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SCHONBERGER v. NTSB

February 25, 1981

Charles M. SCHONBERGER, et al., Plaintiffs,
v.
NATIONAL TRANSPORTATION SAFETY BOARD, et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

This suit under the Freedom of Information Act, 5 U.S.C. § 552 (1976) (FOIA) is before the Court on the parties' cross-motions for summary judgment. The plaintiffs are Claude Schonberger, an employee of the National Transportation Safety Board (NTSB), and Vice-President of Local 3313, American Federation of Government Employees, and Daniel T. Hinton, an employee of NTSB. The NTSB and its chairman, James B. King, are the defendants.

 On April 14, 1980, the plaintiffs requested access to information about the action taken by the Managing Director of NTSB concerning a grievance matter filed against B. Michael Levins, who is Hinton's supervisor. Hinton, represented by Schonberger as union steward, had sought a remedy through the grievance procedure against Levins as a result of an alleged battery committed by Levins against Hinton. On April 16, 1980, plaintiffs' request for the information was denied on the ground that the material sought was exempt from disclosure under two provisions of FOIA, exemption two (5 U.S.C. § 552(b)(2)) which covers matters solely related to internal personnel matters and practices within an agency, and exemption six (5 U.S.C. § 552(b)(6)), which regulates disclosure of records that would constitute an unwarranted invasion of privacy. Several days later plaintiffs appealed the decision denying disclosure to Chairman King, who denied their appeal pursuant to exemption six. The complaint was then instituted in this court.

 The defendants contend that plaintiffs' request is governed by FOIA's exemption six, which protects from disclosure "matters that are ... personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). To satisfy exemption six, the defendants must meet both aspects of the statutory test, showing that the material requested 1) is part of a personnel, medical, or similar file, and if so 2) would, if disclosed publicly, constitute a clearly unwarranted invasion of personal privacy. See Simpson v. Vance (D.C.Cir. 1980), 208 U.S. App. D.C. 270, 648 F.2d 10 at 12; Board of Trade of the City of Chicago v. Commodity Futures Trading Commission, (Board of Trade v. CFTC) 200 U.S. App. D.C. 339, 627 F.2d 392, 396 (D.C.Cir.1980). Once the first requirement is resolved, there must be a determination of whether the defendant meets the second prong of the test and in so doing, the court must balance the public interest in the free availability of information against the personal privacy interest of the individual who is named and discussed in the material sought. See Simpson, supra, at 12 - 13; Board of Trade v. CFTC, supra at 398.

 Plaintiffs assert that

 
"This is not a witchhunt, a fishing expedition, or a hunt into a man's personnel file but, on the contrary, a request for decision as to what action was taken against Mr. B. Michael Levine... requesting information which is an integral part of the agency's grievance process."

 Pls.' Cross Motion for Summary Judgment at 2.

 Nonetheless, the plaintiffs do not dispute that the information sought has now "become a part of Mr. Levin's personnel file." Id.

 Noting that "the document plaintiff-employee seeks is located in his supervisor's personnel record and involves Mr. Levins' supervisor's response to Mr. Levins' action," the defendants insist that the material requested clearly meets the requirement that the information be part of a personnel, medical, or similar file. In Department of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976), examples of material contained in personnel files were delineated: it was noted that such files usually contain "vasts amounts of personal data", including the individual's birthplace, "the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performance." Id. at 377, 96 S. Ct. at 1606. The request in this case, seeking information concerning a disciplinary action against Levins, surely requests information located in that individual's personnel file, but, even were a matter relating to the discipline of an employee insufficient in and of itself to be constituted as "part of a personnel file", there seems little doubt it could readily be characterized as "similar file" within the purview of Exemption 6.

 Clearly, the purpose of that exemption is to "protect individuals from public disclosure of intimate details of their lives", Rural Housing Alliance v. United States Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73, 77 (D.C.Cir.1974). In determining whether the information is "similar" to personnel and medical files under the Act, the data must be "of the same magnitude as highly personal or as intimate in nature as that at stake in personnel and medical records", Board of Trade v. CFTC, supra, 627 F.2d at 398. See, Simpson v. Vance, supra, at 13 - 14. In Department of Air Force v. Rose, supra, 425 U.S. at 376-77, 96 S. Ct. at 1606, the Supreme Court determined that Air Force Academy case summaries relating to the discipline of cadet personnel constituted "similar files."

 The issue then is whether disclosure of the material requested would be in the public interest or if, instead, disclosure would cause an invasion of Levins' privacy that would outweigh whatever public benefit is gained in making this information freely available.

 The defendants maintain that the information sought concerns a purely personal matter, and that its disclosure would subject Levins to "difficulties tantamount to life long embarrassment, perhaps disgrace, as well as practical disabilities, such as loss of employment or friends." Department of the Air Force, supra, at 377, 96 S. Ct. at 1606. Characterizing the information as containing intimate details, the defendants contend that the balance under exemption six lies in Levins' favor because the public interest in one man's personnel record (or "similar" file) recounting the disposition of a single grievance cannot be considered as substantial. Compared to this de minimis interest is the legitimate privacy concern of Levins to avoid the public revelation of embarrassing information which might harm him professionally or personally.

 To satisfy exemption six under the second facet of the test, a case-by-case balancing approach must be applied to determine whether the public's interest in disclosure outweighs the individual's interest in privacy. In Rural Housing Alliance v. United States Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73 (D.C.Cir.1974), the Court of Appeals noted that the exemption "is phrased broadly to protect individuals from a wide range of embarrassing disclosures." ...


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