Painting and Drywall Work Preservation Fund, Inc. v. Department of Housing and Urban Development

• Decision Date: 29 July 1991
• Docket Number: No. 88-5076,88-5076
• Citation: 936 F.2d 1300
• Parties: 30 Wage & Hour Cas. (BN 687, 30 Wage & Hour Cas. (BN 760, 290 U.S.App.D.C. 243, 119 Lab.Cas. P 35,509 PAINTING AND DRYWALL WORK PRESERVATION FUND, INC. v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1300

936 F.2d 1300

30 Wage & Hour Cas. (BN 687, 30 Wage & Hour

Cas. (BN 760,

290 U.S.App.D.C. 243, 119 Lab.Cas. P 35,509

PAINTING AND DRYWALL WORK PRESERVATION FUND, INC. v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Appellant.

No. 88-5076.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 17, 1991.

Decided June 21, 1991.

As Amended July 29, 1991.

Appeal from the United States District Court for the District of Columbia.

John F. Daly, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, Washington, D.C., for appellant. R. Craig Lawrence and Nathan Dodell, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellant.

Pauline M. Sloan, with whom Terry R. Yellig was on the brief, Washington, D.C., for appellee.

Before BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The Department of Housing and Urban Development appeals a district court order requiring it to divulge the names and addresses of construction workers that it had redacted from payroll records released pursuant to the Freedom of Information Act. The Department argues that the redacted information was properly withheld under Exemption 6 of the Act because its release would constitute an unwarranted invasion of the workers' privacy. Based on a Supreme Court interpretation of Exemption 6 that issued after the district court rendered its decision, we hold that the information was properly withheld.

I. BACKGROUND

The Painting and Drywall Work Preservation Fund is a nonprofit cooperative of painting and drywall contractors and labor unions. It seeks to monitor compliance with laws affecting public-works projects in California. Among these is the Davis-Bacon Act, 40 U.S.C. Secs. 276a-276a-5 (1988), as amended, which requires that workers on federal construction projects receive wages at the rate "prevailing" for similar workers in the locality. Id. Sec. 276a(a). To ensure compliance, contractors must post applicable wage scales at the construction sites. See id. Another law, section 2 of the Copeland Anti-Kickback Act, 40 U.S.C. Sec. 276c, empowers the Secretary of Labor to promulgate regulations to monitor and enforce prevailing-wage laws and requires contractors to submit certified payroll records to the contracting agency. These records list each worker's name, address, social security number, job classification, hourly pay, hours worked, wages, fringe benefits, and deductions. See 29 C.F.R. Sec. 3.4(b) 1990. Both the Department of Labor and the Department of Housing and Urban Development ("HUD"), as the contracting agency, enforce compliance with these laws. In doing so, they often rely on complaints from workers and unions.

This litigation arose from the Fund's requests to HUD for certified payroll records relating to three HUD-assisted projects. Although HUD provided the records, it invoked Exemption 6 of the Freedom of Information Act, 5 U.S.C. Sec. 552 (1988) ("FOIA") to withhold "personal identifiers"--names, social security numbers, and home addresses--that would have enabled the Fund to determine the earnings and work hours of individual employees. Exemption 6 permits withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. Sec. 552(b)(6). After exhausting administrative remedies in futile efforts to secure the withheld names and addresses, the Fund sued in district court to compel their disclosure.

On cross-motions for summary judgment, the district court entered judgment for the Fund. Relying on an earlier case decided on similar facts, the district court reasoned that wage information is not an "embarrassing revelation" to which Exemption 6 should apply and that the Fund's interest in enforcing public works laws served the public interest. The court concluded that the public interest in disclosure outweighed the privacy interest. See Painting & Drywall Work Preserv. Fund, Inc. v. HUD, No. 86-2431, 1987 WL 16323 (D.D.C. Aug. 13, 1987) (citing IBEW Local 41 v. HUD, 593 F.Supp. 542 (D.D.C.1984), aff'd, 763 F.2d 435 (D.C.Cir.1985)). HUD appealed to this court, which stayed the case pending the Supreme Court's ruling in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), and then again pending this court's application of that decision in National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990) ("NARFE"), and FLRA v. Department of the Treasury, 884 F.2d 1446 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 863, 107 L.Ed.2d 947 (1990). In light of these decisions, we now reverse the district court's grant of summary judgment for the Fund.

II. DISCUSSION

In reviewing a district court's grant of summary judgment in a case where there is no quarrel as to the material facts, we focus on the court's application of relevant law. See Reed v. NLRB, 927 F.2d 1249, 1250 (D.C.Cir.1991). The Fund does not dispute that the certified payroll records constitute "similar files" within the scope of Exemption 6. In applying this exemption, a court must identify the privacy interest served by withholding information and then the public interest that would be advanced by disclosing it. Having done so, the court must determine " 'whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy.' " Id. at 1251 (quoting NARFE, 879 F.2d at 874).

Reporters Committee defines privacy as encompassing "the individual's control of information concerning his or her person." 489 U.S. at 763, 109 S.Ct. at 1476. That information includes the prosaic (e.g., place of birth and date of marriage) as well as the intimate and potentially embarrassing. See NARFE, 879 F.2d at 875. Because FOIA requires disclosure to "any person," the balancing of the privacy against the public interest cannot depend on the identity and specific purpose of the party requesting the information. See id.; accord Hopkins v. HUD, 929 F.2d 81, 87 (2d Cir.1991). If it must be released to one requester, it must be released to all, regardless of the uses to which it might be put.

In NARFE, where an organization promoting the interests of federal annuitants sought a list of such individuals, we recognized that "the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant." 879 F.2d at 875. In FLRA, where a union sought lists of federal employees in certain bargaining units, we concluded that "federal employees[ ] have privacy interests in their names and home addresses that must be protected." 884 F.2d at 1453. As in Hopkins, the records at issue here involve not merely names, addresses, and the characteristic that defines the list (such as employment status, or employment on a particular construction project), but also a full weekly accounting of hourly wages, hours worked, deductions, and net pay. See 929 F.2d at 86.

The Fund maintains, on the authority of IBEW Local 5 v. HUD, 852 F.2d 87 (3d Cir.1988), that construction workers have a lesser privacy interest in their salaries than do other employees because the Davis-Bacon Act requires the posting of wage scales at the job site, thereby reducing the workers' reasonable expectation of privacy in their pay. See id. at 87. We note, first, that IBEW Local 5 predated Reporters Committee and is therefore of "doubtful authority." Hopkins, 929 F.2d at 87. Second, we disagree with the Third Circuit's premise that the Davis-Bacon Act significantly diminishes the workers' expectations of privacy; the Act mandates the posting of wage scales, but it does not reveal actual earnings of individual employees. See 40 U.S.C. Sec. 276a(a), see also Hopkins, 929 F.2d at 87 (holding that partial disclosure does not alter the privacy interests affected by broader disclosure through FOIA). Nor are their expectations of privacy diminished by the Copeland Act, which requires that certified payroll information be provided to federal agencies but does not require disclosure to the public at large. See 40 U.S.C. Sec. 276c.

If, on the other hand, we were to find that...