L & C Marine Transport, Ltd. v. U.S., 83-8328

• Decision Date: 04 September 1984
• Docket Number: No. 83-8328,83-8328
• Citation: 740 F.2d 919
• Parties: 11 O.S.H. Cas.(BNA) 2231, 1984-1985 O.S.H.D. ( 27,036 L & C MARINE TRANSPORT, LTD., Oswego Latex Carrier Corp., and the Firestone Tire & Rubber Co., Plaintiffs-Appellees, v. UNITED STATES of America, Dept. of Labor, Occupational Safety and Health Administration, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 919

740 F.2d 919

11 O.S.H. Cas.(BNA) 2231, 1984-1985 O.S.H.D. ( 27,036

L & C MARINE TRANSPORT, LTD., Oswego Latex Carrier Corp. and the Firestone Tire & Rubber Co., Plaintiffs-Appellees, v. UNITED STATES of America, Dept. of Labor, Occupational Safety and Health Administration, Defendants-Appellants.

No. 83-8328.

United States Court of Appeals Eleventh Circuit.

Sept. 4, 1984.

G.R. Smith, Asst. U.S. Atty., Savannah, Ga., for defendants-appellants.

Richard T. Galgay, Sofia P. Peters, Washington, D.C., for Dept. of Labor.

Leonard Schaitman, Jenny Sternbach, Civil Division, Dept. of Justice, Washington, D.C., for U.S.

John Hughes Cooper, Charleston, S.C., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before RONEY, FAY and CLARK, Circuit Judges.

CLARK, Circuit Judge:

In this case, L & C Marine Transport, Oswego Latex Carrier Corp. and Firestone Tire & Rubber Co., plaintiffs-appellees, sued to compel the disclosure of names and other identifying information pertaining to individuals interviewed by the Occupational Safety and Health Administration (OSHA), defendant-appellant. L & C previously sought disclosure of an OSHA accident investigation file under the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 et seq. OSHA released most of the file but deleted the names, addresses and other identifying information regarding employee-witnesses to the accident. OSHA argued that this information was free from disclosure under FOIA exemptions, Sec. 552(b)(7)(C) and (D), ¹ and refused to release this information. After exhausting its administrative remedies in an attempt to obtain complete disclosure, L & C filed the present case before the District Court for the Southern District of Georgia. OSHA moved for summary judgment arguing that the information was exempt under 7(C) and (D).

The facts in the case are largely undisputed. In May of 1981, Johnny Ward, a longshoreman, was seriously injured in a work-related accident aboard the M/V OSWEGO PLANTER. Pursuant to the Occupational Safety and Health Act, 29 U.S.C. Sec. 657, OSHA conducted an investigation of the accident. ² In the course of that investigation, the OSHA officer obtained the names of all the longshoremen working on the boat and interviewed the four men working with Ward at the time of the accident. The OSHA investigator advised these four employee-witnesses that their identities would be kept in confidence with respect to the information they offered about the accident and safety conditions unless they declined the confidentiality. One of the four co-workers declined but the other three workers accepted the assurance of confidentiality. See Brown Affidavit, R. at 94. ³ Ward later filed suit against L & C and the other plaintiffs-appellees. L & C then sought access through FOIA to the accident file in order to obtain complete written statements as evidence against Ward's personal injury suit and for a pending limitation of liability proceeding. When OSHA refused to release the names and other identifying information arguing that such action would constitute an unwarranted invasion of privacy ((7)(C)) and disclose the identity of a confidential source ((7)(D)), the litigation in this case began. The district court found that the information was not properly exempt under either FOIA exemption, denied OSHA's motion for summary judgment and ordered the agency to disclose the requested information. OSHA then filed this appeal arguing that the district court misconstrued the purpose and extent of the FOIA exemptions.

The Freedom of Information Act was enacted to provide public access to most forms of government records. In order to effectuate the Act's policy in favor of disclosure, F.B.I. v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982), all FOIA exemptions are to be narrowly construed. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). Exemptions 7(C) and (D) were created to prevent disclosure of investigatory purposes to the extent that production would result in an unwarranted invasion of personal privacy or reveal the identity of a confidential source. Both parties agreed and the district court found that the information sought here consists of investigatory records complied for law enforcement purposes. What remains at issue is whether disclosure of the information requested by L & C and the other companies would invade the personal privacy of the employee-witnesses or reveal the identity of any confidential sources.

