709(e) prohibits disclosure of any infor- mation obtained by the Commission under its Section 8 The number of FOIA eases, including FOIA eases involving affirmative action materials, is growing rapidly. While figures are not readily available on the total number of FOIA eases involving affirmative action materials, at least 15 of the cases cited herein involve FOIA-affirmative action decisions over the past two or three years. As for FOIA eases generally, 183 FOIA complaints were filed in the District of Columbia alone in 1976—a threefold inerease as compared with 1975. See Weissman v: CIA, No. 76- 1566, slip op. p. 11, fn. 11, (D.C. Cir., January 6, 1977). More- over, while the national average rate of appeals is 9% for all eases, in the District of Columbia 30% of all closed FOIA cases result in appeals. bid. 13 709(¢) power to compel recordkeeping and reporting by employers. 42 U.S.C. § 2000e-8(¢) and 8 (e). Thus, it has been undisputed that the EEOC may not disclose EEO-1 reports, outside the use of the reports in EEO litigation. See generally H. Kessler & Co. v. EEOC, 472 F.2d 1147, 1148-9 (5th Cir. 1973). It has also never been disputed that Section 709(e) was incorporated by the (b) (3) exemption to the FOIA, making EEO-1 re- ports exempt from mandatory disclosure by the EEOC.’ Pursuant to 44 U.S.C. § 3508, the Section 709(e) restrictions on disclosure should remain appli- cable even though disclosure by another federal agency is proposed. See Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 425 F.2d 578, 582 (D.C. Cir. 1970) rev’d on other grounds, 421 U.S. 168 (1975). Therefore, in light of Section 709(e), 44 U.S.C. § 3508, and the (b)(3) exemption to the FOIA, the latter statute should not be interpreted as requiring disclosure of EEO-1 reports merely on the theory that some Government agency other than EEOC, such as the Insurance Compliance Staff or the Department of Labor, has been requested to make the disclosure. Al- though EEO-1 reports are not generally filed directly with the EEOC but with its data processing agent, the essential prerequisites of Section 709(e) and 44 U.S. § 3508 are satisfied. The EEO-1 reports were obtained pursuant to the EEOC’s authority under See- tion 709 and they were obtained ‘‘in confidence.’’ Con- ° Seetion 709(e) was among the statutes specifically identified as coming within the scope of the (b)(3) exemption by the U.S. Attorney General's authoritative and often cited memorandum on the FOIA. Attorney General’s Memorandum on Publie Informa- — of the Administrative Procedure Act, June 1967, at p. 32. bbws 14 sequently, even if Section 709(e) and 44 U.S.C. § 3508 do not require criminal prosecution for release of EEO-1 reports by non-EEOC employees, these statu- tory provisions nevertheless indicate an unmistakable congressional intent to protect EEO-1 reports from public dissemination—an intent which is frustrated by the unduly narrow interpretation of the Section 709 (e) and 44 U.S.C. § 3508 by the courts below. In rejecting the applicability of Section 709(e) and 44 U.S.C. § 3508, the Federal courts in the District of Columbia in Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527 (D.C. Cir. 1974) and similar eases,”’ have relied on the fact that the EEO-1 reports were not collected or released directly by the EEOC, but rather by the “Joint Reporting Committee,’’—the EEOC-funded data processing service that physically handles the processing of the reports. Since 709(e) is a criminal statute, the Cireuit Court in Sears felt com- pelled to so narrowly construe its meaning as to ob- secure totally the legislative intent behind the provision. This formalistic approach, based on blind reliance on a canon of construction, leads to the anomaly of one agency of the Government being compelled to release a standard form document while officials of a sister agency are subject to criminal penalties if they release the very same document. The dual reporting requirements of the EEOC and OFCCP should not obscure the fact that the insurance company petitioners and other large employers must 1° E.g., Goodyear Tire & Rubber Co. v. Dunlop, 13 FEP Cases 1734 (D.D.C. 1975) ; Robertson v. Department of Defense, 402 F. Supp. 1342 (D.D.C. 1975) ; Sears, Roebuck & Co. v. General Serv- iees Admin., 402 F. Supp. 378 (D.D.C. 1975). 15 file EEO-1 reports even if they hold no Government contracts; thus, Section 709(e) by its express terms is applicable to the EEO-1 reports that these employers (who happen also to be contractors) file annually. When it originally enacted and later amended Section 709, giving the EEOC information-gathering author- ity, Congress clearly intended that the EEOC should coordinate its information gathering with other agencies such as the OFCCP." However, in encourag- ing coordinated reporting functions to avoid duplica-- tion, certainly Congress did not intend for such coordi- nation to become a means of circumventing the dis- closure prohibitions of Section 709(e) and 44 U.S.C. § 3508." Indeed, a desire to encourage coordination, “In an interpretative memorandum on Title VII that Senators Clark and Case, the Senate floor managers, introduced into the record as part of the Senate debates on the 1964 Civil Rights Act the possibility of coordinating federal reporting requirements was offered to assuage fears that EEOC reporting might prove onerous: **Any recordkeeping requirements imposed by the Commission could be worked into existing requirements and practices so as to result in a minimum additional burden. Furthermore, the Federal Reports Act of 1942, 5 United States Code 139- 139f, gives the Director of the Bureau of the Budget authority to coordinate the information-gathering activities of Federal agencies, and he ean refuse to approve a general recordkeeping or reporting requirement which is too onerous or poorly co- “se with other requirements.’’ 110 Cong. Ree. 7214 Coordination of recording requirement was made mandatory by the 1972 Amendment to the Civil Rights Act when the following sen- tence was inserted as part of Section 709(d) : “Tn prescribing requirements pursuant to subsection (ec) of this section, the Commission shall consult with other interested — and a ng -—_ = shali —— to coordinate requirements with those adopted such agencies.’’ 42 U.S.C. § 2000e-8(d) (1974). ‘ a Indeed, in 1972 when Congress provided the EEOC with the authority to furnish information to State and local equa] employ- 16 especially coordination that leads to the use of common reporting forms, is utterly inconsistent with the notion of permitting the right hand of government to do that which the left hand is expressly forbidden from doing. Whether Section 709(e) is viewed as a means of serv- ing the government’s interest in encouraging the free flow of information to the government or protecting the interests of private parties in the confidentiality of their affairs, it is clear that the purpose of Section 709(e) is thwarted when disclosure is allowed, and in- deed compelled, depending on the fortuitous cireum- stance of which agency of government is asked to yield the documents. Subsequent to Sears, acting on a stay request in Chamber of Commerce v. Legal Aid Society, 423 U.S. 1309 (1975), Mr. Justice Douglas considered this very question and expressed grave doubts as to the narrow construction of Section 709(e) adopted in Sears and followed in the instant case: ‘« information contained in the EEO-1’s, the AAP’s and the CRR’s which are prepared from the EEO-1's, is arguably protected from disclosure by § 709(e). See H. Kessler d&: Co. v. EEOC, 472 F. 2d 1147, 1152, 1153 (CA 5 1973) (en bane) (major- ity and dissenting opinions. To be sure, the information in the AAP’s and the EEO-1’s in this case was not obtained directly by the EEOC. Rather, the information was appar- ently collected by a Joint Reporting Committee of ment opportunity agencies it was made clear this information was not to be disseminated by such recipients: ‘‘Such information shall be furnished on the condition that it not be made publie by the recipient agency prior to the in- stitution of a proceeding under State or local law involving such information.’’ 42 U.S.C. § 2000e-8(d) (1974). In the ease of information shared with other Federal agencies, 44 U.S.C. § 3508 made this kind of explicit condition unnecessary. 17 both the EEOC and the federal compliance agency (in this case, GSA) under Executive Order No. 11246. But the information in the EEO-1’s was obtained, in part, on behalf of the EEOC, see 41 CFR $ 60-1.7(a) (1), and much of the information contained in the AAP’s is essentially in the nature of that protected by § 709. Compare 41 CFR pt. 60-2 with 42 U.S.C. § 2000(e)-8(c) (1970 ed., Supp. IIT). Indeed, certain policy considerations underlying the regulations precluding release by the GSA of information contained in the AAP’s are akin to those motivating the confidentiality implemented by § 709. Compare 41 CFR § 60-40.3 (a)(5) with H. Kessler & Co., supra, at 1150, In view of the foregoing, though some of the informa- tion involved here neither was obtained, nor is to be disclosed, by the EEOC, the congressional pur- pose of confidentiality, protected by criminal sanc- tions, is not to be lightly circumvented.’’ 423 U.S. at 1311-13“ (emphasis added). Contrary to this cogent reasoning, the Court of Ap- peals below will not even stay disclosure pending a full hearing on the merits of the Section 709(e) issue. The precise FOIA disclosure issues posed by this ease have in recent years produced countless adminis- trative determinations by agencies to which FOIA requests have been addressed and also a large number ** Mr. Justice Douglas went on to deny the stay because the dis- closure about to occur was in a pretrial discovery context and was subject to protective orders which mitigated, if they did not com- pletely preclude, any irreparable injury to the party resisting dis- closure. In the instant case, there is no comparable qualification or limitation on the disclosure which the Federal respondents propose to make and upon which NOW insists. 18 of sometimes conflicting court decisions.“ Indeed, a substantial share of lower court FOIA jurisprudence has emerged from cases involving threatened disclo- sure of EEO-1 reports. The frequency with which the issues presented here have been litigated in the lower court underscores their broad public importance not only to the multitude of companies which must submit EEO-1 reports to a myriad of Federal agencies but also the Governmental custodians of such documents and to private parties who wish to have access to such documents. Even though this case arises in the context of a FOTIA request made to the Insurance Compliance Staff of the Social Security Administration of HEW, the decision will have equal applicability to disclosure of EEO-1 reports by any of the other Executive Order 11246 compliance agencies that collectively control the 1 See e.g., Legal Aid Society v. Chamber of Commerce, 423 U.S. 1309 (1975) ; Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976); Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527 (D.C. Cir. 1974) ; Crown Central Petroleum Corp. v. Kleppe, 14 FEP Cases 49 (D.Md. 1976) ; Holiday Inns, Ine. v. Kleppe, 13 FEP Cases 1337 (W.D. Tenn. 1976) ; Chrysler Corp. v. Schlesinger, 412 F. Supp. 171 (D. Del. 1976) ; Goodyear Tire & Rubber Co. v. Dunlop, 13 FEP Cases 1734 (D.D.C, 1975) ; Sears, Roebuck & Co. v. General Services Admin., 402 F. Supp. 378 (D.D.C. 1975) ; Robertson v. Department of Defense, 402 F. Supp. 1342 (D.D.C. 1975) ; Legal Aid Society v. Brennan, 13 FEP Cases 860 (N.D. Cal. 1975); Sears, Roebuck & Co. v. General Services Admin., 384 F. Supp. 996 (D.D.C. 1974) ; Hughes Aircraft Co. v. Schlesinger, 804 F. Supp. 292 (C.D. Cal. 1974); The Lawyers Cooperative Publishing Co. v. Schlesinger, No, 1974-212 (W.D.N.Y. July 3, 1974); Westinghouse Elec. Corp. v. Schlesinger, 392 F. Supp. 1246 (E.D. Va. 1974) ; Legal Aid Society v. Shultz, 349 F. Supp. 771 (N.D. Cal. 1972). 