International Broth. of Elec. Workers Local Union No. 5 v. U.S. Dept. of Housing and Urban Development

• Decision Date: 20 July 1988
• Docket Number: No. 87-3656,87-3656
• Citation: 852 F.2d 87
• Parties: 128 L.R.R.M. (BNA) 3110, 28 Wage & Hour Cas. (BN 1215, 57 USLW 2116, 109 Lab.Cas. P 35,086, 34 Cont.Cas.Fed. (CCH) 75,524 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 5 v. UNITED STATES DEPT. OF HOUSING AND URBAN DEVELOPMENT and Samuel R. Pierce. Appeal of U.S. DEPT. OF HOUSING AND URBAN DEVELOPMENT & Samuel R. Pierce.
• Court: U.S. Court of Appeals — Third Circuit

Page 87

852 F.2d 87

128 L.R.R.M. (BNA) 3110, 28 Wage & Hour Cas.

(BN 1215,

57 USLW 2116, 109 Lab.Cas. P 35,086,

34 Cont.Cas.Fed. (CCH) 75,524

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 5 v. UNITED STATES DEPT. OF HOUSING AND URBAN DEVELOPMENT and Samuel R. Pierce Appeal of U.S. DEPT. OF HOUSING AND URBAN DEVELOPMENT &amp Samuel R. Pierce.

No. 87-3656.

United States Court of Appeals Third Circuit.

Argued March 17, 1988.

Decided July 20, 1988.

J. Alan Johnson, U.S. Atty., Richard K. Willard, Asst. Atty. Gen., Leonard Schaitman, Christine R. Whittaker (argued), Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for appellant.

Betty Ora Grace Mesler (argued), Gatz, Cohen, Segal and Koerner, Pittsburgh, Pa., for appellee.

Terry R. Yellig, Sherman, Dunn, Cohen, Leifer & Counts, P.C., Washington, D.C., for amicus curiae International Broth. of Elec. Workers, AFL-CIO.

Before STAPLETON, MANSMANN, and HUNTER, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

In this case arising under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1982), the United States Department of Housing and Urban Development (HUD) appeals from a summary judgment requiring it to release to the International Brotherhood of Electrical Workers, Local Union No. 5 (Union), the names, addresses, and Social Security numbers of nonunion employees working for a federal contractor. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). Because we find that the public interest in disclosure is not clearly outweighed by the privacy interest in the names and addresses, but is clearly outweighed by the privacy interest in the Social Security numbers, we will affirm in part and reverse in part the judgment of the district court.

I.

The facts in this case are not disputed. The Davis-Bacon Act, 40 U.S.C. Sec. 276a et seq. (1982), requires 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. The Davis-Bacon Act is enforced in part through the Copeland Act, 40 U.S.C. Sec. 276c (1982), which requires federal contractors to submit weekly payroll records to the Government.

On November 19, 1985, the Union sent a written request to HUD's Pittsburgh office for copies of such payroll reports submitted to HUD by M & K Electrical Company (M & K), a nonunion subcontractor hired to perform work on a housing project that receives direct loan financing from HUD. The Union sought the payroll information to monitor M & K's compliance with the Davis-Bacon Act and HUD's enforcement of the Act.

On December 5, 1985, in response to the Union's request, HUD released the payroll records, which included the employees' work classifications, hours worked, rates of pay, and gross and net pay levels. HUD deleted, however, the employees' names, home addresses, and Social Security numbers, citing Exemption 6 to FOIA, 5 U.S.C. Sec. 552(b)(6) (1982).

The Union appealed the decision to withhold the names, addresses, and Social Security numbers to HUD's General Counsel, who affirmed the denial of the requested information. The Union then brought this action. Both parties moved for summary judgment. The court granted the Union's motion and denied HUD's motion. This appeal followed. Our scope of review of the district court's interpretation of Exemption 6 is plenary.

II.

