Local Union 19 v. US Dept Veterans ( 1998 )

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
2-9-1998
Local Union 19 v. US Dept Veterans
Precedential or Non-Precedential:
Docket 97-1116,97-1293
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Filed February 9, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-1116 & 97-1293
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 19
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-04120)
Argued November 18, 1997
Before: SCIRICA and LEWIS, Circuit Judges
and ACKERMAN, District Judge*
(Filed February 9, 1998)
_________________________________________________________________
*The Honorable Harold A. Ackerman, United States District Judge for the
District of New Jersey, sitting by designation.
JOHN F. DALY, ESQUIRE (ARGUED)
United States Department of Justice
Civil Division, Appellate Staff,
Room 7124
10th and Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
LEONARD SCHAITMAN, ESQUIRE
United States Department of Justice
Civil Division, Appellate Staff,
Room 9152
601 D Street, N.W.
Washington, D.C. 20530-0001
JOAN K. GARNER, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorneys for Appellant
CHARLES T. JOYCE, ESQUIRE
(ARGUED)
Spear, Wilderman, Borish, Endy,
Spear & Runckel
230 South Broad Street, Suite 1400
Philadelphia, Pennsylvania 19102
Attorney for Appellee
TERRY R. YELLIG, ESQUIRE
Sherman, Dunn, Cohen, Leifer &
Yellig, P.C.
1125 Fifteenth Street, N.W.,
Suite 801
Washington, D.C. 20005
Attorney for Amicus Curiae
Appellee, Building and
Construction Trades Department,
AFL-CIO
2
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This case involves an interpretation of the Freedom of
Information Act, 5 U.S.C.A. S 552 (West 1996 & Supp.
1997). The issue on appeal is the continuing vitality of our
opinion in International Bhd. of Elec. Workers Local Union
No. 5 v. United States Dep't of Hous. and Urban Dev. , 852
F.2d 87 (3d Cir. 1988) ("IBEW"). In IBEW, we held the
Freedom of Information Act's S 552(b)(6) privacy exemption
could not prevent disclosure of certain wage related
information which the union used to measure compliance
with the Davis-Bacon Act, 40 U.S.C.A. SS 276a-276a-7
(West 1986 & Supp. 1997). The specific issue here requires
us to once again balance the public interest served by
disclosure against the harm resulting from the invasion of
privacy in light of intervening decisions from the Supreme
Court.
I.
A.
Plaintiff-appellee, the Sheet Metal Workers' International
Association, Local Union No. 19, monitors "whether federal
agencies are enforcing private contractors' compliance with
[the Davis-Bacon Act]." Sheet Metal Workers' Int'l Ass'n
Local Union No. 19 v. United States Dep't of Veterans
Affairs, No. 96-4120, 1997 WL 34681, at *1 (E.D. Pa. Jan.
28, 1997). "The Davis-Bacon Act requires that the wages of
work[ers] on a Government construction project shall be
``not less' than the ``minimum wages' specified in a schedule
furnished by the Secretary of Labor." United States v.
Binghamton Const. Co., 347 U.S. 171, 172, reh'g denied,
347 U.S. 940 (1954). Essentially, it provides "that all
laborers and mechanics working on federally funded
construction projects be paid not less than the prevailing
wage in the locality in which the work is performed." IBEW,
852 F.2d at 88.
3
"The Davis-Bacon Act is enforced in part through the
Copeland Act, 40 U.S.C. S 276c, which requires federal
contractors to submit weekly payrolls to the government."
Id. The Copeland Act authorizes the Secretary of Labor to
make "reasonable regulations for contractors and
subcontractors engaged in the construction, prosecution,
completion or repair of public buildings . . . including a
provision that each contractor and subcontractor shall
furnish weekly a statement with respect to wages paid each
employee during the preceding week." 40 U.S.C.A. S 276c
(West 1986).
Contractors' payrolls must contain: "the name, address,
and Social Security number of each such worker, his or her
correct classification, hourly rates of wages paid (including
rates of contributions or costs anticipated for bonafide
fringe benefits or cash equivalents thereof . . . ), daily and
weekly number of hours worked, deductions made and
actual wages paid." 26 C.F.R. S 5.5(a)(3)(I) (1997). The
public agency hiring the contractor must ensure
compliance with these regulations. See 26 C.F.R. S 5.6(a)(3)
("The federal agency shall cause such investigations to be
made as may be necessary to assure compliance with the
labor standards clauses required by S 5.5 and the
applicable statutes listed in S 5.1").
The union contends it uses this information (1) to
ascertain whether the contractor is inflating the numbers of
employees actually working on the job site; (2) to compare
the employees' listed job classifications with the work
actually performed on the job site; (3) to determine whether
the contractor is using the same employee for two different
classifications on the same job; (4) to check the consistency
over time of the rate of pay for a particular classification; (5)
to determine whether the employer is using the proper ratio
of mechanics to journeymen apprentices; and (6) to
determine if the apprentices are properly registered with the
State Director of Apprenticeship and Training, whether they
are working out of their classification, and whether they are
receiving the proper rate of pay. (See App. at 50-52 (Clagg
Aff. PP 10-12)).
4
B.
Boro Developers, Inc. is a construction company who
contracted with defendant-appellant, the United States
Department of Veterans Affairs. The Department of
Veterans Affairs hired Boro to assist in the renovation of
the Veterans Administration hospital in Wilmington,
Delaware.
