2 Wage & Hour Cas.2d (BNA) 202
PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plаintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF the AIR FORCE, Defendant-Appellant.
SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO;
Rebound, Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Defendant-Appellee.
SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO;
Rebound, Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Defendant-Appellant.
Nos. 90-16659, 91-35076 and 91-35193.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 7, 1992.
Submission Withdrawn March 15, 1993.
Resubmitted April 18, 1994.
Decided June 20, 1994.
John F. Daly, U.S. Dept. of Justice, Washington, DC, for defendant-appellant.
Pauline M. Sloan, San Francisco, CA, for plaintiff-appellee in No. 90-16659.
David Campbell, Schwerin, Burns, Campbell & French, Seattle, WA, for plaintiffs-appellants, appellees.
John F. Daly, U.S. Dept. of Justice, Washington, DC, for defendant-appellee, appellant, in Nos. 91-35076, 91-35193.
Appeal from the United States District Court for the District of Hawaii.
Appeal from the United States District Court for the Western District of Washington.
Before: WRIGHT, NORRIS, and HALL, Circuit Judges.
Opinion by Judge CYNTHIA HOLCOMB HALL; Concurrence by Judge WILLIAM A. NORRIS
CYNTHIA HOLCOMB HALL, Circuit Judge:
We have before us two cases in which labor organizations seek to procure records from government agencies under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. They seеk to glean insight into the government's enforcement of prevailing wage standards for employees of government contractors. In each case, the district court ruled for the labor organization and ordered the government agency to produce the information. We reverse.
* In No. 90-16659, the Painting Industry of Hawaii Market Recovery Fund ("Recovery Fund") sought disclosure from the Air Force of certain payroll information provided to the government by a private contractor working on a construction contract at Hickam Air Force Base. The contractor was required to pay workers the prevailing wage for their work under the Davis-Bacon Act, 40 U.S.C. Sec. 276a, and Federal Acquisition Regulations, 48 C.F.R. Secs. 22.400-22.407. Under the Copeland Anti-Kickback Act, 40 U.S.C. Sec. 276c, the contractor was required to file "certified payroll records" with the contracting agency (here, the Air Force). These records contain detailed information about each employee working on a particular project: the worker's name and address, social security number, job classification, hourly rate of pay, number of hours worked during the reporting period, wages and fringe benefits paid, and deductions taken out of the worker's wages.
The Air Force dеnied Recovery Fund's FOIA request for the certified payroll records for the Hickam Air Force Base Project, asserting that the information fell within FOIA's exemption for "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. Sec. 552(b)(4) ("Exemption 4"). Recovery Fund filed an administrative appeal, which was also denied. Recovery Fund then brought suit in district court to compel disclosure of the payroll records. The Air Force asserted a defense not only under Exemption 4, but also under Exemption 61 and Exemption 7(C) to FOIA.2 On cross-motions for summary judgment, the district court held that genuine issues of matеrial fact precluded summary judgment on the Air Force's Exemption 4 defense.
Finally, the district court granted pаrtial summary judgment for Recovery Fund on the Air Force's Exemption 7(C) defense. The district court did not reach the question of whether the payroll records were "compiled for law enforcement purposes" because it held that the Air Force did not show that the "balance of private versus public interests under the analysis of Exemption 6 was so close" that the slightly lighter burden of proof imposed on the Air Force by Exemption 7(C) "would tilt that balance in favor of non-disclosure." Id. at 1418.3
After the district court denied the Air Force's motion for reconsideration,
In No. 91-35076, Seattle Building and Construction Trades Council, AFL-CIO, and Rebound (collectively "Rebound") requested that the Department of Housing and Urban Development ("HUD") release copies of certified payroll records. These records were filed in connection with a housing rehabilitation project carried out by thе City of Seattle with assistance from HUD. The records were submitted by the City's electrical contractor. The City released the records after redacting all information that would identify individual workers, such as their names, addresses, and social security numbers. HUD informed Rebound that the identifying information had been properly redacted pursuant to Exemptions 6 and 7(C). The redaction was affirmed on administrative appeal.