7 : 4 19 reports of government contractors in all segments of American industry.” It has been estimated that there are over 275,000 employers subject to Executive Order 11246 jurisdiction, and a very substantial portion of those employers are required to file EEO-1 reports annnally."* The decisions below and others like it di- rectly affect each of these reporting contractors since by holding that EEO-1 reports are subject to manda- tory disclosure under the FOLA, these decisions allow ** The 17 Federal departments, agencies or authorities which have been designated by the Director of the OFCCP to perform certain compliance functions under Executive Order 11246 are: 1. Department of Agriculture (USDA) 2. Energy Research Development Administration (ERDA) 3. Department of Commerce 4. Department of Defense (DOD) 5. Environmental Protection Agency (EPA) 6. General Services Administration (GSA) 7. Department of Health, Education and Welfare (HEW) 8. Department of Interior 9. Department of Housing and Urban Development (HUD) 10. Department of Justice 11. United States Postal Service (USPS) 12. Small Business Administration (SBA) 13. Tennessee Valley Authority (TVA) 14. Department of Transportation (DOT) 15. Department of Treasury 16. Veterans Administration (VA) 17. National Aeronautics and Space Administration (NASA) OFCCP Compliance Manual, Section 2-202. Any of these entities may receive FOIA requests for EEO-1 reports. *®The Department of Labor has estimated that there are more than 275,000 Federal noneconstruction contractors subject to its Executive Order 11246 and that number would be even higher if Federal construction contractors were included. Approximately 92,000 of the nonconstruction Contractors file EEO-1 reports. See General Accounting Office Report, ‘‘The Equal Employment Op- portunity Program For Federal Noneconstruction Contractors Can Be Improved,’’? GAO MWD-75-63, at 31-32 (April 29, 1975). 20 anyone from the well-intentioned public citizen to the unscrupulous competitor to have ready access to the detailed information on an employer’s staffing at each of its facilities." Clearly the Section 709(e) issue has sufficiently broad applicability and importance to merit resolution by this Court. II. The Holding Below, as It Relates to the Incorporation Within the (b)(3) Exemption of 18 U.S.C. § 1905, and Simi- lar Rulings of the Court of Appeals for the District of Co- lumbia Circuit Are in Direct Conflict with a Recent De- cision of the Court of Appeals for the Fourth Circuit. There is a clear conflict between the Courts of Ap- peals for the District of Columbia and the Fourth Cir- cuits on whether the (b)(3) exemption in the FOIA incorporates 18 U.S.C. § 1905, and this conflict pre- sents a compelling reason for review by this Court. E.g., Rule 19(1) (b) of the Supreme Court Rules; Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 559 (1968). In several decisions that have considered the rela- tionship of 18 U.S.C. § 1905 to the FOTA, the Court of Appeals for the District of Columbia Circuit has held 17 Several agencies that have made studies of the FOIA requests they receive indicate that the majority of such requests are initiated by corporations or law firms on behalf of corporate clients. FDA Commissioner Alexander Schmidt has charged that such FOIA requests support ‘‘industrial espionage—companies seeking infor- mation about competitors—and not the publie’s right to know.’’ Lardner, Use, Abuse of Freedom of Information Act, Washington Post, July 27, 1976, at A4; See also Silfrin, Official Claims Lawyers Misuse Information Act, Washington Post, January 28, 1977 at D7. KOO eee oe 21 that 18 U.S.C. § 1905 is not a statute incorporated by the (b) (3) exemption to the FOIA." In the instant ease, the District Court felt obliged to follow that line of cases and the Court of Appeals, in denying petition- ers’ motions for stay, evidenced a complete unwilling- ness to reexamine the issue. Appendix A at 8a-9a, Ap- pendix C at 45a and Appendix D at 49a. But just four months ago, the Court of Appeals for the Fourth Circuit, in Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1199-1203 (4th Cir. 1976), took what the trial court euphemisticaily described be- low as ‘ta somewhat different approach to the applica- bility of § 1905."’ Appendix A at 10a. In fact, after a eareful review of the District of Columbia Cireuit de- cisions dealing with interrelationship of 18 U.S.C. § 1905 and the (b) (3) exemption, the Court of Appeals for the Fourth Cireuit expressly rejected the approach followed in the District of Columbia Cireuit. The Fourth Cireuit held that Section 1905 had not been modified by enactment of the FOTA, and it had been intended by Congress to be among the statutes incor- porated by FOIA’s (b)(3) exemption. 542 F.2d at 1202-1203. In reaching this conclusion, the Fourth Cir- cuit was persuaded in part by the legislative history of ** National Parks & Conservation Ass’n. v. Kleppe, No. 76-1044 (D.C, Cir. November 15, 1976); Charles River Park ‘‘A’’, Ine. v. Department of H.U.D., 519 F.2d 935, 941, n.7 (D.C. Cir. 1975) ; Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir. 1974); Robertson v. Butterfield, 498 F.2d 1031, 1033, n.6 (D.C. Cir. 1974) rev’d on other grounds, 422 U.S, 255 (1975); Grumman Aireraft Engineering Corp. v. Renegotiation Bd., 425 F.2d 578, 589, n.5 (D.C. Cir. 1970) rev’d on other grounds, 421 U.S. 168 (1975) ; see also Robertson v. Department of Defense, 402 F. Supp. 1342, 1347-8 (D.D.C. 1975) ; Ditlow v. Volpe, 362 F. Supp. 1321, 1323-4 (D.D.C. 1973), rev’d on other grounds, 494 F.2d 1073 (D.C. Cir.), cert. denied, 419 U.S, 974 (1974). 22 the FOIA indicating an intent to preserve independent statutory protections from disclosure, such as 18 U.S.C. § 1905, which were already part of federal law: ‘‘There are nearly 100 statutes or parts of statutes which restrict public access to specific government records. These would not be modified by the public provisions of S. 1160.’’ (emphasis added H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966). The Fourth Cireuit Court of Appeals also noted that Section 1905 had previously been identified in a Congressional hearing as a statute which prohibited disclosure and that it was among the statutes listed by the Attorney General in his memorandum opinion on the scope and application of the FOIA as one of the statutes incorporated by the (b)(3) exemption.” The Fourth Cireuit’s decision in Westinghouse has been followed in a recent District Court decision in the Sixth Cireuit. Holiday Inns, Inc. v. Kleppe, 13 FEP Cases 1337 (W.D. Tenn. 1976). Following the decision of this Court in FAA Ad- ministrator v. Robertson, 422 U.S. 255 (1975), the (b) (3) exemption was amended, effective March 13, 1977, by the ‘‘Government in the Sunshine Act,”’ P.L. 94- 409, 90 Stat. 1241 (September 13, 1976). As amended, the (b)(3) exemption reads as follows: ‘*(3) specifically exempted from disclosure by statute (other than section 552b of this title), pro- vided that such statute (A) requires that the mat- ters be withheld from the public in such a manner 1” See Hearings on S. 921 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 85th Cong., 2d Sess. 935-987 (1958); Attorney General’s Memorandum on the Public Information Section of the Administrative Procedures Act, June 1967, at pp. 31-32. 23 as to leave no discretion on the issue, or (B) es- tablishes particular criteria for withholding or refers to particular types of matters to be with- held ;”’ This amendment, although designed to overrule the precise result reached in Robertson, does not resolve or render moot the conflict among the Circuits over the question whether 18 U.S.C. § 1905 is incorporated in the (b) (3) exemption. In Robertson this Court did not address the 18 U.S.C. § 1905 question but rather con- sidered whether a quite different statute, Section 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504, was incorporated in the (b)(3) exemption. Section 1104 gives the FAA administrator discretionary au- thority to withhold ‘‘information contained in any ap- plication, report, or document filed pursuant to the provisions of this chapter or of information obtained by the Board or Administrator pursuant to the pro- visions of this chapter.’’ By contrast, 18 U.S.C. § 1905 is a criminal statute and obviously has no discretionary element. Moreover it refers to particular types of mat- ters to be withheld, specifically : ‘information [which] concerns or relates to the trade secrets, processes, operations, style or work, or apparatus, or to the identity, confidential sta- tistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association. ...”’ Since Section 1905 plainly does not provide any dis- cretion to disclose documents which fall within its: scope, it satisfies proviso (A) of the amended (b)(3) ; exemption.” Accordingly, although Section 1104 of the 2° A recent lower court decision considering the new version of the (b)(3) exemption found its two provisos clearly disjunctive. 24 Federal Aviation Act of 1958 will no longer be incor- porated within the (b) (3) exemption, the same cannot be said of 18 U.S.C. § 1905.** Thus, the revision of the Irons v. Gottschalk, No. 74-1365, slip. op. at 5, n. 3. (D.C. Cir. October 21, 1976). Thus any statute, such as § 1905, falling with- in the proviso (A) because of the absence of a discretionary ele- ment would still remain within the (b)(3) exemption. In deter- mining whether 18 U.S.C. § 1905 is incorporated in the new version of the (b)(3) exemption, it therefore is unnecessary to consider whether § 1905 also satisfies proviso (B), although petitioners be- lieve that it clearly satisfies that test also. 21 To be sure the House Report on the Sunshine Act suggests that 18 U.S.C. § 1905 would fall outside the House version of the re- vised (b)(3) exemption, apparently concurring with the District of Columbia Cireuit’s views on the applicability of Section 1905 under the old (b)(3) exemption. H.R. Rep. No. 880, 94th Cong., 2d Sess., Part I, 10 (1976). Nevertheless, this Report does not clearly indicate that the House was attempting to codify the Dis- trict of Columbia Circuit’s view into an amended (b) (3) exemption. More importantly, the House amendment to the (b)(3) exemption was not adopted. The H.R. 11656 version of the (b) (3) amendment before the Committee when the House Report was prepared would have revised the (b)(3) exemption to read as follows: (b) Section 552(b)(3) of Title 5, United States Code, is amended to read as follows: **(3) required to be withheld from the publie by any statute establishing particular criteria or referring to par- ticular types of information ;’’. There is little point in speculating whether this language, if it had become law, would have removed 18 U.S.C. § 1905 from the scope of the (b)(3) exemption. The House amendment was re- jected in conference in favor of the conference substitute that was thereafter enacted into law in P.L. 94-409. Thus, the statements in the House Report are thoroughly unreliable indicia of the Con- gressional intent behind the quite different amendment to (b) (3) that was actually adopted. The Conference Report on the Sunshine Act, which is the only authoritative statement of the intent of the revision of the (b) (3) exemption that the Congress adopted, states: ‘*Section 5(b) of the conference substitute amends the third exemption in 5 U.S.C, 552(b) to inelude information spe- cifically exempted from disclosure by statute (other than new 25 (b)(3) exemption does not moot the sharp conflict be- tween circuits over the applicability of Section 1905 and there remains a pressing need for review by this Court. The question whether 18 U.S.C. § 1905 is ineorpo- rated in the FOIA’s (b) (3) exemption in fact has the broad public significance which calls for the authorita- tive resolution that only this Court can provide. It isa question which affects not only the disclosability of equal employment data provided to the Government (both EEO-1 reports and related materials such as affirmative action plans) but also a host of other ma- terials including commercial and proprietary data in section 552b), if the statute either (a) requires that the in- formation be withheld from the public in such a mavner as to leave no discretion on the issue, or (b) establishes por- ticular criteria for withholding or refers to particular types of information to be withheld. The conferees intend this lan- guage to overrule the decision of the Supreme Court in Admin- istrator, FAA v. Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of the Federal Aviation Act of 1958 (59 U.S.C. 1504). Another example of a statute whose terms do not bring it within this exemption is section 1106 of the Sovial Security Act (42 U.S.C. 1306).’’ Sen. Conf. R. No. 94-1178, 94th Cong., 2d Sess. 24-25 (1976). Both Section 1104 of the Aviation Act and Section 1106 of the Social Security Act, which the conference report cites as illustra- tions of the type of provision which will be excluded by the amended (b) (3) exemption, are statutes that provide the agency concerned with broad discretion in making disclosure decisions, but at the same time do not identify particular types of documents to be withheld or standards for withhholding. See Robertson v. Butter- field, 498 F.2d 1031 (D.C. Cir. 1974) (construing Section 1104 of the Aviation Act); Schecter v. Weinberger, 506 F.2d 1275 (D.C. Cir. 1974) (construing section 1106 of the Social Security Act). Thus, there is nothing in the Conference Report which in any way suggests an intent to affect a statute, such as 18 U.S.C. § 1905, which clearly meets one and probably both of the provisos of the amended (b) (3) exemption. 26 Government contract bids, general information of the type that might be provided in response to Labor De- partment or Commerce Department surveys, and gen- erally the wide spectrum of information found in the multitude of documents which private parties are asked or compelled under one statute or another to supply to the Federal Government. And it is not sur- prising that conflict exists not merely between the de- cisions of the Court of Appeals of the District of Co- lumbia and the Fourth Circuits but also between several decisions in each cireuit and is spreading to other cir- cuits as the issue arises repeatedly. See e.g., Holiday Inns, Inc. v. Kleppe, supra, n.14; Crown Central Pe- troleum Corp. Vv. Kleppe, supra, n.14. Some commentators have suggested that perhaps the issue is of little practical significance because the (b) (4) exemption contains language comparable to 18 18 U.S.C. § 1905 so that any protection for confiden- tiality which the (b)(3) exemption provides by reason of incorporation of § 1905 is redundant.” But this is not the case, as the decision below amply illustrates. At least in the District of Columbia, the lower courts have erected a significant barrier to successful invoca- tion of the (b) (4) exemption. Thus, although in theory it should protect all confidential and privileged com- mercial and financial information, in the District of Columbia the (b)(4) exemption is not available in the absence of evidentiary proof that the party resisting disclosure would suffer substantial harm to its compe- 22 The (b)(4) exemption provides: ‘*(b) This section does not apply to matters that are—— a e e (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential ;”’ 27 litive position. See e.g., Charles River Park, supra.™ The mere existence of the (b)(4) exemption, there- fore, does not in any way lessen the critical need for an authoritative resolution of the (b)(3) question. II]. There is a Compelling Need for Issuance of a Writ of Certi- orari Before Judgment Since this is the Only Way Petitioners May Obtain Meaningful Review by This Court Before Dis- closure of the Specific Documents at Issue Occurs and Since This Court will then have an Opportunity To Review Simul- taneously Conflicting Decisions from Different Circuit Courts. Under Rule 20 a writ of certiorari before judgment is plainly an extraordinary procedure. But this case raises what we believe to be an extraordinary situation that fully justifies invoking that procedure. The adamant insistence of the Court of Appeals for the District of Columbia Circuit on its highly meechani- cal approach to the (b) (3) exemption has created a sit- uation which cannot help but be destructive of the pos- sibility of meaningful judicial review of issues such as those presented by this case. Repeated refusals by the Court of Appeals, as have occurred, even to enter a stay order to preserve the status quo pending a preliminary determination by this Court will inevitably encourage unseemly forum shopping and courthouse races in *8 Extending this bar »r to invocation of the (b)(4) exemption to its logical absurdity, the Court of Appeals for the District of Columbia Cireuit seems to take the position that one who has a monopoly is by definition not ‘‘in competition’’ and therefore has no right under the (b) (4) exemption to confidentiality for anything, even highly personal financial data. See National Parks & Conver- vation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); National Parks & Conservation. Ass’n v. Kleppe, No. 76-1044 (D.C. Cir. November 15, 1976) (suggesting that the rights to confidential treatment of financial data of U.S. Park concessionaires will de- pend on whether the concessionaires are located near competing outlets). 28 FOIA eases. Theze seeking to compel disclosure will rush to the District of Columbia secure in the know]- edge that, absent a stay order by this Court, an irre- vocable disclosure of their documents can be expected before briefing or argument on the merits in the Court of Appeals, and before this Court could have an oppor- tunity to review the merits in the normal fashion. Con- versely, those seeking to avail themselves of FOLA ex- emptions will be forced to race to federal courts out- side the District of Columbia in order to be accorded an opportunity for the judicial review to which they are entitled before the confidentiality of their docu- ments is irretrievably lost. While courthouse races are unfortunate and, stand- ing alone, constitute one of the underlying reasons for resolving conflicts among Courts of Appeals, here the problem is compounded because in the District of Co- lumbia one of two conflicting views becomes, as a prac- tical matter, an ultimate rule of law. In ach ease the issue is irreversably resolved, at least asgthe specific documents in question, by a denial of a stay pending appeal. Accordingly, petitioners urge that this case in- volves sufficient public importance to warrant granting of a writ of certiorari before judgment. This Court frequently grants certiorari before judg- ment in situations where similar or identical issues were already before the Court in another case, E.g., United States v. Thomas, 361 U.S. 950 (1960) ; Bolling v. Sharpe, 344 U.S. 873 (1952). It is quite likely that Westinghouse, supra, which obviously involves several issues identical to the issues the petitioners seek to raise in the instant case, will be before the Court on petition for certiorari shortly. The Govern- ment, which has expressed concern about the Fourth Cireuit holding relating to 18 U.S.C. § 1905, has re- 29 quested in Westinghouse an extension of time until February 2], 1977, within which to file a petition for writ of certiorari. While the petitioners cannot be cer- tain at this time that a petition will be filed in Westing- house, it seems likely that this will occur. Since there is a clear conflict between Courts of Appeals, there would be little reason for granting certiorari in one case and not the other. Here, both cases can be considered simul- taneously only by taking up the instant case offcertio- rari before judgment. Finally, one of the primary reasons (if not the prim- ary reason) for the quite sparing use of certiorari be- fore judgment is that this Court wishes to have the benefit of the views of the lower court before consider- ing the issues. Ilere, however, the Court of Appeals for the District of Columbia Circuit has already addressed the legal issues raised by this petition, in Sears and other cases cited above, the Court of Appeals for the Fourth Circuit has issued an extensive opinion in West- inghouse addressing the same legal issues, and the lower Court’s denial of any stay herein suggests that at least two members of the lower court see no need, despite Westinghouse, to reexamine the resolution of the legal issues reached in Sears. In view of these facts the absence of a full opinion by the Court of Appeals below in this particular case does not weigh heavily against granting the petition. 30 CONCLUSION For these reasons, the petition for writ of certiorari should be granted. Respectfully submitted, JEROME ACKERMAN MicHAeEL S. Horne Roperick A. DEARMENT 888 Sixteenth Street, N.W. Washington, D.C. 20006 Attorneys for Petitioner, The Prudential Insurance Company of America J. Austin LYONS Maraaret F. Keiiy One Madison Avenue New York, New York 10010 A p PENDIX Attorneys for Petitioner, Metropolitan Life Insurance Company Wurm F. Joy Rosert P. Joy One Boston Place Boston, Massachusetts 02108 Attorneys for Petitioner, John Hancock Mutual Life Insurance Company January 31, 1977 la APPENDIX A As Amended by the District Court’s Order of December 14, 1976, Which Is Appended Hereto UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 76-0914 Merropouitan Lire Insurance Company, Plaintiff, Vv. W. J. Usery, er au., Defendants. Civil Action No. 76-0087 NATIONAL ORGANIZATION FOR Women, Plaintiff, v. SoctaL Security ADMINISTRATION, ET AL., Defendants. Memorandum In this action three insurance companies, the John Han- cock Mutual Life Insurance Company (‘‘ John Hancock’’), the Metropolitan Life Insurance Company (‘‘ Metropoli- tan’’), and the Prudential Life Insurance Company of America (‘‘Prudential’’), seek to prevent the disclosure to the District of Columbia Chapter of the National Orga- nization for Women (‘‘D.C. NOW’’) of certain EEO-1 forms and affirmative action plans (‘‘AAPs’’) submitted by the companies to the Insurance Compliance Staff of the Social Security Administration (‘‘I1CS’’) and the Office of Federal Contract Compliance (‘‘OFCC’’) pursuant to Ex- ecutive Order 11246, as amended by Executive Order 11375, and 41 C.F.R. § 60-2.1 et seq. and 41 C.F.R. 60-60.1 2a et seq.' The companies also seek to