On January 16, 1996, the union requested from the
Department of Veterans Affairs (1) copies of the certified
payrolls Boro submitted for the hospital renovation, (2)
copies of apprentice registration forms, and (3) "the
applicable Prevailing Wage determination established by the
Department of Labor" for the hospital renovation. (App. at
8 (Compl. Ex. A)).1 By letter dated February 20, 1996, the
Department of Veterans Affairs responded to the union's
request: "Due to privacy act considerations, names, Social
Security numbers, fringe benefits, etc. [will] be redacted."
(App. at 11 (Compl. Ex. B)).
The union renewed its request on March 6, 1996. (See
App. at 13 (Compl. Ex. C)). A formal appeal was filed on
March 20, 1996 through counsel, reiterating the union's
demand: "the [Department of Veterans Affairs] is entitled
under the FOIA only to redact Social Security numbers
. . . . All other information . . . including employees' names,
addresses, job classifications and pay rates, must be
provided in full." (App. at 16-17 (Compl. Ex. D)).
On May 3, 1996, the Department of Veterans Affairs
issued its final denial, relying primarily on SS 552(b)(6) and
552(b)(7)(C) of the Freedom of Information Act:
Some of the information contained on the records
you seek is personal in nature [S 552(b)(6)], and the
records themselves are considered to be law
_________________________________________________________________
1. "[A]pprentice registration forms show which employees of the
contractor have been registered as apprentices by the State." (App. at 50
(Clagg Aff. P 9)). The Prevailing Wage Determination is "a list of all
applicable pay rates for various job classifications . . . . [assessed] by
the
Department of Labor Wage and Hour Division after conducting a survey
of local private contractors to determine what the``prevailing rate' is."
(Id.
(Clagg Aff. P 7)).
5
enforcement records [S 552(b)(7)(C)]. The personal
information in the requested records includes the
record subjects' names and Social Security numbers,
their home addresses, sex and racial status, together
with a breakout of their payroll withholdings and net
pay. As records containing such personal information,
these records fall within the scope of records that are
subject to the aforementioned exemptions.
* * *
the wages paid for work performed, the rates and job
classifications of the payees should be available to the
public.
* * *
please understand that individual identifiers, such as
names, and Social Security numbers, addresses, sex,
race, payroll withholdings and net pay, will be
redacted.
(App. at 40-41(Compl. Ex. E)).
C.
On June 3, 1996, the union filed a complaint in the
United States District Court for the Eastern District of
Pennsylvania seeking disclosure under the Freedom of
Information Act. (See App. at 4-5 (Compl.P 13)). The
complaint requested, inter alia, (1) that the court order the
Department of Veterans Affairs to provide the requested
documents; (2) that, in the alternative, the Department of
Veterans Affairs furnish the court with the records for an in
camera inspection to determine if any exemptions apply;
and (3) that the court enter a declaratory judgment that the
Department of Veterans Affairs cannot rely on S 552(b)(6) as
authority for withholding the requested information. (App.
at 5-6 (Compl. Wherefore Cl.)).
The Department of Veterans Affairs moved for summary
judgment, arguing SS 552(b)(6) and 552(b)(7)(C) prohibit the
disclosure of the requested information. The unionfiled a
cross-motion for summary judgment. The district court
granted the union's cross-motion for summary judgment
and denied the Department of Veterans Affairs's motion.
6
The able district judge described his task as follows: "to
balance the privacy interest of the Boro employees in
nondisclosure of the payroll information against``the extent
to which disclosure would shed light on an agency's
performance of its statutory duties or otherwise let citizens
know what their government is up to.' " Sheet Metal
Workers', Local No. 19, 1997 WL 34681, at *4 (citation
omitted). Relying largely on our well reasoned opinion in
IBEW, the district court nonetheless recognized a string of
recent appellate decisions which questioned the rationale of
that decision:2
These cases, of course, cannot overrule IBEW. Only
the Supreme Court and the Third Circuit can overrule
that case, and neither court has done so expressly. The
position taken by the Second, Ninth, Tenth, and
District of Columbia circuits cannot bind this court.
* * *
The court recognizes that the case law in this area is
evolving as a result of Supreme Court decisions, and
that Courts of Appeals have taken a closer look at
employees' privacy interests in light of the Supreme
Court's discussion of the issue. This court, however, is
bound by the rulings of the Third Circuit until that
court changes its position or its decisions are overruled
by the Supreme Court. The court concludes that the
IBEW decision controls this case, has not been
overruled, and continues to be the law in this circuit.
The fact that the court has concluded that it is
bound by the rule set forth in IBEW does not mean
that the court agrees with the Third Circuit's balancing
_________________________________________________________________
2. See United States Dep't of Defense, et al. v. Federal Labor Relations
Auth., 510 U.S. 487 (1994); United States Dep't of Justice et al. v.
Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989);
Sheet Metal Workers Int'l Ass'n Local No. 9 v. United States Air Force, 63
F.3d 994 (10th Cir. 1995); Painting Indus. of Haw. Market Recovery Fund
v. United States Dep't of the Air Force, 26 F.3d 1479 (9th Cir. 1994);
Painting and Drywall Work Preservation Fund v. Department of Hous. and
Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (considering IBEW doubtful
authority); Hopkins v. United States Dep't of Hous. and Urban Dev., 929
F.2d 81 (2d Cir. 1991) (same).
