American Federation of Government Employees, AFL-CIO, Local 1923 v. U.S., Dept. of Health and Human Services

• Decision Date: 22 July 1983
• Docket Number: No. 82-2036,AFL-CI,LOCAL,82-2036
• Citation: 712 F.2d 931
• Parties: 113 L.R.R.M. (BNA) 3537 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,1923, Appellant, v. UNITED STATES of America, DEPARTMENT OF HEALTH AND HUMAN SERVICES; Richard S. Schweiker, Secretary, Department of Health and Human Services, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 931

712 F.2d 931

113 L.R.R.M. (BNA) 3537

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL

1923, Appellant,

v.

UNITED STATES of America, DEPARTMENT OF HEALTH AND HUMAN

SERVICES; Richard S. Schweiker, Secretary,

Department of Health and Human Services,

Appellees.

No. 82-2036.

United States Court of Appeals, Fourth Circuit.

Argued May 12, 1983.

Decided July 22, 1983.

Charles Lee Nutt, Baltimore, Md. (Clements & Nutt, Baltimore, Md., on brief), for appellant.

Elizabeth H. Trimble, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellees.

Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and TURK, ^* District Judge.

PER CURIAM:

Appellant union represents the approximately 20,000 bargaining unit employees of the Social Security Administration Headquarters in Baltimore, Maryland. Only 5,000 to 6,000 of the employees are members of the union. In order to communicate directly with all bargaining unit employees, and because respondents had sometimes frustrated the union's attempted communications through indirect, employer-controlled means, the union filed a demand for information, including the employees' home addresses, under the Freedom of Information Act, 5 U.S.C. § 552. The employer refused to release the addresses on the ground that to do so would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Appellant then instituted an action challenging the employer's refusal to supply the information in the United States District Court for the District of Maryland.

The District Court held a hearing on the parties' cross motions for summary judgment, and on the union's motion for injunctive relief. A union official testified that management had frustrated union attempts to communicate with employees by arbitrarily censoring the union's newsletter, which the employer was bound to distribute. The union official also testified as to other problems encountered by the union in its attempts to communicate directly with the employees. After hearing argument from counsel, the District Court entered judgment for respondents.

In evaluating the information sought for the purposes of § 552(b)(6), the court below was correct in balancing the employees' right to privacy against the public interest in disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). We agree that the balance of all factors favors nondisclosure. Employees have a strong privacy interest in their home addresses. Disclosure could subject the employees to an unchecked barrage of mailings and perhaps personal solicitations, for no effective restraints could be placed on the range of uses to which the information, once revealed, might be put. Further, even granting that collective bargaining is a matter of grave public concern, any benefits flowing from disclosure of the information sought would inure primarily to the union, in a proprietary sense, rather than to the public at large. Finally, as the District Court noted, alternative means of communication are available to the union, such as its bulletin board and indirect distribution through the employer. ¹ In addition, the union may bargain for the addresses when its next contract is negotiated, and counsel indicated, at oral argument, that this was its intention.

Further, the records sought are not of the type that must be disclosed under § 552(a)(3). Only "agency records" must be disclosed. Forsham v. Harris, 445 U.S. 169, 178 n. 8, 100 S.Ct. 978, 983 n. 8, 63 L.Ed.2d 293 (1980). The purpose of the Act is " 'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny ....' " Department of Air Force v. Rose, 425 U.S. at 361, 96 S.Ct. at 1599, quoting from Court of Appeals decision, 495 F.2d 261, 263 (2d Cir.1974). The term "agency records" includes only those created or compiled by an agency "in the course of doing its work ...." Forsham v. Califano, 587 F.2d 1128, 1136 (D.C.Cir.1978), aff'd sub nom Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980). The home addresses sought by appellant have nothing to do with the agency's "work," and disclosure thereof would shed no significant light on the agency's inner workings. ²

Accordingly, we conclude that the District Court did not err in dismissing the complaint. ³

AFFIRMED.

WINTER, Chief Judge, dissenting:

I agree with the majority that the formula for a proper decision of this case is the balancing of the employees' right to privacy against the public interest in disclosure. ¹ When I balance the employee's right to privacy against the public interest to disclosure in this case, I conclude that the balance tilts in favor of disclosure. I therefore respectfully dissent.

The right to privacy in one's home address is an interest of little value. We held in Robles v. Environmental Protection Agency, 484 F.2d 843 (4 Cir.1973), that while Exemption 6 of 5 U.S.C. § 552(b) encompassed the names and addresses of homeowners residing in dwellings where uranium tailings were used as fill dirt, the thrust of Exemption 6 was to protect things that "contain 'intimate details of a highly personal nature.' " Id. at 845. Thus, although protected to some extent, disclosure of the names and addresses should therefore be denied only when disclosure would constitute a " 'clearly unwarranted invasion of personal privacy.' " Id. Reliance was placed on Getman v. NLRB, 450 F.2d 670, 675 (D.C.Cir.1971). In Getman, law professors engaged in a labor voting study sought to compel the Board to provide them with the names and addresses of employees eligible to vote in certain elections. They wished to request such employees to accede to an interview. Their right to obtain the requested information was upheld, the court saying:

[A]lthough a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they would be willing to be interviewed in connection with the voting study, the loss of privacy resulting from this particular disclosure should be characterized as relatively minor.

Id. at 674-75 (footnote eliminated).

The common sense of the decisions in Robles and Getman is readily apparent. With rare exception,...