prevent the disclosure of certain Compliance Review Reports (‘*CRR’’) compiled by the ICS. This Freedom of Information Act (‘‘FOIA’’) ease is before this Court in a reverse posture. Unlike the typical FOIA action in which a party seeks to force the government to disclose information, in a reverse FOIA action, a party who has submitted information to a govern- ment agency seeks to prevent the agency from disclosing information to a third party pursuant to a FOIA, 5 U.S.C. § 552(a), request. As government contractors, each of these insurance companies are required, pursuant to the above Executive Orders and regulations, to file annually an EEO-1 for its entire domestic operation and a separate EEO-1 for each individual domestic facility and office. These reports contain summary data on the number of women and mi- nority group members employed by the company. The AAPs which the companies are also required to prepare provide much more extensive and detailed information on the past and projected employment of women and minority group members by the company. The AAPs are made available to the ICS only when the ICS conducts a com- pliance review of a particular facility.” The ICS period- ically conducts such reviews of the companies subject to its jurisdiction and thereafter compiles a CRR which may incorporate portions of the AAPs. ‘The Secretary of Labor, who has the overall responsibility for enforeing the affirmative action requirements to which federal con- tractors are subjected, has delegated this authority to the Depart- ment of Labor’s Director of the OFCC. The OFCC has in turn designated various federal agencies as ‘‘compliance agencies’’ which review and rule in the first instance on the adequacy of a con- tractor’s affirmative action program and efforts. The ICS, a division of the Social Security Administration, is the compliance agency for the insurance industry. 2 The scheduling of compliance reviews is governed by 41 C.F.R. § 60-60.3. Le ett ttt teal itt, 3a On August 9, 1975, D.C. NOW made a FOIA request to the ICS for all current EEO-1s, AAPs, and CRRs* filed by or relating to the three insurance companies parties to this action and the Equitable Life Assurance Society of the United States.* Upon being informed by the ICS of D.C. NOW’s request, the insurance companies objected to its disclosure, arguing that the documents were exempted under sections (b)(3), (4), (6), and (7) of the Act’s ex- emptions. The ICS rejected most of the companies’ con- tentions.° The companies then appealed to the OFCC pur- suant to the provisions of 41 C.F.R. § 60-60.4(d). On July 19, 1976, the OFCC substantially affirmed the ICS’s de- cision. It determined to disclose the EEO-1s and substan- tial portions of the AAPs and CRRs. Wage and salary in- formation, the names, social security numbers, employee identification numbers, and ‘‘other identifying informa- tion,’’ comments revealing the closing or reorganization * Specifically, D.C. NOW requested only the EEO-1s, AAPs, and CRRs for 1975 on file with the ICS. Sinee AAPs are submitted to the ICS only when a compliance review of a particular facility is undertaken, substantially less than all of the companies’ AAPs were on file at the time of the request. * The equitable Life Assurance Society of the United States with- drew its objections to disclosure of its EEO-1s, AAPs, and CRRs after the ICS issued its decision. See letter from Werner Weinstock to ICS, dated February 11, 1976, Attachment 1 to D.C. NOW’s Memorandum in Opposition to Application by Insurance Company Defendants for Temporary Restraining Order. ° The ICS determined that most of the information contained in the documents was subject to mandatory disclosure under the FOIA. See letter from Everett Friedman, Chief of the ICS, to Herbert Watchell, dated February 4, 1976, Exhibit F attached to Metropolitan’s Application for a Temporary Restraining Order, filed July 19, 1976; letter from Everett Friedman to Robert Loeffler, dated February 4, 1976, Exhibit I attached to Prudential’s Applica- tion for a Temporary Restraining Order, filed July 19, 1976; and letter of Everett Friedman to Milton Corey, dated February 4, 1976, Exhibit 2 attached to D.C. NOW’s Motion For a Preliminary Injunction, filed February, 1976. 4a of a unit or units not already publicly disclosed, and train- ing data revealing entry into a new market were deleted.’ While the administrative appeal was pending, the two suits which have been consolidated in this action’ were brought. On August 22, 1975, Metropolitan initiated liti- gation in the Southern District of New York to enjoin re- lease to D.C. NOW of its EEO-1s, AAPs, and CRRs. This action was subsequently transferred to this Court. On January 16, 1976, D.C. NOW filed an action pursuant to the FOIA, 5 U.S.C. § 552, to compel disclosure of the docu- ments which were the subject of its August 9, 1975 request to the ICS. This Court stayed judicial proceedings in this suit pending the final agency decision. On July 19, 1976, the insurance companies applied for a temporary restraining order to enjoin the release of the documents subject to D.C. NOW’s August 9, 1975 request pending a hearing on a motion for preliminary injunction. After a hearing, this Court granted the companies’ motion for a temporary restraining order. ® See letter from Lawrence Z. Lorber, Deputy Assistant Secretary and Director, OFCC, to Robert Loeffler, dated July 13, 1976, E~- hibit Q attached to Prudential’s Application for a Temporary Restraining Order, filed July 19, 1976; letter from Lawrence Z. Lorber to William F. Joy, dated July 13, 1976; and letter from Lawrence Z. Lorber to John Creedon, dated July 13, 1976, Exhibit I attached to Metropolitan’s Application for a Temporary Re- straining Order, filed July 19, 1976. These letters reveal that the OFCC based its decision to disclose the documents on a determina- tion that none of the exemptions to the FOIA relied upon by the companies were applicable. ? National Organization for Women, Washington, D. C. Chapter v. Social Security Administration of the Department of Health, Education and Welfare, et al., Civil Action No. 76-0087 (D.D.C. 1976), and Metropolitan Life Insurance Company v. Usery, et al., Civil Action No. 76-914 (D.D.C. 1976). The federal agencies and officials who are the defendants in these actions are frequently referred to hereinafter as the ‘‘federal defendants.’’ da This action is now before this Court on the insurance companies’ motion for a preliminary injunction.’ The com- panies seek to enjoin the release by the agency of any of the EEQ-1s, AAPs, and CRRs which are the subject of D.C. NOW’s August 9, 1975 request to the ICS. Alterna- tively, if this Court is unwilling to enjoin the release of all of the foregoing material, Prudential seeks a prelimi- nary injunction protecting certain portions of the docu- ments. The companies take the position that the docu- ments are exempt from mandatory disclosure under the Act by virtue of exemptions (b)(3), (4), (6), and (7) of the Act, 5 U.S.C. §§ 552(b)(3), (4), (6) and (7), and that the agency abused its discretion in deciding to disclose the documents." The companies have met the well-recognized *The Court held evidentiary hearings on this matter on Sep- tember 8, 10, 13 and 14, and the parties have submitted numerous memoranda, affidavits, exhibits, and proposed findings of fact and conclusions of law. * Specifically, Prudential seeks, in the alternative, a preliminary injunction protecting: 1) its DAPs; 2) the work force analyses, job group analyses and personnel practices analyses contained in its utilization analysis in its AAPs; 3) the Identification of Problem Areas in its AAPs; 4) the Statement of Goals and Timetables con- tained in its AAPs; and 5) any portions of its CRRs which consist of attachments of Prudential documents containing the above information. Although only Prudential has specifically made such an alterna- tive motion, this Court is obligated under the Act to consider on a page-by-page basis what, if any, of the information contained in the documents is subject to mandatory disclosure and what, if any, of the information comes within an exemption. Therefore, the Court has not limited its consideration to whether an injunction protect- ing all of the information in the documents submitted by the com- panies is warranted or not for any of the companies. Instead, the Court has examined each of the companies’ documents on a page- by-page basis to make the required determinations. *°Only Prudential, of the three insurance companies, has ad- dressed the question of whether the determination to disclose the exempt information constituted an abuse of the agency’s discretion 6a standards for preliminary injunctive relief outlined by this Circuit in Virginia Petroleum Jobbers Association v, F.P.C., 259 F.2d 921 (D.C. Cir. 1958), with respect to certain data contained in the AAPs and those portions of the CRRs which incorporate this data. Specifically, this Court has determined that the insurance companies are entitled to preliminary injunctive relief as to the disclosure of the work force analyses, the department lists, the statistical and narrative data on projected promotions, the reasons for termination contained in certain termination tables, and certain narrative comments concerning performance evaluations or preferences or comments of employees con- tained in the AAPs and any portions of the CRRs which incorporate this data. The companies have not met the standards for preliminary injunctive relief with respect to the disclosure of the EEO-1s or any of the other data con- tained in the AAPs and CRRs.” Jurisdiction and Standard of Review The parties do not dispute this Court’s jurisdiction over the matter. This Court has jurisdiction to review the agency’s decision under the administrative Procedure Act, 5 U.S.C. § 701 et seq.; Pickus v. United States Board of Parole, 507 F.2d 1107, 1110 (D.C. Cir. 1974) ; Charles River Park ‘‘A’’, Inc. v. H.U.D., 519 F.2d 935, 939 (D.C. Cir. 1975). in any depth. The Court has, however, considered this question with respect to the documents of all three of the insurance com- panies. 1 2).C. NOW urges that Metropolitan and Prudential have waived certain objections because of the position they took at the admin- istrative level and, with respect to Prudential, because of the position it took in the temporary restraining order proceeding. The Court is unpersuaded by these claims. Even assuming such a waiver did occur, it is not relevant in light of the Court’s view of the merits. 7a The parties are in dispute as to the appropriate stand- ard of review in a reverse-FOIA case. The federal gov- ernment and D.C. NOW argue that the Court is limited to reviewing the agency’s decision, on the basis of the agency record, for an abuse of diseretion."