7
of interests in that case, especially as it relates to
disclosure of the employees' names and home
addresses. The court finds considerable merit in the
position taken by the Second, Ninth, Tenth, and
District of Columbia circuits and suggests that the
Third Circuit consider using the facts of this case to
reexamine IBEW in light of these decisions.
Sheet Metal Workers', Local No. 19, 1997 WL 34681, at *6
& n.1 (citations omitted). The Department of Veterans
Affairs appealed.
II.
Generally, we apply a two-tiered test when reviewing an
order granting summary judgment in proceedings seeking
disclosure under the Freedom of Information Act:
The reviewing court must first decide whether the
district court had an adequate factual basis for its
determination.
* * *
[I]t must then decide whether that determination was
clearly erroneous. Under the clearly erroneous
standard, this Court may reverse only if the findings
are unsupported by substantial evidence, lack
adequate evidentiary support in the record, are against
the clear weight of the evidence or where the district
court has misapprehended the weight of the evidence.
The two tiered standard of review of the district court's
determination that a particular document is or is not
properly subject to exemption does not, of course,
preclude plenary review of issues of law.
McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir.
1993) (citations omitted).3
_________________________________________________________________
3. This standard does not receive uniform application among the courts
of appeals. See Sheet Metal Workers Int'l Assoc. Local No. 9 v. United
States Air Force, 63 F.3d 994, 997 (10th Cir. 1995) (recognizing "there
may be some disagreement among other courts as to the precise
standard of review of a grant of summary judgment in a FOIA case").
8
In this case, however, the district court based its grant of
summary judgment on our ruling in International Bhd. of
Elec. Workers Local Union No. 5 v. United States Dep't of
Hous. and Urban Dev., 852 F.2d 87 (3d Cir. 1988). In that
event, we exercise plenary review. McDonnell, 4 F.3d at
1242.
III.
A.
"The Freedom of Information Act was enacted to facilitate
public access to Government documents." Sheet Metal
Workers Int'l Assoc. Local No. 9 v. United States Air Force,
63 F.3d 994, 996 (10th Cir. 1995). See also Hopkins v.
United States Dep't of Housing and Urban Dev., 929 F.2d
81, 83 (2d Cir. 1991) (the Freedom of Information Act "was
enacted in 1966 to create a broad right of access to official
information") (citation omitted). There is a presumption in
favor of disclosure, and "FOIA expressly places the burden
``on the agency to sustain its action.' " United States Dep't of
Justice et al. v. Reporters Committee for Freedom of the
Press, et al., 489 U.S. 749, 755 (1988) (citations omitted).
See also United States Dep't of Defense et al. v. Federal
Labor Relations Auth., 510 U.S. 487, 494 (1994)
_________________________________________________________________
Compare Painting Indus. of Haw. Market Recovery Fund v. United States
Dep't of the Air Force, 26 F.3d 1479, 1482 (9th Cir. 1994) ("we apply a
two-step standard of review to FOIA cases. We determine whether the
district court had an adequate factual basis on which to make its
decision and, if so, review for clear error the district court's finding
that
the documents were exempt") (citation omitted), with, McDonnell, 4 F.3d
at 1241-42 ("summary judgment in an FOIA case``takes on a unique
configuration.' As a result, the familiar standard of appellate review
promulgated by Federal Rule of Civil Procedure 56(c) does not apply"),
and, Petroleum Info. Corp. v. United States Dep't of the Interior, 976
F.2d
1429, 1433 & n.3 (D.C. Cir. 1992) ("This circuit applies in FOIA cases
the same standard of appellate review applicable to generally to
summary judgments. The Ninth Circuit, we note, applies a clearly
erroneous standard to district court determinations on summary
judgment in FOIA cases") (citation omitted).
9
("disclosure, not secrecy, is the dominant objective of
FOIA") (citation omitted).
"Public access to government information is not, however,
``all encompassing.' " Sheet Metal Workers', Local No. 9, 63
F.3d at 996 (citation omitted). The act "reflects a general
philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language."
Dep't of Defense, 510 U.S. at 494 (citations omitted).
"Congress exempted nine categories of documents from
the FOIA's broad disclosure requirements." Reporters
Committee, 489 U.S. at 755. The two categories that are
relevant here, SS 552(b)(6) and (b)(7)(C), exclude from
disclosure requirements:
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy; and (7)
records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . (C)
could reasonably be expected to constitute an
unwarranted invasion of personal privacy.
5 U.S.C. S 552(b)(6), (b)(7)(C).
Resolution of a case under S 552(b)(6) "depends on a
discrete inquiry: whether the disclosure of [the requested
information] would constitute a clearly unwarranted
invasion of personal privacy of the bargaining unit
employees within the meaning of the FOIA." Dep't of
Defense, 510 U.S. at 495. As the Supreme Court held:
First, in evaluating whether a request for information
lies within the scope of a FOIA exemption . . . a court
must balance the public interest in disclosure against
the interest Congress intended the exemption to
protect.
Second, the only relevant ``public interest in
disclosure' to be weighed in this balance is the extent
to which disclosure would serve the ``core purpose of
the FOIA,' which is ``contributing significantly to public
understanding of the operations or activities of the
government.'
