Appeals court holds that Air Force cannot selectively withhold poll results

WASHINGTON, D.C. — The Air Force cannot routinely withhold poll results from a survey of the views of enlisted men and officers on their working conditions, a federal appeals court ruled in early August.

Although the Air Force issued press releases on some favorable findings from the surveys, it denied requests for other poll results, claiming they were “pre-decisional.” The FOI Act operates on the premise that “government will function best if its warts as well as its wonders are available for public review,” the appeals panel wrote.

In the 1980s the Air Force commissioned numerous telephone surveys by private research companies. In November 1989 the Air Force Times filed an FOI Act request for results of the surveys. The agency released seven pages and withheld 6,000. The Times appealed but received no response.

In 1990 the Air Force issued a news release claiming that, based on the polls, Air Force commissary customers were happy with the services provided them. The agency also released to Air Force Times reporters one poll showing Air Force recruiters were the happiest recruiters in the military and another showing that 82 percent of patients at Air Force hospitals were happy with services. (The latter poll showed an unexplained slight drop in patient happiness since an earlier survey.)

The newspaper sued the Air Force for remaining survey result records in October 1990. It did not seek information on individual responses to the survey. In September 1991 a federal district court in Washington, D.C., ruled that the Air Force could withhold the survey results under the FOI Act’s Exemption 5. The district court said that exemption protects advisory opinions, recommendations and deliberations during the course of agency decisionmaking. It said release of the statistical results could cause individual respondents to be less candid in future surveys. It also said that release would expose “areas of inquiry” deemed important to Air Force policymakers.

In overturning that decision, the appeals panel rejected the Air Force’s claim that survey respondents would be less candid if they thought survey results would be released. Any chilling effect would come from release of the survey to Air Force brass, not to the public, the court wrote. To withhold any results, the Air Force must show that the disclosure would actually inhibit candor in a way in which the polls it already had released concerning commissaries, recruiters and patient care would not. The FOI Act was designed to keep an agency from “cherry- picking” the materials it would make public, the panel wrote.

(The Army Times Publishing Co. v. Air Force; Media Counsel: Martin Wald, Washington, D.C.)