Painting Industry of Hawaii v. DEPT. OF AIR FORCE

• Decision Date: 25 May 1990
• Docket Number: Civ. No. 89-00713 ACK.
• Citation: 751 F. Supp. 1410
• Parties: PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff, v. UNITED STATES DEPARTMENT OF The AIR FORCE, Defendant.
• Court: U.S. District Court — District of Hawaii

751 F. Supp. 1410

PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff, v. UNITED STATES DEPARTMENT OF The AIR FORCE, Defendant.

Civ. No. 89-00713 ACK.

United States District Court, D. Hawaii.

May 25, 1990.

Michael A. Lilly, Green Ning Lilly & Jones, Honolulu, Hawaii, Pauline M. Sloan, San Francisco, Cal., for plaintiff.

Daniel Bent, Theodore G. Meeker, U.S. Attys. Office, Honolulu, Hawaii, Elizabeth Pugh, David Shaneyfelt, Washington, D.C., for defendant.

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT

KAY, District Judge.

I. PROCEDURAL HISTORY

Cross-motions for summary judgment were heard before this Court on April 9, 1990. Plaintiff filed suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel disclosure by Defendant of copies of certified payroll records of RG & B Contractors, Inc. ("RG & B"), a painting contractor on a military housing maintenance contract for the 15th Air Base Wing at Hickam Air Force Base, and for a declaratory judgment that contractor's payroll records are not exempt from disclosure. The military housing maintenance contract is subject to (i) the Davis Bacon Act, 48 C.F.R. §§ 22.403-1, 22.403-2; (ii) Federal Acquisition Regulations, 48 C.F.R. §§ 22.000-22.407; and, (iii) the Copeland (Anti-Kickback) Act, 18 U.S.C. § 874 and 40 U.S.C. § 276c.

The contractor payroll records contain, inter alia, the names, addresses, phone numbers, and social security numbers of RG & B's employees, and also their work classification, hourly rates of pay, daily hours, fringe benefits, and such deductions as union dues.

It is uncontested that Plaintiff has exhausted all its administrative remedies and that this matter is properly before this Court. This Court considers the matter de novo, i.e., it owes no deference to any previous administrative ruling. Title 5 U.S.C. § 552(a)(4)(B).

II. JURISDICTION

It is undisputed that this Court has jurisdiction to enjoin Defendant from withholding the RG & B payroll records and to order production of any RG & B records that are improperly withheld from Plaintiff. Title 5 U.S.C. § 552(a)(4)(B). This Court may also assess against the United States reasonable attorney fees and litigation costs in any case in which the complainant has substantially prevailed. Title 5 U.S.C. § 552(a)(4)(E).

Defendant argues, however, that the Court does not have jurisdiction to issue a declaratory judgment, or in essence to prospectively enjoin Defendant from refusing to disclose payroll records pertaining to future contracts with the Air Force. Defendant explicitly argues that every time Plaintiff wants to enforce the FOIA regarding the payroll records of a specific contractor that Plaintiff must bring a new action before this Court, i.e., the instant action pertains only to RG & B Contracting. There is no merit to Defendant's argument. The United States Court of Appeals, District of Columbia Circuit, the very Circuit upon which Defendant places almost total reliance for its legal authority, has explicitly held that a district court does have jurisdiction to enter a declaratory judgment in a suit brought under the FOIA:

The jurisdictional basis for this suit is to be found in 28 U.S.C. § 1332(a). The action arises under the FOIA and relief is sought pursuant to the Declaratory Judgement Act 28 U.S.C. § 2201, since the FOIA provides for actions requiring disclosure ... we agree with the District Court that the "actual controversy" here is whether the records sought are exempt from disclosure under the FOIA, and that Sears has a right to a declaratory judgment on this issue. Sears, Roebuck & Co. v. General Services Admin., 553 F.2d 1378, 1380-81 (D.C.Cir.), cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977) (emphasis added).

III. DISCUSSION

The FOIA implemented Congress' "general philosophy of full agency disclosure." U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989) ("Reporters Committee"). The Court of Appeals for the District of Columbia recently recognized that:

FOIA pursues a policy of broad disclosure of governmental records to "ensure an informed citizenry, vital to the functioning of a democratic society." Birch v. United States Postal Service, 803 F.2d 1206, 1208-09 (D.C.Cir.1986).

It is undisputed that the FOIA requires Defendant to promptly make available to Plaintiff, upon request for public inspection and copying, the disputed payroll records unless they are exempted from disclosure by one of the FOIA's statutory exemptions. Defendant has the burden of proving that the requested information is nondisclosable pursuant to one of the FOIA's explicit exemptions. 5 U.S.C. § 552(a)(4)(B); see also, Reporters Committee, 109 S.Ct. at 1472. That Defendant's burden is formidable is evident from the Birch decision:

The government agency bears the burden of setting forth "a relatively detailed justification" for assertion of an exemption, and must demonstrate to a reviewing court that records withheld are clearly exempt. Birch v. United States Postal Service, 803 F.2d 1206, 1208-09 (D.C. Cir.1986).

Defendant claims exemption from disclosure under three statutory exemptions — Exemptions 4, 6, and 7(C).¹ Plaintiff, on the other hand, claims that Defendant has failed to meet its burden of proving that the requested payroll records are nondisclosable pursuant to any statutory exemption and, accordingly, moves this Court to enjoin Defendant from withholding the requested records. Both parties have moved for summary judgment claiming that there exist no genuine issues of material fact and that they should prevail as a matter of law.

As discussed below, Defendant's motion for summary judgment is denied as to all claimed exemptions. Plaintiff's motion is partially granted and partially denied. As to Exemption 4, Plaintiff's motion for summary judgment is denied because there exists a genuine issue of material fact. As to Exemptions 6 and 7(C), summary judgment is granted in favor of the Plaintiff, with the exception that should Plaintiff ultimately prevail as to Exemption 4, any order issued by this Court enjoining Defendant from withholding contractor payroll records shall require Defendant to edit from the requested payroll records the Social Security numbers of the subject contractor's employees.

Summary Judgment Standard

Summary Judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Supreme Court of the United States has declared that Summary Judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. Id. at 322, 106 S.Ct. at 2552. The Ninth Circuit has fully adopted and implemented the Celotex rule:

If the nonmoving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate. California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), citing, Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

There can be no genuine issue as to any material fact where there is a complete failure of proof as to an essential element of the nonmoving party's case because all other facts are thereby rendered immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

The Movant bears the initial burden of informing this Court of the basis for its motion and identifying those sections of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the Movant believes demonstrate the absence of a genuine issue of material fact. There is, however, no requirement that the Movant support its motion with affidavits or other evidence negating the nonmoving party's claims. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

In order to withstand a motion for summary judgment, therefore,

The nonmoving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) .... If the factual context makes the nonmoving party's claim implausible, the party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. California Architectural, 818 F.2d 1466, 1468 (emphasis in original), citing, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Rule 56(e) explicitly states that the nonmoving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." It follows that the nonmoving party can withstand a properly supported motion for summary judgment only by establishing the existence of a proper jury question as to a genuine issue of material fact. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. Although the movant has the burden of showing that there is no genuine issue of fact,

The nonmoving party is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.... he must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514 (emphasis added).

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