An applicant rejected for hire as an Electronic Technician, PS-11 was denied the right to visually review his test documents. The U.S. District Court in Pennsylvania wrote:
Plaintiff attempts to concoct a “scenario” to circumvent said exemptions. Plaintiff states that he “does dispute that the cited law [by the USPS] totally preclude[s] the Plaintiff’s right to seek a review of the test given and answers made to it by the Plaintiff.” To that end, Plaintiff suggests that he be permitted to review the documents in camera, with an appropriate court officer, “with no capability of the Plaintiff to copy or otherwise reproduce the very information he requested.” This, Plaintiff believes, would provide him with “his day in court” while still preserving the USPS’s testing protocols without the fear of compromise. Plaintiff cites no law for this “scenario” and I find no support in the law for it either. Permitting a review of the documents visually is, in essence, the same result as producing the document in hard copy. Consequently, I find that dismissal is warranted.
Here is some background from the case:
Thomas J. Donegan registered with the USPS to undergo an examination to determine his eligibility for hire as an “Electronic Technician, PS-11.”. The test was administered on June 11, 2008. Donegan did not pass the test and sought to see the test results as part of a Freedom of Information Act, 5 U.S.C. §552, (“FOIA”) request. Donegan’s FOIA request was denied. As a result, Donegan filed the “Complaint for Injunctive Relief” against USPS for violation of the FOIA for wrongful withholding of agency records seeking the immediate release of the test, results and the correct answers. (ECF No. 1).
USPS filed a Motion to Dismiss the Complaint arguing that the records were properly withheld pursuant to Exemptions 2, 3 and 5 of the FOIA. (ECF Nos. 5 and 6).
court footnote: Exemption 2 authorizes an agency to refuse a FOIA request when the materials sought relate solely to the internal personnel rules and practices of an agency. 5 U.S.C. §552(b)(2). Exemption 3 authorizes an agency to refuse a FOIA request when the materials sought are expressly exempted from disclosure by another statute. 5 U.S.C. §552(b)(3). Exemption 5 authorizes an agency to refuse a FOIA request when the materials sought are inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. §552(b)(5).
The USPS asserted that the documents were properly withheld pursuant to Exemptions 2, 3 and 5.2 (ECF No. 6). In response, Donegan stated:
The Defendant has provided to this Honorable Court a Brief with supporting law that in essence tells this court that the information requested does not have to be provided to the Plaintiff because it is specifically exempted as a personnel record, is exempted specifically by statute and is specifically exempted as privilege information.
In candor to this tribunal, Plaintiff does not through counsel dispute that the law cited by the Defendant is appropriately provided to the court….
In essence, therefore, Plaintiff does not dispute that the documents were properly withheld pursuant to the Exemptions. I agree. See, Kaganove v. E.P.A., 856 F.2d 884 (7th Cir. 1988)(rating plan of EPA was held exempt under FOIA because it would allow future applicants to embellish job qualifications); Patton v. FBI, 626 F.Supp. 445 (M.D. Pa. 1985)(holding testing material falls within §552(b)(2) FOIA exemption); Robinett v. U.S.P.S., No. Civ. A. 02-1094, 2002 WL 1728582 (E.D. La. July 24, 2002)(information concerning criteria that postal service used to evaluate job applications was exempt from disclosure under the Postal Reorganization Act and therefore falls within Exemption 3); Lewis v. E.P.A., Civ. A. No. 06-2660, 2006 WL 3227787, *4 (E.D. Pa. 2006)(holding documents designed to assist in employee election process fall within Exemption 5 of FOIA). As a result, I find that the USPS properly withheld the documents pursuant to Exemption 2, 3 and 5.
THOMAS J. DONEGAN v. UNITED STATES POSTAL SERVICE
United States District Court, Western District, Pennsylvania.
Opinion filed: March 17, 2011