10
* * *
Third, whether an invasion of privacy is warranted
cannot turn on the purposes for which the request for
information is made. Because ``Congress clearly
intended' the FOIA ``to give any member of the public as
much right to disclosure as one with a special interest
in a particular document,' except in certain cases
involving claims of privilege, ``the identity of the
requesting party has no bearing on the merits of his or
her FOIA request.'
Id. at 495-96 (citations omitted).
With respect to the privacy interest protected:
the cases sometimes characterized as protecting
``privacy' have in fact involved at least two different
kinds of interests. One is the individual interest in
avoiding disclosure of personal matters, and another is
the interest in independence in making certain kinds of
important decisions . . . . both the common law and
the literal understandings of privacy encompass the
individual's control of information concerning his or
her person.
Reporters Committee, 489 U.S. at 762-63 (citations omitted).
See also Painting Indus., 26 F.3d at 1482 ("We cannot limit
our evaluation of the effects of disclosure to the requesting
party's particular purpose in seeking disclosure. We must
evaluate both public benefit and the potential invasion of
privacy by looking at the nature of the information
requested and the uses to which it could be put if released
to any member of the public"); Painting and Drywall Work
Preservation Fund, Inc. v. Dep't of Hous. and Urban Dev.,
936 F.2d 1300, 1302 (D.C. Cir. 1991) ("Reporters Committee
defines privacy as encompassing ``the individual's control of
information concerning his or her person.' That information
includes the prosaic . . . as well as the intimate and
potentially embarrassing").
Section 552(b)(7)(C) "provides greater protection from
disclosure than exemption 6." Sheet Metal Workers', Local
No. 9, 63 F.3d at 996 (citation omitted). See also Dep't of
Defense, 510 U.S. at 496 n.6 ("Reporters Committee
11
provides the same guidance in making this identification in
Exemption 7(C) and Exemption 6 cases"); Reporters
Committee, 489 U.S. at 756 ("the standard for evaluating a
threatened invasion of privacy interests resulting from the
disclosure of records compiled for law enforcement
purposes is somewhat broader than the standard
applicable to personnel, medical, and similar files");
Hopkins, 929 F.2d at 87 n.5 ("While Reporters Committee
dealt with Exemption 7(C), its teachings apply to the
analogous provisions of Exemption 6 as well") (citation
omitted).
Because S 552(b)(7)(C) provides greater protection, our
analysis of S 552(b)(6) obviates the need to examine the
Department of Veterans Affairs's S 552(b)(7)(C) argument.
See Sheet Metal Workers', Local No. 9, 63 F.3d at 998-99
("Because we hold that exemption 6 protects the
information sought from disclosure, we need not address
whether the more protective provisions of exemption 7(C)
would also prevent disclosure of that information"); Painting
Indus., 26 F.3d at 1486 ("Because we hold that Exemption
6 justifies the government's action in providing redacted
copies of certified payroll records requested by the labor
organizations, we need not reach the Exception 7(C) issue").
B.
1.
At present, International Bhd. of Elec. Workers Local
Union No. 5 v. United States Dep't of Hous. and Urban Dev.,
852 F.2d 87 (3d Cir. 1988), provides the rule of decision in
this circuit. In IBEW, the union asked the Department of
Housing and Urban Development to release the names,
addresses, and Social Security numbers of non-union
employees working for a federal HUD contractor. HUD
furnished the payroll records, which included the
employees' work classifications, hours worked, rates of pay,
and gross and net pay levels. But citing the S 552(b)(6)
privacy exemption, HUD deleted the employees' names,
home addresses, and Social Security numbers. The district
court granted summary judgment to the union, compelling
HUD to furnish this information.
12
We described the appropriate appellate inquiry as follows:
"to determine whether the information sought is subject to
privacy protection and, if so, whether the invasion of
privacy is ``clearly warranted.' This inquiry involves a
balancing of public interest served by disclosure against the
harm resulting from the invasion of privacy." IBEW, 852
F.2d at 89.
With respect to the Social Security numbers, we found a
strong privacy interest: "the extensive use of Social Security
numbers as universal identifiers in both the public and
private sectors is one of the most serious manifestations of
privacy concerns in the nation." Id. (citations omitted). We
failed to discover any countervailing public interest
justifying their release: "the Union has offered no public
interest that would be furthered by the release of the Social
Security numbers . . . . Faced with an identifiable privacy
interest, we must conclude that the release of the Social
Security numbers would constitute a clearly warranted
invasion of privacy and is therefore barred by exemption 6."
Id.
But release of the names and addresses, we thought,
implicated different privacy concerns:
First . . . individuals generally have a meaningful
interest in the privacy of information concerning their
homes which merits some protection. In particular,
individuals have some privacy interest in their home
addresses, although the invasion of privacy effected by
such disclosure is not as serious as it would be by the
disclosure of more personal information. Second, the
employees have a privacy interest in their salaries. This
interest is not as great for employees of federal
contractors as for other employees, however, since the
Davis Bacon Act requires the posting of wage scales at
the job site. Although it is true that the posted wage
scales link wages with positions rather than names,
thereby preserving some degree of privacy in salary
levels, the posting nevertheless reduces the workers
reasonable expectation of privacy in their salaries.
Id. (citation omitted).
