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04/03/78 Mead Data Central, Inc., v. United States Department

April 3, 1978




Bazelon, McGowan and MacKinnon, Circuit Judges.


Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-0202).



Mead Data Central, Inc. markets a computerized system for retrieving legal data. In February 1975, MDC submitted an unsolicited proposal to the Air Force recommending that the MDC system be substituted for a competitor's system already in use by it. Some time in late August or September of that year -- the record indicates only that it was between August 29 and September 22 -- the Air Force rejected MDC's proposal.

Since that time, MDC has vigorously sought access under the Freedom of Information Act , 5 U.S.C. ยง 552, to the Air Force documents that reflect its course of negotiation with MDC's competitor as well as its consideration and rejection of MDC's February 1975 proposal. MDC's efforts have been partially successful, due both to the Air Force's voluntary compliance with some of MDC's FOIA requests, and to an earlier decision of a panel of this court involving a separate request. Mead Data Central, Inc. v. United States Department of Air Force , 184 U.S. App. D.C. 350, 566 F.2d 242 (1977).

In its request involved in the present case, MDC seeks disclosure of Air Force documents reflecting the agency's evaluation and response to MDC's proposal. The Air Force complied with much of MDC's request in its initial response and further upon MDC's appeal within the agency. *fn1 The District Court, after in camera inspection, ordered additional disclosures of parts of two of the withheld items, but largely upheld the Air Force's claim that all or portions of eight documents fit within the policy-deliberative part of Exemption 5, 5 U.S.C. 552(b) (5). We affirm.

We agree with appellant that factual material cannot be exempt under Exemption 5, EPA v. Mink, 410 U.S. 73, 93, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), so long as it does not "expose the deliberative process." MDC-I (supra) 566 F.2d at 256. We agree with respondent and the District Court, however, that the material withheld in this case -- mainly cost comparisons, feasibility opinions, and the data relevant to how the personnel involved arrived at those comparisons and opinions -- are policy deliberative. They are not raw facts with informational value in their own right, but instead serve primarily to reveal the "evaluative" process by which different members of the decisionmaking chain arrived at their conclusions -- and what those predecisional conclusions are. Washington Research Project, Inc. v. HEW, 164 U.S. App. D.C. 169, 504 F.2d 238, 250 (1974). In addition, the cost comparisons and feasibility opinions are directed at a very specific decision, i.e., whether or not to accept MDC's proposal. See MDC-I (supra) 566 F.2d at 257; Washington Research, supra; compare Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143-47 (1976). While MDC correctly notes that the end product of these Air Force deliberations on the MDC proposal is not a "broad policy" decision, that deliberation is nonetheless a type of decisional process that Exemption 5 seeks to protect from undue public exposure. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); S.Rep. 813, 89th Cong., 1st Sess. 9 (1965).

In sum we are in agreement with the District Court that Washington Research controls the present case. The former decision's reading of Exemption 5 to cover evaluative summaries of, and site visit reports on, mental health grant applications requires a similar result under the circumstances before us, involving the Air Force's evaluation of MDC's "application" for a contract to furnish the Service's legal data retrieval system. We find MDC's attempts to distinguish Washington Research -- including by reference to Vaughn, supra -- unpersuasive. In both cases, the "basic factual data was available" to the requester, Vaughn (supra) 523 F.2d at 1147 n.38, leaving undisclosed only "evaluations [and comparisons] based on . . . the writer's own values." Appellant's Brief at 14.

We are also convinced that, between the appeals officer at the Air Force and the District Court, the necessary efforts were made to identify and disclose all "reasonably segregable" and purely factual material. The Air Force accordingly has complied with its own regulation, 32 C.F.R. 806.25 (1976), as well as with FOIA. Thus, the Air Force official involved at the agency's appellate level averred in his affidavit that he attempted to disclose "all reasonably segregable factual portions," Appendix (App.) at 12, and it seems clear from the materials he ordered provided to MDC (overruling his subordinate) that such an effort was made. He also showed an awareness of the rule that factual material may be withheld only if it was inseparable, without distortion, from the underlying policy deliberation. App. 14-15.

Moreover, in reviewing that official's determinations, the District Court, following its own viewing of the documents, ordered disclosure of two minor "'factual' and 'narrative'" portions. App. at 19, quoting Washington Research (supra) 504 F.2d at 250-51. This last suggests both that Air Force officials exercised reasonably sound judgment in drawing their conclusions as to the exempt nature of the documents, and that the District Court carefully reviewed those administrative conclusions for consistency with the appropriate legal standard.

Finally, appellant's complaints about the alleged brevity and conclusory format of the Air Force's description of the undisclosed materials and of its segregability claims lose much of their force because the District Court, after in camera inspection, accepted appellant's own description of the documents. It simply disagreed with appellant's legal conclusion as to the nonexempt nature of the materials thus described. App. at 19. We therefore do not have a situation in which the basic contents of the documents are in dispute. Instead, we are confronted primarily with legal questions which the District Court has answered correctly. Compare MDC-I (supra) 566 F.2d at 250.

We also reject MDC's other major claims, emphasized in oral argument, that the withheld material, especially item 6, see note 1 supra, is thoroughly reflective of the reasons actually, finally, and self-consciously relied on by the Air Force in rejecting the MDC proposal. If the withheld portions met this description, we agree that they would embody the final decision itself and would have to be disclosed. See NLRB v. Sears, Roebuck & Co. (supra). See also 32 C.F.R. 806.23(e)(5) (1976). At best, however, MDC could only assert before us in argument that the conclusions and supporting cost comparison data in the item 6 feasibility study issued on June 13, 1975, might contain the Air Force's reasons for its August-September 1975 decision not to accept MDC's proposal.

Refuting this assertion by MDC is the Air Force's own characterization of the study as "an internal communication of opinion [that] is not a final agency decision." App. 15. The Air Force's description is supported by the fact that two and one-half to three and one-half months passed between the issuance of the item 6 study and the agency's decision. During that time, as the document descriptions make clear, the cost study itself was apparently analyzed and criticized by Air Force officials, and "additional cost factors" and "possible changes in the study" were discussed. See items 2, 3, 4; note 1 supra. Moreover, ...

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