Rebound filed suit in district court to compel disclosure of the certified payroll records with only social security numbers redacted. Rebound also sought a variety of other remedies, including an injunction ordering future relеase of similar records, declaratory relief, attorneys' fees, and the appointment of a special prosecutor pursuant to 5 U.S.C. Sec. 552(a)(4)(F). On cross-motions for summary judgment, the district court granted partial summary judgment for Rebound and rejected HUD's Exemption 6 and 7(C) defenses. The district court followed a similar line of analysis as the district court in Recovery Fund. The district court ordered HUD to produce the records sought by Rebound, with social security numbers redacted, and denied the other relief sought by Rebound. Both parties appeal.
II
We ordinarily review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court applied the correct substantive law. Tzung v. State Farm Fire & Casualty Co.,
III
We now turn to the merits. Exemption 6 requires that courts balance the public interests in disclosure against the privacy interests that would be harmed by disclosure. United States Dep't of Justice v. Reporters Committee for Freedom of the Press,
* We first сonsider the privacy interests implicated by the FOIA requests at issue. The requesters seek to procure not only a name and address list of workers, but a list that connects those names to precise information about each worker's occupational classification, wages, and wage deductions. It cannot be disputed that this information is normally considered private. In Horner, the District of Columbia Circuit held that a list revealing only the names and addresses of federal retirees constituted a "significant" invasion of privacy because the retirees would be attractive targets for mass marketers. Horner,
In the cases before us, the requesters seek a list of people engaged in the construction trade, broken into their particular occupational classification. Undoubtedly, such a list would be of interest to people interested in marketing goods and services to people working in the construction trades. As in Horner, there is a "substantial probability that the disclosure will lead to" the use of the list by marketers and a concomitant invasion of the workers' right to be let alone. See Horner,
The requesters here not only seek names and addresses, but also particularized information about wages. We agree with those circuits that have considered the issue that significant privacy interests are implicated by the release of this information. See Painting & Drywall Work Preservation Fund v. HUD,
The requesters argue that the workers' reasonable expectations that wage information will be kept confidential is weakened in this particular context because other federal and state laws compel disclosure of major aspects of the requested information. However, "[t]he privacy interest protected by Exemption 6 'encompass[es] the individual's control of information concerning his or her person.' An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form." United States Dep't of Defense, --- U.S. at ----,
Moreover, the requesters' argument ignores the facts. The Davis-Bacon Act requires wage scales on federally-funded construction projects to be posted in a "prominent and easily accessible place at the site of work." 40 U.S.C. Sec. 276a(a). The requesters, however, are not seeking disclosure of wage scales, but actual payroll information for individual workers. Sincе neither the hours worked by a particular individual, that individual's job classification, nor even the fact that an individual is working on a project is rendered public information by the Davis-Bacon Act, the requesters overestimate the intrusion into the workers' financial privacy worked by the posting requirement.
Recovery Fund also argues that the workers on the Hickam Air Force Base project have a diminished expectation of privacy because Hawaii's freedom of information statute makes certified payroll records for public works projects available for public inspection. Hawaii Rev.Stat. Sec. 92F-12(a)(9). Because construction workers usually work on a number of projects during any one year, Recovery Fund argues, some of their income information is already publicly available if they have worked on any state public works projects. Thus, the additional invasion of privacy that results from disclosing payroll information on federal construction contracts is minimal. The answer to this is quite simple: the payroll records that the labor organizations here seek remain private because they contain information entirely distinct from Hawaii state contract payroll records.
In sum, we conclude that workers on federally-funded construction projects have a substantial privacy interest in information tying their names and addresses to precise payroll figures.