13
We found the union's ability to monitor a contractor's
compliance with -- and the awarding agencys' enforcement
of -- the Davis-Bacon Act a sufficiently strong
countervailing public interest to warrant disclosure.
[I]f the release of names and addresses of employees of
government contractors makes it more likely that
contractors will abide by the Act's requirements, the
release of the information is in the public interest.
Although the redacted wage reports would in some
cases enable the Union to detect violations of the
Davis-Bacon Act, they provide no means for auditing
the representations of the contractor. If the contractor
misrepresents his weekly wage information, the only
way to determine if the Davis-Bacon act is being
violated is to contact the contractor's employees and to
compare their responses to those given by the
contractor. We conclude, therefore, that the release of
the names and addresses would facilitate the Union's
investigation of possible Davis-Bacon Act violations,
and thereby would further the public interest.
* * *
[T]he mere fact that federal agencies are directly
responsible for enforcing the Davis-Bacon Act does not
mean that the Union has no role to play in furthering
the public interest. If enforcement of the Act is in the
public interest, then more effective enforcement of the
Act is also in the public interest.
* * *
Moreover, the Union's interest in monitoring HUD's
enforcement of the Davis Bacon Act is exactly the kind
of public interest Congress intended FOIA to facilitate.
* * *
The Union need not show that the information it seeks
will in fact prove useful . . . . the fact that the Union
has a proprietary interest in protecting its wages does
not diminish the public interest in the use of the
names and addresses to enhance Davis-Bacon Act
enforcement. In addition, we note that HUD has
14
neither offered an argument nor presented evidence
that the Union seeks the information only as a
subterfuge to harass nonunion members or to solicit
new membership. Absent such a challenge, we must
accept the Union's stated purpose in seeking the
names and addresses.
Id. at 90-92 (citations and internal quotations omitted).
2.
Subsequent to our decision in IBEW, the United States
Supreme Court decided two cases which attached more
significance to the privacy interests of employees, United
States Dep't of Justice et al. v. Reporters Committee For
Freedom of the Press, 489 U.S. 749 (1989), and United
States Dep't of Defense, et al. v. Federal Labor Relations
Auth., 510 U.S. 487 (1994). In Reporters Committee, a news
correspondent and the Reporters Committee for Freedom of
the Press unsuccessfully requested "rap sheets" --
documents containing descriptive information as well as a
history of arrests, charges, convictions, and incarcerations
-- from the Federal Bureau of Investigation. Finding the
privacy interests of private citizens with rap sheets
outweighed any public interest served by disclosure, the
Supreme Court concluded S 552(b)(7)(C) allowed the FBI to
withhold the requested information:
The privacy interest in maintaining the practical
obscurity of rap-sheet information will always be high.
When the subject of such rap sheet is a private citizen
and when the information is in the Government's
control as a compilation, rather than as a record of
``what the Government is up to,' the privacy interest
protected by Exemption 7(C) is in fact at its apex while
the FOIA based public interest in disclosure is at its
nadir. Such a disparity on the scales of justice holds
for a class of cases without regard to individual
circumstances; the standard virtues of bright line rules
are thus present, and the difficulties attendant to ad
hoc adjudication may be avoided. Accordingly, we hold
as a categorical matter that a third party's request for
law enforcement records or information about a private
15
citizen can reasonably be expected to invade that
citizen's privacy, and that when the request seeks``no
official information' about a government agency, but
merely records that the Government happens to be
storing, the invasion of privacy is ``unwarranted.'
Reporters Committee, 489 U.S. at 780.
In Dep't of Defense, the Supreme Court decided "whether
disclosure of the home addresses of federal civil service
employees by their employing agency pursuant to a request
made by the employees' collective bargaining representative
under the Federal Service Labor Management Relations
Statute . . . would constitute a clearly unwarranted
invasion of the employees' personal privacy." Dep't of
Defense, 510 U.S. at 489. The Supreme Court characterized
the public interest in disclosure of the addresses as
"negligible": "Disclosure of the addresses might allow the
unions to communicate more effectively with employees,
but it would not appreciably further the citizens right to be
informed about what their government is up to. Indeed,
such disclosure would reveal little or nothing about the
employing agencies or their activities." Id. at 497.
The employees' privacy interests in the non-disclosure of
their home addresses, however, caused greater concern:
Because a very slight privacy interest would suffice to
outweigh the relevant public interest, we need not be
exact in our quantification of the privacy interest. It is
enough for present purposes to observe that the
employees' interest in nondisclosure is not
insubstantial.
* * *
Whatever the reason that these employees have chosen
not to become members of the union or to provide the
union with their addresses, however, it is clear that
they have some non trivial privacy interest in
nondisclosure, and in avoiding the influx of union
related mail, and, perhaps, union related telephone
calls or visits, that would follow disclosure.
Many people simply do not want to be disturbed at
home by work related matters. Employees can lessen
16
the chance of such unwanted contacts by not revealing
their addresses to their exclusive representative.
Even if the direct union /employee communication
facilitated by the disclosure of home addresses were
limited to mailings, this does not lessen the interest
that individuals have in preventing at least some
unsolicited, unwanted mail from reaching them at their
homes. We are reluctant to disparage the privacy of the
home, which is accorded special consideration in our
Constitution, laws, and traditions. Moreover, when we
consider that other parties, such as commercial
advertisers and solicitors, must have the same access
under FOIA as the unions to the employee address lists
sought in this case it is clear that the individual
privacy interest that would be protected by
nondisclosure is far from insignificant.