? The insurance com- panies contend that they are entitled to de novo review in this Court. To some extent, both positions have merit. In a reverse-FOTA case the threshold question is whether the documents sought are subject to mandatory disclosure or fall within an exemption to the Act. If the documents sought are subject to mandatory disclosure, the lawsuit is at an end. If the documents, or portions thereof, fall within an exemption to mandatory disclosure, the Act does not apply and the agency’s decision to disclose the documents is subject to reversal only for an abuse of dis- eretion. Charles River Park ‘‘A’’, Inc. v. H.U.D., supra, at 941-42. In determining whether any exemptions apply to the information which the agency intends to disclose, the Court is not confined to reviewing the agency record. Even under APA review, the Court must hold a hearing and determine de novo whether an exemption applies just as if the suit were one brought to compel disclosure. Id. at 940 n. 4. However, in determining whether the agency abused its discretion in deciding to disclose the informa- tion, the Court must only review the administrative record. Td. at 943. Merits The parties have submitted numerous EEO-1s and AAPs, which they have stipulated to be representative of the documents which are the subject of this action, to the Court. No CRRs were submitted. After reviewing the docu- ments on a page-by-page basis to determine what, if any, of the information falls within an exemption to the Act, % They argue that the evidence adduced at the oral hearing and the affidavits are relevant only to the question of irreparable injury. 8a the Court is of the opinion that there is a substantial like- lihood that certain portions of the AAPs fall within the ambit of the (d)(4) and (b)(6) exemptions. To the extent that the CRRs incorporate portions of the AAPs* which the Court has determined to be exempt, those portions of the CRRs are also likely to fall within these exemptions. The EEO-1s do not come within either the (b)(4) or (b) (6) exemption. Neither the (b)(3) nor (b)(7) exemption is applicable to the EEO-1s, AAPs and CRRs. Exemption (b)(3) This exemption applies to documents ‘‘specifically ex- empted from disclosure by statute.’’ The insurance com- panies rely on these exemption statutes: §709(e) of the Civil Rights Act, 42 U.S.C. § 2000e-8(e) ; 44 U.S.C. § 350c: and 18 U.S.C. § 1905. Section 709(e) of the Civil Rights Act concerns the dis- closure of information collected by the Equal Employment Opportunity Commission (EEOC) pursuant to its author- ity under § 709 of the Civil Rights Act by employees or officers of the EEOC. The documents involved in the in- stant action were collected by the ICS, not the EEOC. The contentions put forth by the insurance companies to cir- cumvent this hurdle to the applicability of § 709(e) are lacking in merit. The courts which have considered the question of the applicability of 4 709(e) to EEO-1s, AAPs, and CRRs have uniformly rejected such arguments and held that §709(e) is not applicable to these documents. See Sears, Roebuck and Co. v. General Services Adminis- tration, 509 F.2d 527 (D.C. Cir. 1974); Goodyear Tire and 18 Although no CRRs were submitted to the Court for its inspec- tion, all parties have represented that the CRRs may contain por- tions of the AAPs. Should the parties not be able to agree as to the extent to which the CRRs incorporate exempt portions of the AAPs, representative CRRs will have to be submitted to the Court at that time. 9a Rubber Co. v. Dunlop, C.A. No. 75-1828 (D.D.C. December 9, 1975); Hughes Aircraft Company v. Schlesinger, 384 F. Supp. 292 (C.D. Cal. 1974) ; Legal Aid Society of Alameda County v. Shultz, 349 F. Supp. 771 (N.D. Cal. 1972). There- fore, the Court holds that § 709(e) does not bar disclosure of these documents. Only John Hancock relies on 44 U.S.C. § 3508. Section 3508 provides that when confidential information supplied to one agency is released to another agency, the recipient agency is subject to the same disclosure restrictions as the original agency. John Hancock argues that since the EEO-1s * were in effect released to the OFCC by the EEOC, under § 3508 the OFCC is subject to the same dis- closure restrictions with respect to this data as is the EEOC, in particular § 709(e). The EEO-1s were released to the OFCC by the Joint Reporting Committee (JRC), not the EEOC. The arguments put forth by John Hancock to circumvent this hurdle to the applicability of 4 3508 have repeatedly met with defeat in the courts. See Sears, Roe- buck and Co. v. General Services Administration, 509 F.2d 527 (D.C. Cir. 1974); Goodyear Tire and Rubber Co. v. Schlesinger, supra; Lawyers Cooperative Publishing Co. v. Schlesinger, C.A. No. 74-212 (W.D.N.Y. July 20, 1974). Therefore, the Court holds that the disclosure of the EEO- 1s is not barred by § 3508. The applicability of 18 U.S.C. § 1905 to these documents presents a more difficult question.”* Section 1905 imposes Apparently John Hancock limits its § 3508 argument to EEO- ls. Even if the argument is addressed to the AAPs and CRRs as well, it is equally defective. * To a large extent this issue will soon be of historical interest only. Congress has recently amended the (b)(3) exemption, in Public Law 94-409, to limit its scope. The Committee reports indi- cate that one of the purposes of this amendment is to assure that § 1905 is not considered to be within the ambit of exemption (b) (3). See H.R. Rep. No, 880, 94th Cong., 2d Sess., Part I, 23 (1976) and 10a criminal sanctions for the unauthorized disclosure of com- mercial or financial information submitted to the govern- ment. The insurance companies rely on the Fourth Cir- cuit’s recent decision in Westinghouse Electric Corp. v. Schlesinger, Nos. 74-1801, 74-1806, 74-2047, and 74-2048 (4th Cir. Sept. 30, 1976), and precedents from other dis- trict courts to the effect that § 1905 is one of the statutes incorporated into the (b)(3) exemption and that AAPs, EEO-1s, and CRRs are exempt from disclosure, in part, heeause of § 1905."° The District of Columbia Circuit has taken a somewhat different approach to the applicability of § 1905. In Charles River Park ‘A’’, Inc. v. H.U.D., supra, this Cireuit indi- cated that while the (b)(3) exemption may incorporate § 1905, the scope of § 1905 is no broader than the scope of the (b)(4) exemption to the Act. Id. at 941 n. 7. Considera- tion of 41905 was deemed to be appropriate in a reverse- FOTA ease only after a court determined that the informa- tion sought falls within the (b)(4) exemption. At that point, § 1905 was seen as a check on the discretionary dis- closure of exempt information. Jd. at 943.7 Therefore, Conference Report, H.R. Rep. No. 1441, 94th Cong., 2d Sess., 25 (1976). 6 They rely primarily on Chrysler Corp. v. Schlesinger, 12 F.E.P. Cases 1478 (D. Del. 1976), and Westinghouse Electric Corp. V. Schlesinger, 392 F. Supp. 1246 (E.D. Va. 1974). However, the court in Westinghouse expressly declined to resolve the question of the applicability of § 1905 to EEO-1s and AAPs, although it did view plaintiff’s argument as raising substantial questions, /d. at 1248-49. 17 The insurance companies argue that the Supreme Court's deci- sion in F.A.A. Administrator v. Robertson, 422 U.S. 255 (1975), sheds doubt on the merits of this Cireuit’s interpretation of the (b)(3) exemption and § 1905. The Robertson decision was con- cerned primarily with the question of what statutes fall within the ambit of the (b)(3) exemption. The Cireuit’s decision in Charles ae a ee eee —F hee lla consideration of the applicability of § 1905 is premature at this point and will be deferred until after this Court considers the applicability of the (b)(4) exemption. Exemption (b)(4) This exemption applies to ‘‘trade secrets and commer- cial or financial information’’ which is ‘‘privileged or con- fidential.’’ Specifically, this exemption applies to confiden- tial documents whose distlosure would cause substantial competitive injury to the person from whom the informa- tion was obtained or would impair the government’s ability - to obtain information. National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). The courts which have considered the applicability of this ex- emption to EEQO-1s, AAPs, and CRRs have reached dis- parate results. Compare Westinghouse Electric Corp. v. Schlesinger, 392 F. Supp. 1246 (E.D. Va. 1974), affirmed Westinghouse Electric Corp. v. Schlesinger, Nos. 76-1802, 74-1802, 74-2047, and 74-2048 (4th Cir. Sept. 30, 1976); U.S. Steel Corp. v. Schlesinger, 8 F.E.P. Cases 923 (E.D. Va. 1974), affirmed Westinghouse Electric Corp. v. Schles- inger, Nos. 76-1801, 74-1802, 74-2047, and 74-2048 (4th Cir. Sept. 30, 1976) ; Chrysler Corp. v. Schlesinger, supra; with Sea-Land Service, Inc. v. Morton, C.A. No. 76-161 (D.D.C. 1976) ; Sears, Roebuck and Co. v. General Services Admin- istration, 402 F. Supp. 378 (D.D.C. 1975) appeal pending; Goodyear Tire and Rubber Co. v. Duniop, supra; Hughes Aircreft Company v. Schlesinger, supra; Lawyers Coop- erative Publishing Co. v. Schlesinger, supra. In the instant action, the companies have shown that there is a substantial likelihood that some, but not all, of the information concerned in these documents falls within the (b)(4) exemption. The companies have made this showing with respect to the work force analyses, depart- River Park ‘‘A’’, Inc. v. H.U.D., supra, construed the scope of § 1905 and to that extent is not affected by the Robertson decision 12a ment lists and projected promotions data contained in the AAPs and any portions of the CRRs which incorporate this data. The companies have not made this showing with respect to the EEO-1s or any of the other information con- tained in the AAPs or CRRs. The testimony adduced at the hearing revealed that the insurance industry is a highly competitive indus- try and that the insurance companies involved in this action are engaged in intense competition with numerous other companies."* There are approximately 1600 to 1800 insurance companies in the United States.’® These com- panies, including the insurance companies who are parties to this action, compete not only with other insurance com- panies but also with the newly emerging administrative services companies.” These administrative services com- panies perform only the administrative functions involved in insurance business.”? Dr. Schwartzchild, testifying for D.C. NOW and the federal defendants, agreed that there was intense competition at the point of sale, although he did not believe there was competition in other aspects of the insurance business.** The witnesses for the insurance 8'Tr 153, 256-57, 260-61, 285, 287, 479-6, 479-7, 479-8, 487, 515, 601-02, 605, 699-70, 738, 764. In fact, no testimony was adduced to the effect that the insurance industry was not a competitive one. Neither D.C. NOW nor the federal defendants has seriously ques- tioned the existence of competition in this industry, at least with respect to competition in the sale of insurance products. 1 Tr, 257, 610. 20 'Tr 30, 285, 497-7. Tr. 30. 22 Tr, 153, 256-57, 260-61. Dr. Schwartzchild also testified that the price of the insurance product was an important aspect of the competition at the point of sale. Tr. 260. Dr. Carbone testified for John Hancock that both service and the ability to reeruit and train employees, as well as price, were important in meeting the intense competition in the insurance industry. Tr. 508. nN 13a companies testified throughout the hearing that competi- tion exists in all aspects of the insurance business.2* In the case of group insurance contracts such as the one handled by John Hancock’s Ford Group Office which is re- newable on an annual basis, the competition at the time of renewal is particularly intense.” The work force analyses, department lists, and projected promotions data contained in these documents are clearly confidential commercial information.*® This data consti- tutes commercial information in that it pertains to the mode of operations, work force, policies, and employment practices of these companies. The companies have not ecus- tomarily released these documents to the public and have consistently treated this information in a confidential manner.”