Alirez v. N.L.R.B., s. 80-1422

• Citation: 676 F.2d 423
• Decision Date: 23 April 1982
• Docket Number: 80-1471,Nos. 80-1422,s. 80-1422
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: 110 L.R.R.M. (BNA) 2267, 93 Lab.Cas. P 13,441, 8 Media L. Rep. 1517 Louis ALIREZ, Plaintiff-Appellee/Cross-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant/Cross-Appellee.

Page 423

676 F.2d 423

110 L.R.R.M. (BNA) 2267, 93 Lab.Cas. P 13,441,

8 Media L. Rep. 1517

Louis ALIREZ, Plaintiff-Appellee/Cross-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant/Cross-Appellee.

Nos. 80-1422, 80-1471.

United States Court of Appeals,

Tenth Circuit.

April 23, 1982.

Sander N. Karp of Karp, Goldstein & Stern, Denver, Colo., for plaintiff-appellee/cross-appellant.

Edward S. Dorsey, Washington, D. C. (Margery E. Lieber, Deputy Asst., Gen. Counsel for Special Litigation, Carol A. De Deo, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with him on the briefs), for defendant-appellant/cross-appellee.

Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This action was commenced under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, by Louis Alirez against the National Labor Relations Board (NLRB or Board).

Mr. Alirez earlier had filed an unfair labor practice charge with the Board against his former employer. The Board investigated the charge, determined that it was meritless, and refused to issue a complaint. Mr. Alirez then requested disclosure of any and all documents in NLRB files relating to the charge. The Board offered to provide him with copies of formal documents contained in the case file, as well as his personal affidavits, but denied his request for the remaining sixteen documents in the file, on the basis that they were exempt from disclosure under the provisions of 5 U.S.C. §§ 552(b)(5), (7) (A), (7)(C), and (7)(D). Fourteen of these documents are informant statements obtained by the Board in the course of its investigation or Board notes of interviews with informants. These fourteen documents reveal threats of physical violence and retaliation at work against fellow employees involved in Mr. Alirez' dispute with his employer, allegations of assaultive conduct on the part of Mr. Alirez, explicit charges of sexual deviancy on the part of another individual, and, in one instance, statements of an employee about his attitude towards unionization. The final two documents are an NLRB "regional agenda minute" and a bid sheet indicating thirty-nine instances in which ten employees were passed over for promotion.

Having exhausted his administrative appeals, Mr. Alirez filed suit in federal district court, under the FOIA, to compel disclosure of the sixteen documents. He subsequently withdrew his request for the "regional agenda minute," conceding that it was exempt under 5 U.S.C. § 552(b)(5). ¹ On cross-motions for summary judgment, the district court granted Mr. Alirez' motion and ordered the Board to disclose the remaining fifteen documents. The Board, however, was permitted to delete from the statements the name, address, and telephone number of any person other than Mr. Alirez. The court also denied Mr. Alirez' request for attorneys' fees.

The Board appeals from the district court's order requiring it to disclose the fifteen documents, arguing that they are exempt from disclosure under exemptions (7)(A), (7)(C), and (7)(D), and Mr. Alirez appeals from the district court's denial of his request for attorneys' fees. The fifteen documents have been delivered to this court under seal.

We first must decide whether the district court was correct in its determination that these documents are not exempt from disclosure under the FOIA. The basic policy of the FOIA is in favor of disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). The FOIA is to be broadly construed in favor of disclosure, id. at 366, 96 S.Ct. at 1601, and, unless requested material in the possession of a federal agency falls within one of the statutory exemptions structured to protect specified confidentiality and privacy interests, it must be made available on demand to any member of the general public. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978). These statutory exemptions are to be narrowly construed with all doubts resolved in favor of disclosure, Department of the Air Force v. Rose, 425 U.S. at 361-62, 96 S.Ct. at 1599; EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), and the federal agency bears the burden of justifying nondisclosure. 5 U.S.C. § 552(a)(4)(B); Campbell v. United States Civil Service Commission, 539 F.2d 58, 61 (10th Cir. 1976).

The exemption provisions relied upon by the Board to justify non-disclosure of the fifteen documents state:

(b) This section (5 U.S.C. 552, the FOIA) does not apply to matters that are-

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, ... (C) constitute an unwarranted invasion of personal privacy, (or) (D) disclose the identity of a confidential source ....

It is not disputed that the requested documents are "investigatory records compiled for law enforcement purposes" within the meaning of the statute. We first consider, then, whether these documents are privileged from disclosure under exemption (7)(C), on the ground that disclosure would "constitute an unwarranted invasion of personal privacy."

In holding that disclosure of these fifteen documents would not constitute an unwarranted invasion of privacy and that, hence, the documents were not exempt under (7)(C), the district court relied heavily on this court's decision in Poss v. NLRB, 565 F.2d 654 (10th Cir. 1977). That case is factually similar to the instant case. In Poss, the Board investigated an employee's charge, determined that it was meritless, refused to issue a complaint against the employer, and denied the employee's request for factual information in its files relating to the matter. The employee brought an FOIA action, and the district court ordered disclosure. The Board appealed on several bases, including an assertion that the information was exempt from disclosure under (7)(C). The requested information consisted of statements of co-workers and Board notes of interviews. We affirmed the district court's order to disclose the documents because the Board had failed to show how their disclosure would constitute an unwarranted invasion of privacy. On the record before us at that time, we held that the subject matter did not entail any invasion of privacy, because Poss' co-workers were simply relating what they knew about the termination of her employment. Id. at 658.

The district court in the instant case apparently has derived from Poss a rule that privacy interests are never in issue with respect to co-worker statements obtained by the Board in its investigation of an unfair labor practice charge. That is an overbroad reading of Poss. As the Court indicated in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the language and structure of exemption (7)(C) require the Board to make a specific evidentiary showing that relevant factors are present when asserting (7)(C) as a basis for non-disclosure. Id. at 223, 98 S.Ct. at 2317. The court, of course, must consider the evidence presented by the Board. The district court here abused its discretion by not giving sufficient consideration to the evidence presented by the Board to support its reliance on exemption (7)(C).

Exemption (7)(C) is analogous to exemption (6), which applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The language of exemption (7)(C) was proposed with the explanation that it was intended to "make clear that the protections in the sixth exemption for personal privacy also apply to disclosure under the seventh exemption." ²

In determining whether a requested document is privileged from disclosure under exemption (6), an individual's right of privacy must be weighed against preservation of the public's right to government information. If there is an important public interest in the disclosure of information and the invasion of privacy is not substantial, the private interest in protecting the disclosure must yield to the superior public interest. However, if the invasion of privacy is serious and there is little or no public interest involved, the information is exempt from disclosure. Campbell v. United States Civil Service Commission, 539 F.2d 58, 61-62 (10th Cir. 1976).

In our view, the seventh exemption calls for a similar balancing of competing interests. ³ The initial inquiry must be directed to determining whether there is a serious invasion of privacy. If there is not, the basic policy of the FOIA mandates disclosure. In view of this basic policy, a trivial invasion simply cannot be an unwarranted invasion. If a serious invasion...