Id. at 500-01.
Reporters Committee and Dep't of Defense demonstrate
both an increased appreciation for employees' privacy and
a concomitant decrease in the belief that disclosure of
personal information for the purpose of monitoring Davis-
Bacon Act compliance serves a public interest.
3.
Courts of appeals decisions following Reporters Committee
and Dep't of Defense express the same view with respect to
the relevant private and public interests. In Sheet Metal
Workers Int'l Assoc. Local No. 9 v. United States Air Force,
63 F.3d 994 (10th Cir. 1995), the Court of Appeals for the
Tenth Circuit absolved the United States Air Force from an
obligation to release individual names with certified payrolls
and apprentice registration lists.
[T]hree circuits have held that employees of private
contractors performing federal construction projects
have a substantial privacy interest in personalfinancial
information with personal identifiers linking the
individual to the financial information. They have
further held that that interest outweighs any
recognized public interest in the disclosure of such
information. Whether viewed as relevant to the
17
magnitude of the privacy interest at issue, or to the
appropriate balance between that interest and the
public interest in disclosure, we see no principled
distinction between names alone as personal
identifiers, or names and addresses. Either one
provides the critical connection between personal
information and the individual to whom that
information relates.
Id. at 998.
Painting Indus. of Haw. Market Recovery Fund v. United
States Dep't of Air Force, 26 F.3d 1479 (9th Cir. 1994)
considered similar information private:
In the cases before us, 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 working in
the construction trades . . . . [T]here 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.
* * *
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.
Id. at 1483-85 (citations omitted).
Painting and Drywall Work Preservation Fund, Inc. v.
Department of Hous. and Urban Dev., 936 F.2d 1300 (D.C.
Cir. 1991) reached a similar result with respect to a
Freedom of Information Act request to HUD to supply
certified payrolls. Although HUD supplied the records, it
invoked S 552(b)(6) and withheld names, Social Security
numbers, and home addresses. The Court of Appeals for
the District of Columbia Circuit found disclosure would
invade the employees' privacy, contravening the purpose of
the Freedom of Information Act: "If we were tofind that the
Fund is entitled to receive the information sought, the
workers would experience a significant diminution in their
18
expectations of privacy because that same information
would also have to be provided, for example, to creditors,
salesmen, and union organizers." Id. at 1303 (citation
omitted). The possibility of this intrusion outweighed any
public interest in disclosure: "As information that might
reveal the failure of contractors to comply with relevant
laws does not in itself cast light on what HUD is up to, we
can find no obvious public interest in its disclosure that is
relevant to this analysis." Id. (citation omitted).
In Hopkins v. United States Dep't of Hous. and Urban
Dev., 929 F.2d 81 (2d Cir. 1991) the union requested
certified payroll records from HUD to monitor Davis-Bacon
Act compliance. Relying on S 552(b)(6), HUD deleted all
employee names, addresses, and Social Security numbers.
Siding with HUD, the Court of Appeals for the Second
Circuit found "individual private employees have a
significant privacy interest in avoiding disclosure of their
names and addresses, particularly where, as here, the
names and addresses would be coupled with personal
financial information." Id. at 87 (citations omitted). The
court ultimately considered disclosure unwarranted:
disclosure of the names and addresses sought by
appellant would shed no light on HUD's performance in
enforcing the prevailing wage laws. Rather, disclosure
of this information would serve the public interest only
insofar as it would allow the Union to contact
individual employees, who may then dispute the
accuracy of the data reflected in the records, and so
reveal violations of the prevailing wage laws that HUD,
through proper diligence, should have detected. Were
we to compel disclosure of personal information with so
attenuated a relationship to governmental activity,
however, we would open the door to disclosure of
virtually all personal information, thereby eviscerating
the FOIA privacy exemptions.
Id. at 88 (citations omitted). According to Hopkins, the
public interest served by disclosure was not outweighed
by the employees' privacy interests "in controlling
dissemination of their names, addresses and wage
information. Indeed, the likelihood that the union would
19
use the requested identifying information to contact
employees at their homes dramatically increases the
already significant threat to the employees privacy interests
that disclosure of this information would entail." Id.
(citation omitted).
C.
1.
After considering the views expressed by the Supreme
Court in Reporters Committee and Dep't of Defense and
reviewing the recent decisions from other courts of appeals,
we believe we should modify our decision in IBEW.
Generally, "a panel of this court is bound by, and lacks
authority to overrule, a published decision of a prior panel."
Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996)
(citations omitted).4 Nonetheless, "a panel may reevaluate a
precedent in light of intervening authority and amendments
to statutes or regulations. Our sister circuits abide by that
self-same principle." Id. (citing, inter alia, Williams v.
Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.)("An existing
panel decision may be undermined by controlling authority,
subsequently announced, such as an opinion of the
Supreme Court, an en banc opinion of the circuit court, or
a statutory overruling"), cert. denied, 116 S. Ct. 51 (1995)).
See also Planned Parenthood of S.E. Pa. v. Casey, 947 F.2d
682, 698 (3d Cir. 1991) ("a change [by the Supreme Court]
in the legal test or standard governing a particular area is
a change binding on lower courts that makes results
reached under a repudiated legal standard no longer
binding"), aff'd in part, rev'd in part, 505 U.S. 833 (1992).