FOIA requires federal agencies to make information in their possession available to the public unless the information falls under one of the enumerated exemptions, which are to be narrowly construed. United States Dep't of Justice v. Julian, --- U.S. ----, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988). Exemption 6 covers "personnel ... 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) (1982). There is no dispute that the names, addresses, and Social Security numbers contained in the payroll records are "files" within the meaning of Exemption 6. See United States Dep't of State v. Washington Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); United States Dep't of Navy v. FLRA, 840 F.2d 1131, 1135 (3d Cir.1988).

We recently summarized the appropriate analysis under Exemption 6 in Dep't of Navy, in which we upheld the release to a union for collective bargaining purposes of names and addresses of bargaining unit members employed by a federal agency. The analysis requires us to determine whether the information sought is subject to privacy protection and, if so, whether the invasion of privacy is "clearly unwarranted." This inquiry involves a balancing of the public interest served by disclosure against the harm resulting from the invasion of privacy. In striking this balance, the court must keep in mind that there is a presumption in favor of disclosure. 840 F.2d at 1135. In addition, the agency bears the burden of proving an exemption from the disclosure requirements. Committee on Masonic Homes of R.W. Grand Lodge v. NLRB, 556 F.2d 214, 218-20 (3d Cir.1977).

We consider first whether the Social Security numbers of M & K's employees fall under Exemption 6. The employees have a strong privacy interest in their Social Security numbers. Congress has recognized this privacy interest by making unlawful any denial of a right, benefit, or privilege by a government agency because of an individual's refusal to disclose his Social Security number. Privacy Act of 1974, Pub.L. 93-579, Sec. 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 U.S.C. Sec. 552a note (1982). Moreover, in its report supporting the adoption of this provision, the Senate Committee stated that 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." S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin.News 6916, 6943.

The Union argues that, unlike a government agency, it would not be able to make use of the Social Security numbers to invade the privacy of the employees because it does not have access to government records. Although the Union is certainly less likely than a government agency to be able to use the numbers to gain further information on the employees, it is not inconceivable that the Union could misuse this information. Moreover, once a number is public knowledge, it could wind up in anyone's hands.

Against this privacy interest, the Union has offered no public interest that would be furthered by the release of the Social Security numbers. Indeed, counsel for the Union conceded at oral argument that these numbers were not necessary to achieve any legitimate purpose. Faced with an identifiable privacy interest and no countervailing public interest, we must conclude that the release of the Social Security numbers would constitute a clearly unwarranted invasion of privacy and is therefore barred by Exemption 6.

The names and addresses present a more difficult issue, however. The release of the names and addresses implicates several privacy concerns. First, as this court recently reaffirmed, "individuals generally have a meaningful interest in the privacy of information concerning their homes which merits some protection." Dep't of Navy, 840 F.2d at 1136. 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." Id. 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 itself requires the posting of wage scales at the job site. 40 U.S.C. Sec. 276a(a). 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.

HUD argues further that the release of names in this case reveals that these workers have chosen to work for a nonunion employer. But the mere fact that an employee works for a nonunion employer does not imply that the employee does not favor unionization either at his workplace or in general. This case is thus unlike Masonic Homes, in which we upheld under Exemption 6 the NLRB's refusal to release to an employer union authorization cards. In Masonic Homes, the very purpose of the authorization cards was to indicate a preference for unionization; thus, disclosure necessarily would have infringed a right to a private choice.

On the other side of the balance, the Union asserts that the public interest in disclosure is to enable the Union to monitor M & K's compliance with, and HUD's enforcement of, the Davis-Bacon Act. The Supreme Court has stated that in balancing interests under Exemption 6, the basic public interest purpose of FOIA is "to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). Moreover, we have rejected the "crabbed view" that the public interest for Exemption 6 purposes is limited to an interest in the operation of federal agencies. See Dep't of Navy, 840 F.2d at 1136. In Dep't of Navy, we looked to Congress' expression of the public interest reflected in a statute, in that case the federal labor act. See id. at 1136-37.

In this case, Congress' expression of the public interest is found in the Davis-Bacon Act, which seeks to protect local wage standards by preventing contractors from competing for government construction contracts based on wages lower than those prevailing in the area of the project. See Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 773-74 & n. 25, 101 S.Ct. 1451, 1463, & n. 25 (...