® With respect to the question of whether disclosure of these documents will cause substantial competitive harm to the companies or impair the government’s ability to obtain information, the companies have set forth numerous contentions as to how such detrimental results will flow from disclosure of these documents. The Court is not per- suaded that there is a substantial likelihood that disclo- 28TIn addition, Dr. Rutenberg testified that because Prudential has diversified its business into areas other than insurance, it is competing not only against many insurance companies, but also against mutual funds, real estate companies, and mortgage bankers. Tr. 699. ** Tr, 29-30, 285, 287, 479-6, 479-7. In fact, John Hancock re- ported that it was recently unsuccessful in its competition with Aetna for the Ford Motor Company’s dental insurance contract for its union employees. Tr. 479-6 to 479-7. 2° Other courts which have considered this question have also determined that these documents are commercial and financial] in- formation, See Westinghouse Electric Corp. v. Schlesinger, supra at 684; U. 8. Steel Corp. v. Schlesinger, supra at 924. *6 Tr. 384, 454, 520-23, 653, 663-65. l4a sure of these documents will impair the government’s ability to obtain information. The Court is also not per- suaded that all of the information contained in these docu- ments falls within exemption (b)(4) because its disclosure would result in substantial competitive harm” or that all of the companies’ claims to competitive injury have merit. The Court has determined, however, that the companies have shown that there is a substantial likelihood that the disclosure of the work force analyses, department lists, and projected promotions data contained in the AAPs and any portions of the CRRs which incorporate this data would result in substantial competitive injury to the com- panies. 1. Work Force ANALYSES AND DEPARTMENT LISTS The work force analyses, or manning tables, contain a breakdown by specific job categories of the total number of employees in each job category and of the number of women and minorities in each job category.** Metropoli- tan’s Department lists also reveal the number of women, and, in the 1975 Department List, the number of minority group members (‘‘MGMs’’) employed in each of the Com- pany’s specific job categories. The disclosure of this in- formation would cause the companies substantial compe- 27 The companies do not appear to be arguing that all of the information contained in the EEO-1s, AAPs, and CRRs comes within the ambit of the (b) (4) exemption. They certainly have not introduced any evidence on, or otherwise attempted to show, how many portions of these documents, such as policy statements and introductory comments, come within this exemption. 8 For purposes of clarity, when the Court speaks of work force analysis or manning tables, it is referring to the computer print- outs and tables so titled, the Utilization Analyses, and the informa- tion contained on the line ‘‘Incumbents in job group,’’ of ‘‘B. Annual Goals,’’ in the ‘‘Utilization Analyses, Goals and Time- tables’? in Metropolitan’s AAPs. These documents contain the same type of information and present the same considerations, l5a titive harm by increasing the companies’ vulnerability to employee raiding. The raiding or proselytizing of employees is a serious problem faced by the insurance industry today,” particu- larly for large companies with sophisticated training pro- grams such as John Hancock, Metropolitan, and Pruden- tial.” Proselytizing of employees is particularly prevalent during periods when there is a sharp increase in demand for particular labor skills or categories of employees.” Such an increase is occurring today in the insurance in- dustry with respect to female and minority group members with the training and experience these companies pro- vide.” Thus, the raiding of employees, particularly of women and minority group members, is a distinct and serious prospect for these companies. Although raiding has occurred in the past without access to these documents through the use of other sources of information,” these alternative sources of information do not provide as efficient and comprehensive a method for employee raiding as the manning tables and department * Tr. 33, 40, 479-17, 491, 519, 607-08. * Tr. 606-612, The testimony revealed that both John Hancock and Prudential had in the past lost valued employees to others because of raiding. Tr. 510, 607-608, 754-55. Dr. Carbone testified that attempts had been made to proselytize him. Tr. 510. Tr, 607-610. *? Id. NOW’s and the guvernment’s expert, Dr. Schwartzchild, agreed that this raiding of minorities and females trained in in- surance would do competitive harm to a company, Tr. 256. Tr. 184, 186, 189, 315, 631-32, and 715-16. The alternative sources of information referred to by D.C. NOW and the federal defendants are personal contacts, trade and inhouse publications on noteworthy employees, trade association membership lists, the information on file with state insurance commissions, ‘‘head- hunters,’’ and general knowledge in the insurance industry about successful salespersons. l6a lists would provide. The licensing information on file with the state insurance commissions is not particularly useful since it pertains only to sales agents and does not reveal the agent’s race or sex or whether the agent is an active, inactive, or part-time agent.** The membership lists of various industry associations may provide some useful information on potential raiding targets, but not all em- ployees belong and those that do are listed only if they have paid their dues.** While a raider may be able to stumble upon a trade or in-house publication about note- worthy employees, such publications are not helpful in locating the experienced but less visible employee. Dr. Schwartzchild testified that a raider’s contacts within a particular office would be an easier method than the use of these documents to locate employees,** but this assumes that the raider has such contacts.*’ Finally, none of these sources provide the raider with a comprehensive picture of the breakdown of the work force in particular offices.” Even with the names and identification numbers of em- ployees deleted, disclosure of the manning tables would Tr. 307, 529, 654, 668. While Schedule G which is also filed with state insurance commissions lists employees earning more than $30,000 a year, it would not be of any use in locating em- ployees paid less than $30,000. As Dr. Rutenberg testified, many key employees in whom raiders would be particularly interested earn less than $30,000 a year. Tr. 722. Indeed, only about 242% of Prudential’s employees are listed on Schedule G. Tr. 616. % Tr, 306, 654-55. Mr, Dunn testified that Prudential has found that these membership lists are not at all accurate with respect to its employees. Tr. 654-55. 8° Tr, 189, 315. 8? Neither D.C. NOW nor the federal defendants demonstrated how frequently raiders had such contacts or how adequate they were. 38 Dr. Schwartzchild admitted that he did not know of any other source of information which would reveal the number of people employed in a particular office. Tr. 189. 17a significantly enhance a person’s ability to locate employees and the companies’ vulnerability to raiding. The tables systematically and precisely provide information which is currently available, if at all, on a ‘‘hit-or-miss’’ basis. Because the tables provide a breakdown of employees at a particular location by job, grade, sex, and race, these tables provide information on the precise location and avail- ability of many types of employees, such as computer pro- grammers or claims approvers, by sex and race, which does not appear to be currently available to any significant de- gree. Unlike the existing sources of information, these tables provide a comprehensive picture of employees at a particular office and identify pools of potential subjects for raiding.” Disclosure of these tables would, therefore, reveal to the raider which offices are particularly produc- tive grounds for raiding different types of employees. Be- cause these tables identify the precise job in which a per- son is employed, and hence the person’s probable experi- ence and training, as well as the employee’s sex and race, they would allow a raider quickly and easily to pinpoint the precise type of employee in which the raider is inter- ested and that person’s specific geographic location. Dis- closure of these tables would provide a much more accurate and efficient method for raiding than the information cur- rently available. Thus, the disclosure of these tables would increase the efficiency of raiding, the vulnerability of these companies to the raiding of individual employees, and the impact on these companies of such raiding. The disclosure of this information would also enhance the efficiency of the companies’ vulnerability to what has been called ‘‘vacuum cleaner’’ raiding. This occurs when a party raids an entire cadre of employees,*® which is a °° Various witnesses testified at the hearing that this data would reveal the existence of pools of employees and that this informa- tion would be particularly useful to potential raiders. Tr. 59-61, 492, 525-26, 546-47, 706-08, 717. “© Tr, 700-01, 707-08, 788. 18a common practice in the insurance industry." Because the manning tables and department lists systematically and comprehensively lay out the number of employees and distribution of these employees among specific job cate- gories at the different offices, the potential vacuum cleaner raider could quickly and easily identify the exist- ence and location of the precise type of team of em- ployees in which he is interested.” As noted, this type of information is not currently available from any other source.” This increased susceptibility to vacuwn cleaner raiding poses a particularly serious problem in light of the rise of the administrative services companies who are looking for teams of trained eraployees.“* The increased susceptibility to more efficient raiding which would result from disclosure of this data would inflict substantial competitive injury on these companies. The loss of experienced and trained employees alone is a serious injury to these companies. It would impair their productivity and efficiency and thereby place them in a weaker competitive position.** The acquisition of these trained and experienced employees from these companies by a competitor would also, in turn, greatly strengthen the competitor’s competitive position.“ Added to this is 41 Tr, 700-01, 707-09, 710-11. While Dr. Krantz testified that vacuum cleaner raiding is an almost nonexistent practice, Tr. 789. he must not have been aware that Prudential was the subject of this practice when it lost the entire nucleus of a group insurance office. Tr. 608. 42 Tr, 707-68. 43 See note 38 supra and accompanying text. ** Tr, 479-17, 479-18. 43 Service is an important aspect of the competition in the in- surance industry. Tr. 508, Consequently, this impairment of the efficiency and adequacy of their service would cause serious com- petitive injury. 