Although the intervening decisions from the Supreme
Court in Reporters Committee and Dep't of Defense do not
answer the precise issue presented here, their reasoning
_________________________________________________________________
4. See Third Circuit I.O.P. 9.1 ("It is the tradition of this court that
the
holding of a panel in a reported opinion is binding on subsequent
panels. Thus, no subsequent panel overrules the holding in a published
opinion of a previous panel. Court in banc consideration is required to
do so").
20
and holdings clearly counsel re-examination of our
reasoning and holdings in IBEW.5
2.
The union contends there is a strong public interest in
monitoring agency enforcement of the prevailing wage law
because the information sought contributes significantly to
public understanding of the operations or activities of the
government. Congress, the union argues, enacted both the
Davis-Bacon Act and the Copeland Act to facilitate
regulation of contractors. According to the union, the
records requested would make it easier to rectify any
mistake or omission that government agencies might make
during such enforcement activities. Redacted payrolls, the
union complains, require blind acceptance of the
contractor's unverifiable reports.
Furthermore, the union characterizes the employees'
privacy interest as insignificant because (1) the addresses
are available from other public sources; (2) the employees'
wage scales are posted publicly at the job site; and (3) the
employees received no promises of confidentiality with
respect to the requested data.
a.
We believe the union overestimates the public interest to
be served by disclosure. "[T]he only relevant public interest
in disclosure to be weighed . . . is the extent to which
disclosure would serve the core purpose of the FOIA, which
is contributing significantly to public understanding of the
operations or activities of the government." Dep't of
Defense, 510 U.S. at 495 (citations omitted). The release of
names, addresses, and similar "private" information reveals
little, if anything, about the operations of the Department of
_________________________________________________________________
5. We are not alone in recognizing that the conclusion reached in IBEW
has been superseded by Supreme Court authority. See Painting and
Drywall, 936 F.2d at 1303 (IBEW "predated Reporters Committee and is
therefore of ``doubtful authority' ") (citation omitted); Hopkins, 929 F.2d
at
87 (IBEW "[w]as decided prior to Reporters Committee . . . and [is] of
doubtful authority in light of that opinion").
21
Veterans Affairs. See id. at 497 ("Disclosure of the
addresses . . . would not appreciably further the citizens'
right to be informed about what their government is up to.
Indeed, such disclosure would reveal little or nothing about
the employing agencies or their activities"); Painting Indus.,
26 F.3d at 1486 (referring to "the marginal additional
usefulness that the names and addresses would serve in
uncovering ``what the government is up to' "); Painting and
Drywall, 936 F.2d at 1303 ("As information that might
reveal the failure of contractors to comply with relevant
laws does not in itself cast light on what HUD is up to, we
can find no obvious public interest in its disclosure that is
relevant to this analysis"); Hopkins, 929 F.2d at 88
("disclosure of the names and addresses sought by
appellant would shed no light on HUD's performance in
enforcing prevailing wage laws . . . . [but] would serve the
public interest only insofar as it would allow the Union to
contact individual employees").
It would appear that since our decision in IBEW nine
years ago, the Supreme Court has refined and reformulated
the applicable standard measuring the "core purpose" of
the Freedom of Information Act, namely contributing
significantly to public understanding of the operations or
activities of government. After the decisions in Reporters
Committee and Department of Defense, no court of appeals
has given much weight to the monitoring function. We are
compelled to do likewise. In a broad sense of course, the
public has an interest in whether a federal agency fairly
and adequately enforces prevailing wage laws. See Hopkins,
929 F.2d at 88 ("While assertions of public interest in
``monitoring' government operations ``have not been viewed
favorably by the courts,' we accept this interest as within
the ambit of public interest recognized in Reporters
Committee") (citations omitted). But even assuming
"monitoring" government operations, to some degree falls
within the scope of public interest enunciated in Reporters
Committee, in this case, providing the requested
information -- the names and addresses of the individual
workers -- would not enhance agency enforcement of
prevailing wage laws.
Some Davis-Bacon Act violations appear clearly on the
face of the payroll records regardless whether names are
22
shown, e.g., the payment of a properly classified worker at
a lower rate than the prevailing rate for their classification.
To insure compliance, the union need only compare job
classifications to pay rates to determine if the contractor
pays its employees the prevailing wage. Furthermore, other
violations remain undetected irrespective whether names
appear, e.g., (1) the improper classification of a worker
which results in payment at a lower than prevailing rate;
and (2) the proper classification and compensation of a
worker who then pays the contractor a "kick-back."
Divulging names and addresses will have no beneficial
effect on the union's ability to detect these violations.
Moreover, the ability of the union to determine whether
private contractors pay their workers prevailing wages does
not mean that unlimited disclosure of payroll records is in
the public interest. See Hopkins, 929 F.2d at 88 ("whatever
public interest there may be in knowing whether private
parties are violating the law is not the sort of public interest
advanced by the FOIA, and has no weight in Exemption 6
balancing"). We are reluctant to overstate the public
interest served by disclosure in light of diminishing
importance attributed to the monitoring function and the
unproven ability of the requested information to assist in
the enforcement of prevailing wage laws. Disclosure will not
contribute significantly to the public's understanding of
government activities.