B
Having concluded that substantial privacy interests would be implicated by fulfillment of the FOIA requests at issue, we now consider whether FOIA recognizes a public interest in disclosure that might outweigh the intrusion that such disclosure would bring about. FOIA only recognizes the public's interest in knowing "what their government is up to" and does not create an avenue to acquire information about other private parties held in the government's files. Reporters Committee,
The circuits disagree about the appropriateness of such "derivative use" arguments in analyses of the FOIA privacy exemptions. Compare Department of Veterans Affаirs,
The Supreme Court has avoided the issue. See United States Dep't of State v. Ray, --- U.S. ----, ---- - ----,
On balance, we hold that release of the information sought by the requesters would constitute a "clearly unwarranted invasion of personal privacy" and the payroll records are therefore exempt from disclosure under FOIA. The requesters here have less intrusive means of procuring the information they seek than having the government disgorge private information from its files. They may pass out fliers at the beginning or end of the workday to workers on federal contracts, providing a form for the employees to self-report the information the requesters nоw seek to procure through FOIA. They may post signs or advertisements soliciting information from workers about possible violations of the Davis-Bacon Act. Through any of these means, the requesters may procure the information they desire. Whether they seek to self-enforce the Davis-Bacon Act or to shed light on the government's enforcement of it, the government need not violate the privacy of these workers by disclosing unredacted payroll records.
We find the Sixth Circuit's discussion of privacy implications in an analogous situation instructive. In Heights Community Congress v. Veterans Admin.,
would subject a veteran, who is not himself suspected of any wrongdoing, to involuntary personal involvement in [plaintiff]'s investigation of [racial] steering. Even if [plaintiff] did not itself attempt to link addresses to specific veterans, any realtor or lender accused of steering by evidence compiled from individual VA loan reports could, if inclined to do sо, certainly seek to examine the reports and counter the inference of steering by interrogating the individual buyers of the identified property. Holding a person's privacy hostage in this fashion is contrary ... to the basic right in this nation simply to be left alone. Certainly nothing prevents [plaintiff] from publicly advertising its investigation and requesting any VA loan recipient who desires to cooperate with [plaintiff] to come forward if he so elects, or pursuing other less controversial avenues to obtain the information.
Id. at 530.
Finally, we note that the requesters already have a substantial amount of the information they seek. In each cаse, the government has agreed to provide the certified payroll records with names, addresses, and social security numbers redacted. Thus, the requesters can compare job classifications to pay rates to determine if employees are being paid the prevailing wage. We recognize that the redacted records would not permit the requesters to determine whether the government was discovering violations in which contractors misclassify workers in order to pay a less-than-prevailing wage or where contractors properly classify and compensate the worker on pаper but require him or her to pay a kickback to the contractor. We simply believe that, as a matter of law, the employees' privacy interests are not outweighed by the marginal additional usefulness that the names and addresses would serve in uncovering "what the government is up to."7 Disclosure would therefore be a "clearly unwarranted invasion of personal privacy" and the government was justified in withholding the names and addresses pursuant to Exemption 6 of FOIA.
IV
Because we hold that Exemption 6 justifies the government's action in providing redacted copies of certified payroll records requested by the labоr organizations, we need not reach the Exemption 7(C) issue nor Rebound's appeal concerning attorneys' fees and additional remedies. The judgments of the district courts below are REVERSED.
WILLIAM A. NORRIS, Circuit Judge, concurring:
I believe the critical question at issue is whether FOIA requires the government to release the payroll records with the individual employees' home addresses included. Plaintiffs want the addresses to enable them to contact the workers directly to check the accuracy of the records submitted to the government, and to determine whether the agencies are doing a satisfactory job in discovering reporting violations such аs job misclassifications and secret kickback arrangements.
I come down on the side of nondisclosure because I believe that the release of home addresses would constitute a "clearly unwarranted" privacy invasion, outweighing even the public's substantial interest in release of these records.1 The invasion of privacy that results from disclosure of one's home address is far more substantial than, say, the disclosure of one's phone number. In contrast to phone numbers, home addresses are not routinely available. Many people choose to list their addresses in the phone book, but many do not. Thе reason is simple: publishing your phone number may invite annoying phone calls, but publishing your address can lead to far more intrusive breaches of privacy, and even physical danger.2
Although I agree with the result reached by the majority, I have two concerns with the majority's analysis. First, I am troubled by the manner in which the majority evaluates the privacy interests at stake in this case. While I do not dispute that the workers have a significant privacy interest in their home addresses, I question the way the majority assesses the consequences of disclosure in reaching its conclusion that disclosure would invade "substantial" privacy interests, and thereby produce a "clearly unwarranted invasion of personal privacy." Majority Opinion at 1484, 1485.