46 Tr, 479-19. ee eee eee - CORE eee ee 19a the substantial cost involved in replacing only one em- ployee.” With increased raiding, the cost of replacing lost employees would become quite burdensome. This bur- den would most likely be reflected in an increased price for the companies’ products; and since price is a critical element in meeting the competition in the insurance in- dustry,** these companies would be placed at a disad- vantage in meeting the competition. The increased susceptibility to vacuum cleaner raiding would also seriously injure these companies. A competi- tor interested in expanding into a new area or employ- ing a new technology but who does not have employees trained in the new area or technology could easily shang- hai an entire team of employees from these companies which team would readily be revealed from these tables. Not only would such pirating confer a great advantage on the competitor who would thereby be able to offer new and more challenging competition, it would also eri- tically disrupt the operations of the raided company which would place it at a serious disadvantage in meeting this competition.** = Testimony was adduced at the hearing that the cost of replac- ing a claims adjuster is $6,000, the cost of replacing a senior ex- aminer is about $16,000 and the cost of replacing a field examiner is $25,000. Tr. 368-69. Mr. Thomas Kelley, an Assistant Vice Presi- dent at Metropolitan, put the total investment in recruiting, train- ing and developing a sales representative over three and a half years at $75,000. Affidavit of Mr. Thomas Kelley, Metropolitan Exhibit 2, J 3. Mr. Peter Carbone, John Hancock’s Vice President of Sales, testified that a new sales agent receives an allowance dur- ing training and is in effect subsidized during his initial sales experience. The cost of the training allowance is more than $6,000 in the first year. Tr. 509. Mr. Carbone further testified that training expense was a tremendous expense incurred by John Hancock. Id. Dr. Hendricks also testified that the resulting cost of retraining would add an undue expense to a company. Tr. 368. *8 Tr, 260, 508, 510-11. 4° Tr. 699-700. 20a Moreover, there is a danger that raiding could occur precisely for the purpose of hurting a competitor as much as for the purpose of gaining experienced employees.” Dr. Rutenberg testified that enormous competitive damage could be visited upon these companies by a competitor intent upon doing such damage. With access to the de- tailed information contained in the work force analyses, a competitor could pinpoint perhaps no more than 12 critically located technical employees whose loss would cause the companies enormous problems.” The courts which have considered the problem of raid- ing in connection with the disclosure of EEKO-ls, AAPs, and CRRs have reached disparate results. In Chrysler Corp. v. Schlesinger, supra, the court determined that the work force analyses fell within the (b)(4) exemption in part because of the raiding problem disclosure presented. In both Sears, Roebuck and Company v. General Services Administration, 402 F. Supp. 385 (D.D.C. 1975), and Hughes Aircraft Company v. Schlesinger, supra, the courts were unconvinced by the information suppliers’ raiding arguments. In both of these cases the companies apparent- ly based their raiding analysis on the somewhat similar premises. In Sears, the companies appear to have argued that these documents reveal disgruntled employees who would be susceptible to raiding. Jd. at 384 n. 10. In Hughes, the companies apparently contended that disclosure of the information revealing employee turnover would re- veal employee dissatisfaction, and thereby encourage raid- ing of the company’s employees. Id. at 297. The insurance companies here have proceeded upon entirely different, and much sounder, premises. In the two other cases in this district court which determined that AAPs did not fall 8° Tr, 710. 5° Tr. 710-1. See letter of Lawrence Lorber, Director of the OFCC, to Wil- liam F. Joy, dated July 13, 1976. 27a products or how disclosure would otherwise result in com- petitive injury. Many of the training programs are com- mon training programs which any major insurance com- pany would be expected to have.” Further, the fact that a large or small number of employees is enrolled in a par- ticular training program is susceptible to several interpre- tations, such as high or low employee turnover in those jobs or that the program has been made available to all empioyees. The training data would not be particularly useful to a potential raider since it does not reveal the specific job held by the trainee or the total number of em- ployees who have taken a particular course. The companies have also failed to demonstrate how a competitor could use the information contained in the ap- plication logs, the other information contained in the ter- mination logs or the list of recruiting sources to inflict sub- stantial competitive injury upon them. Certainly the termi- nation logs are useless to a raider; and the application logs, like the training data, lack the specificity and comprehon- siveness of the manning tables. Most of the reeruiting sources are ones commonly used by employers,” and the names of individual contacts within a source would be of little use to a competitor unless it knew how helpful that source was and went to the trouble of cultivating that par- ticular source itself. 4. IMPAIRMENT OF THE GOVERNMENT’S ABILITY TO OsTaIn INFORMATION. The insurance companies have failed to demonstrate a substantial likelihood of success on the merits with respect to their claim that disclosure of the AAPs will impair the government’s ability to obtain information. Title VII of © Tr. 62, 230, 233-36, 240-41. ** For example, local community colleges and the local chapter of the NAACP are such common sources. 28a the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq., the Executive Orders, and the agencies’ regulations pro- mulgated thereunder require the companies to report much of the information contained in the AAPs. However, testi- mony was adduced to the effect that these reports contain more information than the companies are required to pro- vide and that if they were publicly available, in the future, the quantity and quality of information provided would decline.”* By agreeing to disclose most of the information contained in the AAPs, the ICS must have felt that dis- closure would not impair its ability to obtain information. Further, the threat of compliance actions and/or refusing to enter into contracts with these companies, should enable the ICS to obtain the information it desires. Accord, Na- tional Parks Conservation Ass’n v. Morton, supra at 770; Hughes Aircraft Company v. Schlesinger, supra at 296. Exemption (b)(6) This exemption applies to personnel, medical, or similar files the disclosure of which would constitute a ‘‘clearly unwarranted invasion of personal privacy.’’ 5 U.S.C. § 552 (b)(6). In this Cireuit, the information must satisfy a three-part test for this exemption to be applicable: (1) the information must constitute personnel, medical or similar files; (2) the disclosure of the information must constitute an invasion of personal privacy; and (3) the severity of the invasion of personal privacy must outweigh the public interest in disclosure. Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 76-77 (D.C. Cir. 1974); Getman v. N.L.R.B., 450 F.2d 670, 674 (DL. Cir. 1971. In the instant action, the government has agreed to delete employees’ names, social security numbers, em- ployee identification numbers, and other identifying infor- mation. The government has not made clear what it means 78 Tr, 31-33, 99, 100, 378, 381-82, 559. Affidavit of Thomas C. Kelley, dated September 7, 1976, at {| 12, filed September 15, 1976; affidavit of Colby Tibbetts dated September 7, 1976, at {[ 21, filed September 15, 1976. 29a by the phrase ‘‘other identifying information.’ * Since this Court finds that even with names and identification numbers deleted from these documents, individual employ- ees can still be identified in certain portions of the AAPs, that in certain contexts such identification would result in a clearly unwarranted invasion of personel privacy, and that the government’s statement concerning ‘‘ other identi- fying information’’ is nebulous at best, this Court is of the opinion that certain portions of the AAPs which the gov- ernment has not clearly determined to delete may well come within the (b)(6) exemption to the Act. These por- tions are: (1) the statistical data or narrative data on projected promotions or the lack of promotion prospects; * (2) the Department Lists contained in Metropolitan’s AAPs; (3) ‘he reasons for termination contained in the Termination Tables contained in John Hancock’s AAPs; ™ and (4) the narrative comments in the AAPs involving per- formance or job evaluations or the preferences, goals, or comments of employees where there is a reasonable possi- bility that the employee could be identified by other per- sons. *® At the hearing D.C. NOW waived any right to any personal, identifiable, negative information concerning employees. Tr. 114. D.C. NOW did not waive any right to any other personal informa- tion about an identifiable individual. *° The Court is referring to the same statistical and narrative data on projected promotions which was found to be within the (b) (4) exemption, See pages 24-26, supra. 81 Metropolitan’s and Prudential’s termination tables do not con- tain the detail provided in John Hancock’s termination logs, Con- sequently, employees could not be identified from the data con- tained in their termination tables, whereas such identification is possible with John Hancock’s log because of the extensive informa- tion contained therein. For a case in this District Court also order- ing the deletion of the reasons for an employee’s termination, see Sea-Land Services, Inc. v. Morton, supra. 30a For purposes of clarity, some further comments on oe type of narrative comments this Court has determined fal! within exemption (b)(6) are in order. Such comments most frequently occur in the ‘‘Problem Areas’’ or ‘‘Goals and Timetables’? portions of the AAPs. This Court does not mean to imply, however, that all narrative comments in these two sections are exempt or that only the comments in these two sections are exempt. The following examples are intended to illustrate the types of narrative comments this Court finds fall within the (b)(6) exemption: a) A comment that an MGM ina particular unit or department who was hired six months ago is doing very well and shows management potential ; b) A comment that a female in a particular unit or department who was recently promoted is training for a particular job; c) A comment that the MGMs in a particular unit or department do not show much potential; d) A comment that no promotions are anticipated in a particular unit or department in the next year, or two years; and e) A comment that in a unit or department with ap- proximately thirty employees only one or two promo- tions is anticipated in the next year or two. More general narrative comments, as illustrated below, do not fall within the ambit of the (b)(6) exemption: a) A comment that there is a low turnover in a par- ticular unit or department; b) A comment concerning the number of persons hired, promoted, or transferred in the last year; c) A comment that the company intends to hire or recruit more women or MGMs for a particular job or unit; and | 3la d) A comment that a certain unnamed woman in a unit employing 20 women is well suited to her job. Much of the information contained in the AAPs does not constitute a personnel, medical, or similar file within the meaning of (b)(6). However, those portions of the AAPs which contain data on promotions, job performance, job evaluations, and personal preferences and goals do constitute ‘‘similar files’’ in that they reflect highly per- sonal details about company employees. Rural Housing Alliance v. United States Department of Agriculture, supra, at 77. Much testimony was adduced at the hearing to the effect that individual employees being referred to in the AAPs could be identified by their fellow workers.