Painting Industry of Hawaii Market Recovery Fund v. U.S. Dept. of Air Force

• Decision Date: 20 June 1994
• Docket Number: Nos. 90-16659,91-35076 and 91-35193,AFL-CIO,s. 90-16659
• Citation: 26 F.3d 1479
• Parties: , 128 Lab.Cas. P 33,106, 2 Wage & Hour Cas.2d (BNA) 202 PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Defendant-Appellant. SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL,; Rebound, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee. SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL,; Rebound, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1479

26 F.3d 1479

63 USLW 2012, 128 Lab.Cas. P 33,106,

2 Wage & Hour Cas.2d (BNA) 202

PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff-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Submission Withdrawn March 15, 1993.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 seek 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.

I

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 denied 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 6 ¹ and Exemption 7(C) to FOIA. ² On cross-motions for summary judgment, the district court held that genuine issues of material fact precluded summary judgment on the Air Force's Exemption 4 defense. 751 F.Supp. 1410, 1414-15. The district court granted partial summary judgment to Recovery Fund, holding that Exemption 6 did not justify nondisclosure of most of the information contained in the payroll records because "[t]he employees' modest privacy interest in preventing disclosure of such information when balanced against the significant public interests in monitoring compliance with the Davis-Bacon Act tips decidedly in favor of disclosure." Id. at 1417. The district court held that the employees' social security numbers were properly withheld under Exemption 6. Id. at 1418.

Finally, the district court granted partial 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, 756 F.Supp. 452, the Air Force withdrew its defense based on Exemption 4 and stipulated to the entry of final judgment in the district court. The Air Force offered to provide the payroll records to Recovery Fund with the names, addresses, and other personal identifiers of the workers redacted. The Air Force appeals the district court's grant of summary judgment in favor of Recovery Fund as to Exemptions 6 and 7(C).

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 the 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 release 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., 873 F.2d 1338, 1339-41 (9th Cir.1989). In this circuit, however, 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. Lewis v. IRS, 823 F.2d 375, 377-78 (9th Cir.1987); but see Petroleum Information Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (R.B. Ginsburg, J.) (applying "in FOIA cases the same standard of appellate review applicable generally to summary judgments").

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, 489 U.S. 749, 762, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774 (1989). We cannot limit our evaluation of the effects of disclosure to the requesting party's particular purpose in seeking disclosure. Id. at 771, 109 S.Ct. at 1480 ("[W]hether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made."). We must evaluate both the 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. See United States Dep't of Defense v. FLRA, --- U.S. ----, ----, 114 S.Ct. 1006, 1015-16, 127 L.Ed.2d 325 (1994) ("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.") (citations omitted); Reporters Committee, 489 U.S. at 771, 109 S.Ct. at 1481 ("[T]he rights of the two press [requesters seeking to procure criminal rap sheets] are no different from those that might be asserted by any other third party, such as a neighbor or prospective employer."); see also Department of the Air Force v. Rose, 425 U.S. 352, 380-81, 96 S.Ct. 1592, 1608, 48 L.Ed.2d 11 (1976) (when evaluating a request filed by law review editors for disclosure of Air Force Academy discipline reports from which names were redacted, court considered possibility that former classmates might be able to identify subjects of the reports even though the requesters would not be able to do so); National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 878 (D.C.Cir.1989) (considering use to which mass marketers would put list of federal retirees in evaluating employee association's request for name and address list), cert. denied, 494 U.S. 1078, 110...