The majority's evaluation of the privacy invasion rests, in large part, on the generic statement by the government that disclosure would produce a "barrage of mailings" that would seriously intrude upon the privacy of the construction workers. See Majority Opinion at 1483-84. The majority buys into this assumption even though the government has failed to produce any evidence to suggest that these construction workers constitute a targeted group who would be exploited by mass marketers. In my view, the government may not rely on mere conjecture in describing the extent of the privacy invasion that would result. It must show that there is a "substantial probability" that the information would be used in the intrusive manner that is being suggested. National Ass'n of Retired Fed. Employees v. Horner,
My second concern regards the majority's valuation of the public interest at stake. The Supreme Court recently reaffirmed the fundamental principle that " 'disclosure, not secrecy, is the dominant objective of [FOIA].' " United States Dep't of Defense v. FLRA, --- U.S. ----, ----,
The problem in the cases before us ... is that the additional step requires direct contact with the employees whose payroll records are being sought. Any additional public benefit the requesters might realize through those contacts is inextricably intertwined with the invasions of privaсy that those contacts will work.
Id. (emphasis added). The fact that the public benefits of disclosure may be "intertwined" with the privacy interests should in no way diminish the importance of the public interest asserted. The public interest inquiry and the privacy inquiry are two separate strands of the analysis: the strength of the public interest has no bearing on the strength of the privacy interest, nor does the privacy interest affect the weight of the public interest. To be sure, the two factors ultimately get balanced against one another, but they must be evaluated independently. To mix the two factors together before the balancing phasе unnecessarily confuses the analysis.
In short, the majority's adoption of a per se rule against considering derivative uses in weighing the public interest conflicts with FOIA's "strong presumption in favor of disclosure." Ray, --- U.S. at ----,
Notes
FOIA Exemption 6 applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(6)
"This section does not apply to matters that are records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(7)(C)
"Exemption 7(C) is more protective of privacy than Exemption 6: the former provision applies to any disclosure that 'could reasonably be expected to constitute' an invasion of privacy that is 'unwarranted,' while the latter bars any disclosure that 'would constitute' an invasion of privacy that is 'clearly unwarranted.' " United States Dep't of Defеnse v. FLRA, --- U.S. ----, ---- n. 6,
Requesters describe the Court's decision in United States Dep't of Defense, as predicated on the workers' decisions not to disclose their home addresses to their collective bargaining representative. --- U.S. at ----,
United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., Local 598 v. Dep't of the Army, Corps оf Engineers,
In an analysis cast into doubt by Reporters Committee, the court held that the purpose was proper under FOIA. Heights Community Congress,
The requesters cite Dobronski v. FCC,
I do not say, however, that the disclosure of home addresses would never be warrantеd. If the public interest is sufficiently strong, the balance may favor disclosure. But before a court authorizes the release of home addresses, it should first examine whether the proposed public benefit could be served just as well by disclosure of other identifying information. For instance, plaintiffs here may be able to accomplish their public monitoring purpose just as well (or very nearly so) by relying on the workers' telephone numbers, rather than their home addresses
For the same reason, telephone directory assistance normally will not provide callers with addresses for the telephone numbers the callers hаve requested
In the past three years, the Supreme Court has twice declined to adopt such a per se rule, see United States Dep't of Defense, --- U.S. ----,
This is particularly troubling in light of the majority's inclusion on the privacy side of the scales consideration of any derivative use to which the disclosed information might be put. See Majority Opinion at 1483 (disclosure might lead to a barrage of mailings by merchandisers). As Justice Scalia noted in his separate opinion in Ray, "derivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together (there is no plausible reason to allow it for one and bar it for the other)." --- U.S. at ----,