*? After review- ing the representative AAPs, this Court is also of the epinion that such identification is possible with respect to John Hancock’s termination logs, Metropolitan’s de- partment lists, the projected promotion tables and cer- tain narrative comments.“ These portions of the AAPs, even with names and identification numbers deleted, still contain sufficient information, such as dates of hire and termination, job title, race, and sex, to enable a co-worker or other person in possession of this information to ree- * Tr. 44, 351, 372-75, 556, 624-25. Consideration of the possibility that persons particularly familiar with the information will be able to identify individuals, even though the general publie could not, is appropriate in determining whether disclosure will result in an invasion of privacy. Department of the Air Force v. Rose, 96 S. Ct. 1592, 1608 (1976). “8 After reviewing the documents and evaluating the testimony, it appears to the Court that while identification is possible in most instances, it may not be possible in all instances. This is a sufficient showing to warrant a preliminary injunction, A more discriminat- ing analysis of this data to pinpoint precisely when identification is and is not possible would be required before any permanent in. junctive relief would be warranted. 32a ognize the employee to whom the tables or comments per- tain.™ The disclosure of information concerning an employee’s promotion prospects, lack of promotion prospects, job- performance evaluations, and personal preferences and goals and the reasons for an employee’s termination con- tained in these portions of the AAPs would constitute a substantial invasion of the companies’ employees’ per- sonal privacy. The disclosure of negative comments or information about an employee on these subjects could be quite embarrassing and painful to the employee. While many of the comments and much of the information = favorable or neutral, the (b)(6) exemption was designe to protect individuals from a wide range of crease disclosures, not just the disclosure of derogatory infor- mation.** Indeed, the disclosure of favorable information could place the employee in a very embarrassing position with other, possibly jealous, employees.” oe i ion supplier’s claim to a (b) (6) exemption in Pty Aer po Penta v. General Services respi arn 402 F. Supp. 378 (D.D.C. 1975), appears to have been reje ted in large part because the Court did not feel that individual aoe could be identified. Jd. at 384. As the AAPs submitted to this — reveal, the AAPs vary greatly in the amount and — _— sentation of the information contained in these oe . ; an it may be that Sears’ AAPs did not contain the same kind of de as those presented to this Court. | = i rsuaded by the companies’ claims that dis- Pg pag face ’s sex aan marital status would result 7 an invasion of privacy. An employee’s sex must be a . : marital status is almost as equally well known to co-workers, ~ ws extent that any invasion of privacy would result from diselosu of an employee’s marital status, it would be quite slight. 86 Rural Housing Alliance v. United States Department of Agri- culture, supra at 77. 87 Tr. 559. 33a To determine whether the invasion of privacy is ‘‘clearly unwarranted,’’ this Court must de novo balance the se- verity of the invasion of personal privacy with the pub- lic interest in disclosure, with a “tilt”’ in favor of dis- closure. Rural Housing Alliance v. United States Depart- ment of Agriculture, supra; Getman v. N.L.R.B., supra. In the instant action, the invasion of the employee’s pri- vacy which would result from the disclosure of this infor- mation would, as discussed, be substantial. D.C. NOW asserts that the public interest will be served by disclo- sure in that D.C. NOW intends to use the information to further the goals of equal employment opportunity and elimination of discrimination in employment. D.C. NOW also claims that it has no alternative sources for securing this information. While the interest asserted by D.C. NOW is one which has been considered by the courts in determining whether an invasion of personal privacy is clearly unwarranted® and D.C. NOW probably has no other source fur this information, the severity of the potential invasion outweighs the factors favoring disclo- sure in this case. Much of the information, such as that concerning the employee’s personal preferences and goals and job performance evaluations, has little, if any, rele- vance to the public interest asserted. Thus, deletion of such information will have no effect on the public interest asserted. Some of the information may be relevant to this public interest. However, the information the disclosure of which this Court feels would result in a substantial invasion of personal privacy constitutes only a very small portion of the information contained in the APPs. Dele- tion of this small amount of information should not sig- nificantly impair the achievement of D.C. NOW’s goals. To the extent that any impairment may result from non- disclosure, the severity of the invasion outweighs such an impairment to the achievement of the public interest. 88 See Sears, Roebuck and Company v. General Services Admin- istration, 402 F. Supp. 378, 384 (D.D.C. 1975). . 34a Exemption (b)(7) The insurance companies contend that these documents are investigatory records compiled for law enforcement purposes within the meaning of exemption (b)(7), and, as such, are exempt from mandatory disclosure under the Act. In light of recent cases by this District Court and the United States Court of Appeals for the District of Columbia Circuit, the Court is of the opinion that the companies have not shown a substantial likelihood of success on the merits with respect to this contention. Unlike the present case, in the cases relied upon by the companies to support their position, the government was raising the (b)(7) exemption. In both Goodyear Tire and Rubber Company, supra and Sears, Roebuck and Com- pany v. General Services Administration, 384 F. Supp. 966 (D.C.C. 1974), this District Court refused to apply exemption (b)(7) in reverse-FOIA actions. In Sears, the Court determined that this exemption was designed to protect the interests of the government, not private par- ties, and therefore held that where, as here, the govern- ment determines to disclose information, a private party lacks standing to assert the government’s interests under exemption (b)(7). 7d. at 1004. Although this Circuit has not affirmed the position taken by the District Court, it has held that the (b)(7) exemp- tion does not apply to AAPs and EEO-1s for other rea- sons. Distinguishing between reports compiled as part of a routine monitoring process and reports compiled as part of an investigafon focusing directly on specifically alleged illegal acts, the Court determined that the AAPs and EKO-1s which a government contractor was required to supply in order that its compliance with executive orders could be monitored were not ‘‘investigatory files”’ and were not exempt under (b)(7). Sears, Roebuck and Company v. General Services Administration, 509 F.2d 527, 529-30 (D.C. Cir. 1975). In the instant action, the 35a insurance companies’ AAPs and EEO Is w i i ‘ - ere submitted in connection with the OFCC’s general monitoring proc- ess and not in connection with an investigation of speci- fic illegal actions of the companies. The CRRs were com- piled by the agency as part of thi few seeseen, p is Same routine monitor- Agency Discretion The fact that certain portions of the AAPs and CRRs contain exempt information does not alone prevent their disclosure. In this circuit, the disclosure of exempt infor- mation is discretionary with the agency, and can onl be reversed for an abuse of discretion. Charles River Park ‘A » Inc. v. H.U.D., supra at 943. Once the court determines that the information sought falls within an exemption, it must then determine whether the agenc abused its discretion. In determining whether the aa abused its discretion, the court must determine first eed ther the disclosure of the exempt information would be a violation of § 1905 and if not, whether disclosure would otherwise be an abuse of discretion. Jd. at 943. In the instant case, some of the exempt information the agency determined to disclose comes within the ambit of § 1905 and, in addition, the agency abused its discretion in deter. mining the disclose the exempt information. Section 1905 imposes criminal penalties on government employees who disclose any information coming to them in course of their employment which relates to, inter alia processes, operations or styles, if such disclosure is not authorized by law. If the disclosure of exempt informa- tion would constitute a criminal offense, such disclosure would be clear abuse of the agency’s discretion. Charles River Park ‘‘A’’, Inc. v. H.U.D., supra at 943. In the in- stant case, the disclosure of certain portions of the in- formation the Court has determined to be exempt would constitute a criminal offense under § 1905. Hence, the agen- 36a cy’s decision to disclose this information was a clear abuse of its discretion. The agency officials obtained the information in the APPs and CRRs in the course of their employment. The manning tables, department lists, and projected promo- tions * contained therein constitute information pertain- ing to processes, operations, and styles of work within the meaning of § 1905.” The disclosure of this information is not authorized by law. The federal defendants argu- ment that disclosure is authorized by the regulations im- plementing the FOIA, 41 C.F.R. §§ 60-40.1 et seq. ignores the fact that the Act is not a source of authority for pro- mulgating regulations on information exempt under the Act. The release of exempt information cannot be justi- fied on the basis of such regulations. Charles River Park “«4’’, Inc. v. H.U.D., supra at 942. from § 1905, the agency also abused its disere- on owl em to disclose the exempt information. The ICS and the OFCC failed to exercise any discretion with respect to the exempt information and to give pond meaningful consideration to whether discretionary = closure was appropriate. In addition, the disclosure of the exempt information in the face of government representa- © ions of the AAPs and CRRs which are exempt from Pa ly only by virtue of Seetion (b) ( 6) _ do = also come within the (b)(4) exemption, are not within the — of § 1905. That information does not constitute information rel ing to processes, operations or styles of work within the on of § 1905. Further, this Circuit has indicated that the scope © § 1905 is, at best, coextensive with the scope of the a “~> release of information to other agencies (a) If information obtained in confidence by a Fed- eral agency is released by that agency to another Federal agency, all the provisions [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1297%3A1. Public record. Not legal advice.