We also believe the union enjoys alternate, less intrusive,
methods by which it may collect the desired information
including, but not limited to, (1) dispensing fliers to workers
as they arrive and leave job sites or posting signs or
advertisements designed to solicit information from workers
about possible wage law violations, and (2) using existing
information to compare job classifications with pay rates.
See Painting Indus., 26 F.3d at 1485 ("The requesters here
have less intrusive means of procuring the information they
seek than having the government disgorge private
information from its files"); Painting and Drywall, 936 F.2d
at 1303 ("the Fund has an alternative means of access to
current workers -- face to face conversation") (citation
omitted).
23
b.
Against a weak public interest in disclosure, we weigh the
private interest of employees in non-disclosure of their
names and addresses. We begin by noting that under the
more recent standards articulated by the Supreme Court in
Reporters Committee and Dep't of Defense, our opinion in
IBEW may have underestimated the importance of
employees' privacy interests violated by the dissemination
of this information. Recent appellate decisions have also
underscored the substantiality of that interest and afforded
it greater weight in the balancing process.
Proliferation of information about private citizens
implicates neither the spirit nor the purpose of the Freedom
of Information Act. See Reporters Committee, 489 U.S. at
765-66 ("[D]isclosure of records regarding private citizens,
identifiable by name, is not what the framers of the FOIA
had in mind . . . . provisions, for deletion of identifying
references . . . reflect a congressional understanding that
disclosure of records containing personal details about
private citizens can infringe significant privacy interests");
Painting and Drywall, 936 F.2d at 1303 ("The dissemination
of this sort of information about private citizens is not what
the framers of the FOIA had in mind") (citation omitted);
Hopkins, 929 F.2d at 88 ("Were we to compel disclosure of
personal information with so attenuated a relationship to
governmental activity, however, we would open the door to
disclosure of virtually all personal information, thereby
eviscerating the FOIA privacy exemptions").
We recognize the Supreme Court described the interest of
bargaining unit employees in non-disclosure of their home
addresses only as "not insubstantial." Dep't of Defense, 510
U.S. at 500. Nonetheless, even a slight privacy interest will
tip the scales in favor of non-disclosure. See id. ("Because
a very slight privacy interest would suffice to outweigh the
relevant public interest, we need not be exact in our
quantification of the privacy interest").
The significant privacy concerns attached to the home
and employees' interest in avoiding a barrage of unsolicited
contact weighs heavily in our consideration. See id. at 501
("[employees] have some non-trivial privacy interest in
24
nondisclosure, and in avoiding the influx of union-related
mail, and, perhaps, union-related telephone calls or visits,
that would follow disclosure . . . . We are reluctant to
disparage the privacy of the home, which is accorded
special consideration in our Constitution, laws, and
traditions") (citations omitted) (emphasis deleted); Hopkins,
929 F.2d at 88 ("the likelihood that the Union would use
the requested identifying information to contact employees
at their homes dramatically increases the already
significant threat to the employees' privacy interests that
disclosure of this information would entail").
At the same time, we find unconvincing the union's
argument that employees have waived their privacy rights
because their addresses are available from other public
sources and are posted publicly at the job site.
It is true that home addresses often are publicly
available through sources such as telephone directories
and voter registration lists, but in an organized society,
there are few facts that are not at one time or another
divulged to another. The privacy interest protected by
Exemption 6 encompasses the individuals' 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 forum.
Dep't of Defense, 510 U.S. at 500.
Once the union receives this information, there is no bar
to others having unlimited access to it. See id. at 496
("Congress clearly intended to give any member of the
public as much right to disclosure as one with a special
interest in a particular document . . . the identity of the
requesting party has no bearing on the merits of his or her
FOIA request") (citation omitted). It is possible that the
information requested may be misappropriated by
marketers, creditors, solicitors, and commercial advertisers,
eroding the employees' expectation of privacy. See id. at
501 ("when we consider that other parties, such as
commercial advertisers and solicitors, must have the same
access under FOIA as the unions to the employee address
25
lists . . . it is clear that the individual privacy interest that
would be protected by nondisclosure is far from
insignificant"); Painting Indus., 26 F.3d at 1483 ("there is a
substantial probability that disclosure will lead to the use
of the list by marketers and a concomitant invasion of the
workers' right to be let alone"); Painting and Drywall, 936
F.2d at 1303 (if "we were to find that the Fund is entitled
to receive the information sought, the workers would
experience a significant diminution in their expectations of
privacy because that same information would also have to
be provided, for example, to creditors, salesmen, and union
organizers"). The prospect of this unwarranted intrusion
counsels against disclosure.
IV.
The privacy interest of employees in the non-disclosure of
their names and addresses substantially outweighs the
slight public interest put forth by the union. Dissemination
of the requested data to the union would ultimately result
in an unwarranted invasion of personal privacy. To the
extent that releasing this information serves a public
interest, it is too attenuated to warrant a contrary result.
Any other conclusion would be at odds with the core
purpose of the Freedom of Information Act, namely a
significant contribution to public understanding of the
operations or activities of the government.
The Department of Veterans Affairs may redact the
names, Social Security numbers, and addresses of Boro
employees from the information requested by the union.
Accordingly, we will reverse the judgment of the district
court and remand with directions to enter judgment in
favor of the Department of Veterans Affairs.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
26