Exemption 7(C)

The district court had an adequate factual basis for determining whether releasing the names and other identifying information related to Ward's co-workers would constitute an unwarranted invasion of privacy. The court had before it the names and statements of the employee-witnesses interviewed as well as memorandum submitted by both parties. As a matter of law in determining whether a particular disclosure represents an unwarranted invasion of privacy, the district court must balance the individual's privacy interest against the public interest in disclosure. See Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and reference to congressional history at 96 S.Ct. 1604-05; and New England Apple Council v. Donovan, 725 F.2d 139, 143 (1st Cir.1984), and cases cited therein. Lloyd and Henniger v. Marshall, 526 F.Supp. 485, 487 (M.D.Fla.1981); Atty. General's Memorandum on 1974 Amendments to FOIA, Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts and Other Documents at 520 (Joint Comm.Print 1975) (hereinafter cited as Source Book). The district court found no need to even consider these interests because it found as a threshold matter that the disclosure would not impinge on any privacy interests of the individuals working on the boat or those who gave statements to the OSHA investigator. The court based this conclusion on the fact that the plaintiffs requesting the information already had access to the names of those working aboard the ship and access, through discovery, to the identities of those men working directly with Ward. Since the individuals involved could not be considered anonymous, the district court reasoned that they did not have a privacy interest protectable under 7(C).

An individual does not lose his privacy interest under 7(C) because his identity as a witness may be discovered through other means. The employee-witnesses in this case have a substantial privacy interest in this case as disclosure would lead to the type of harm, embarrassment and possible retaliation that 7(C) was created to prevent. Miles v. U.S. Dept. of Labor, 546 F.Supp. 437, 440 (M.D.Pa.1982); Lloyd and Henniger v. Marshall, supra, 526 F.Supp. at 487. ⁴ Then too, the courts have long been aware of the effects of disclosure upon the availability of information to the government. There can be little doubt that an employee will feel more free to talk with federal law enforcement officials about possible employer violations if he feels his name will not be attached to his statements. See Kiraly v. F.B.I., 728 F.2d 273, 278 (6th Cir.1984).

The district court's misconception regarding 7(C) is based in part on a misreading of the extent of the privacy interest. The privacy interest does not encompass, as plaintiffs-appellees contend, only those matters which involve intimate details of an individual's life. Even if the names of the employee-witnesses are already known, disclosure would tie each witness to a particular statement. More importantly, this linking would disclose the nature and exactitude of each employee-witnesses' comments about the safety of the work place, which could cause one or more of them problems at their jobs and with their livelihoods. In his memorandum on the 1974 Amendments to FOIA, Attorney General Levi noted that:

It is thus clear that the privacy interest does not extend only to types of information that people generally do not make public. Rather in the present context it must be deemed generally to include information about an individual which he could reasonably assert an option to withhold from the public at large because of its intimacy or its possible adverse effects upon himself or his family.

Source Book at 519-20 (emphasis added). Another court faced with requests for information from OSHA investigatory files reached the same conclusion. See Miles v. U.S. Dept. of Labor, supra, 546 F.Supp. at 440. (Section 7(C) protects against disclosure where the information would cause embarrassment because of its intimate nature or because of the fact of the individual's cooperation with the investigation itself.) Because the district court found no privacy interest on the part of the employee-witnesses, it did not conduct the balancing of the individual's privacy interest and the public interest in disclosure. Since the witnesses had a privacy interest, we reach that step in the analysis and conclude that the balance clearly preponderates toward the employee-witnesses and thereby against disclosure.

Plaintiffs-appellees have failed to present any evidence of how disclosure of the requested information would serve the public interest. L & C alleges that it needs the complete file to use as evidence in pending litigation. The private needs of the companies for documents in connection with litigation, however, play no part in whether disclosure is warranted. New England Apple Council v. Donovan, supra, 725 F.2d at 144; Lloyd and Henniger v. Marshall, 526 F.Supp. at 487; Miles v. U.S. Dept. of Labor, 546 F.Supp. at 440. Since the purpose of the FOIA exemptions and the Occupational Safety and Health Act is to encourage witnesses to report what they have seen and there is no public interest in the identities of these employee-witnesses, the information sought falls...