Reed v. N.L.R.B., 90-5147

• Decision Date: 15 March 1991
• Docket Number: No. 90-5147,90-5147
• Citation: 927 F.2d 1249
• Parties: 136 L.R.R.M. (BNA) 2803, 288 U.S.App.D.C. 394, 59 USLW 2570, 118 Lab.Cas. P 10,606 Rex H. REED, Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1249

927 F.2d 1249

136 L.R.R.M. (BNA) 2803, 288 U.S.App.D.C.

394, 59 USLW 2570,

118 Lab.Cas. P 10,606

Rex H. REED, Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Appellees.

No. 90-5147.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 31, 1991.

Decided March 15, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 89-3254).

Hugh L. Reilly, Kensington, Md., for appellant.

Abby Propis Simms, Atty., N.L.R.B., with whom Margery E. Lieber, Asst. Gen. Counsel for Special Litigation, N.L.R.B., Washington, D.C., was on the brief, for appellees.

Before MIKVA, Chief Judge, and EDWARDS and THOMAS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

This case requires us to decide whether Excelsior lists, which the National Labor Relations Board (the "NLRB" or "Board") obtains from employers and distributes to unions in representation proceedings, may be disclosed to the public through the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. Sec. 552 (1988). We conclude that the lists are protected from disclosure under Exemption 6 of the Act, and affirm the district court's entry of summary judgment for the Board.

I.

Appellant Rex Reed requested that the NLRB disclose copies of Excelsior lists in representation cases closed after January 1, 1984, preferably limited to elections won by unions in states without right-to-work laws. Excelsior lists refer to the Board's practice of requiring employers involved in pending representation elections to submit a list containing the names and addresses of all employees eligible to vote, which the Board then makes available to the organizing unions. Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966); see NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).

The Board's FOIA officer denied Reed's request for the Excelsior lists, concluding that they were protected under Exemptions 6 and 7(C) of the Act. Exemption 6 allows agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," while under Exemption 7(C) agencies may withhold "records or information compiled for law enforcement purposes" to the extent that production of such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Secs. 552(b)(6), (7)(C). After the Board's Acting General Counsel denied his appeal, Reed filed a complaint in the district court.

On cross motions by the parties, the district court entered summary judgment for the Board, concluding that Exemption 6 protected the Excelsior lists from disclosure. See Reed v. NLRB, Memorandum Opinion and Order 1990 WL 136647 (D.D.C. May 15, 1990) [hereinafter Order ]. The court found that (1) the lists constituted "similar files" within the meaning of Exemption 6; (2) the listed employees possessed a viable privacy interest in their names and addresses, even where the lists had previously been disclosed to parties in representation cases; and (3) there was no public interest in disclosure, given that the lists would reveal "little or nothing about" the NLRB's conduct. Order at 2-4. The court did not reach the Board's alternative argument that Exemption 7(C) also protected the lists from disclosure.

II.

In reviewing the district court's entry of summary judgment for the Board, we must first "be sure that the district court has not overlooked or impermissibly resolved any disputed material facts; and second, we must ensure that the judge correctly applied the relevant law to these undisputed facts." Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990); accord Sherwood v. Washington Post, 871 F.2d 1144, 1145 (D.C.Cir.1989). As the facts of this case are not in dispute, we focus here on the propriety of the district court's application of controlling legal precedents.

A threshold question is whether Excelsior lists--which contain the names and addresses of all employees eligible to vote sometimes broken down by employment area or job category--constitute "similar files" within the meaning of Exemption 6. See 5 U.S.C. Sec. 552(b)(6) (protecting "personnel and medical files and similar files"). Interpreting the legislative history of Exemption 6, the Supreme Court has instructed lower courts to construe the phrase "similar files" broadly, and to apply the exemption to any "Government records on an individual which can be identified as applying to that individual." See United States Dep't of State v. Washington Post Co., 456 U.S. 595, 601-02, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982) (citation omitted). Accordingly, decisions of this and other circuits have found names and addresses of individuals, like the Excelsior lists at issue here, to be "similar files." See, e.g., National Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989) [hereinafter NARFE ] (noting that "NARFE does not dispute that the names and addresses of recent annuitants are covered by the phrase"), cert. denied, --- U.S. ----, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990); Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1273 (9th Cir.1984) (finding that Excelsior lists constitute "similar files"); Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 135 (3d Cir.1974) (names and addresses of federally registered wine producers are "similar files").

The next step under Exemption 6 involves identifying the relevant privacy interests in nondisclosure and the public interests in disclosure, and determining "whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy." NARFE, 879 F.2d at 874. The district court correctly concluded that employees possess a legitimate privacy interest in their names and addresses. See Order at 3. Reviewing an association's request for the names and addresses of retired federal employees, we recently held that "the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant." NARFE, 879 F.2d at 875. See also Federal Labor Relations Auth. v. U.S. Dep't of the Treasury, 884 F.2d 1446, 1452 (D.C.Cir.1989) (reaffirming NARFE's privacy holding in context of current federal employees), cert. denied, --- U.S. ----, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990); Wine Hobby USA, 502 F.2d at 137 (noting that an "individual may fervently wish [her home address] to remain confidential").

Reed nonetheless contends that the NLRB's prior disclosure of Excelsior lists to unions during representation proceedings and the Board's failure to place restrictions on the unions' use of the lists undermine the significance of the individuals' asserted privacy interests. As the district court recognized, however, the Supreme Court has expressly rejected such a "cramped notion of personal privacy," affirming "the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public." United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1476, 1478, 103 L.Ed.2d 774 (1989) [hereinafter Reporters Committee ]. Although Reporters Committee addressed Exemption 7(C), the Court noted the similarity of the inquiry under Exemption 6, see 109 S.Ct. at 1472-73, 1479; indeed, we have previously found the case controlling in the Exemption 6 context, see NARFE, 879 F.2d at 874. Reed's attempt to limit the employees' privacy interest in Excelsior lists simply cannot overcome the language and holding of Reporters Committee.

Reporters Committee also controls our analysis of the countervailing public interest in disclosure of Excelsior lists. The Supreme Court explained that only "[o]fficial information that sheds light on an agency's performance of its statutory duties" merits disclosure under FOIA, and noted that "disclosure of information about private citizens that is accumulated in various governmental files" would "reveal[ ] little or nothing about an agency's own conduct." Reporters Committee, 109 S.Ct. at 1481. See also NARFE, 879 F.2d at 879 (noting that "unless the public would learn something directly about the workings of the Government," there is no public interest in disclosure (emphasis in original)). The Excelsior lists at issue here contain exclusively private information and would reveal...