The opinion of the court was delivered by: OBERDORFER
HUD had guaranteed a loan to finance construction of the Touraine Apartments in Buffalo. The prime contractor engaged by the borrower/developer had subcontracted with Knorz, a non-union employer. Federal law
required the contractors to prepare and file with HUD, and HUD had a duty to monitor, reports of the wages and fringe benefits actually paid by Knorz to its employees.
Plaintiffs doubted whether Knorz was paying lawful wages and benefits on the Touraine Apartments project. In accordance with FOIA, they asked HUD's Buffalo office for
copies of the certified payroll reports, blocking out the social security numbers of the contractors' employees, but showing names, employee classifications, rate of wages and fringe benefits which were paid to the employees.
Affidavit of James F. Gleason, Jr., dated February 29, 1984 (Exhibit A) (hereinafter "Gleason Affidavit"). The request stated that the plaintiffs' union sought the information to protect the wages and fringe benefits which its members presently receive in the Buffalo area from unlawful competition -- that is, from non-union wages less than the prevailing wage prescribed by law for work on federally financed contracts.
HUD responded to the request by forwarding copies of the certified payroll records from which the employees' names, social security numbers, and income tax information were deleted. HUD justified these deletions on the ground that "disclosure would constitute clearly unwarranted and unreasonable invasion of personal privacy."
Thereafter, HUD's Deputy General Counsel affirmed this denial on the authority of FOIA, Exemption 6, 5 U.S.C. § 552(b)(6). It was the opinion of the Deputy General Counsel that the union was not entitled to any greater rights than a disinterested member of the general public simply because the union wanted the information to monitor compliance with the law. He also determined that the public interest militated against release. Plaintiffs filed suit challenging these determinations on October 11, 1983.
A hearing on cross-motions for summary judgment was held on May 11, 1984, at which time it became apparent that the only further information plaintiffs sought was the names of eight electricians who worked for Knorz, Inc. on the Touraine Apartments project. Memorandum in Support of Defendants' Motion for Summary Judgment at 5.
The dominant objective of FOIA is disclosure, and FOIA exemptions are accordingly construed narrowly. Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). FOIA exemption 6, here invoked by HUD, applies only to
personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
5 U.S.C. § 552(b)(6). To decide whether this exemption precludes disclosure of names of non-union workers on a federally funded construction project, the Court must make a de novo determination of (1) whether the information sought is in a personnel file or medical record and, if so, (2) whether release of it would be a "clearly unwarranted invasion of personal privacy." Even assuming these criteria are met, the agency must still disclose the information unless it can show that the public interest in disclosure does not outweigh the substantial interest in personal privacy. See Getman v. N.L.R.B., 146 U.S. App. D.C. 209, 450 F.2d 670, 674-677 (D.C. Cir. 1971).
Plaintiffs here concede that the information they seek is derived from personnel files. They dispute, however, HUD's contention that disclosure would cause an unwarranted invasion of personal privacy which is not outweighed by the public interest in disclosure.
One of defendants' justifications for nondisclosure -- that disclosure of employees' names will enable plaintiffs to figure out how much each individual has earned on the Touraine Apartments project -- fails to meet the "clearly unwarranted invasion of personal privacy" criterion of Exemption 6 analysis. The disclosure of how much an employee of an electrical contractor earned from a particular federally guaranteed construction project hardly constitutes the sort of embarrassing revelation intended to be protected by Exemption 6. The annual salary of every federal employee is a matter of public record. Here, plaintiffs will learn only what a particular employee earned on a particular federally guaranteed project, not the employee's total income from all sources or projects. Employees of an electrical contractor working on a construction job are likely to work on several jobs in a relatively short period of time. Disclosure of wages from a particular job would not disclose or give the key to a disclosure of a person's entire income to the extent that the disclosure would be embarrassing. Compare Washington Post v. Department of Health and Human Services, 223 U.S. App. D.C. 139, 690 F.2d 252 (D.C. Cir. 1982) (Exemption 6 does not preclude disclosure of a federal consultant's statement in which he reveals all federal and non-federal employment and all organizations in which he or his family had an interest).
If there is any colorable invasion of privacy in this case, it lies in the disclosure not of these employees' salaries, but rather in the disclosure to a union of names of persons working at the site who are not members of a union. At issue is whether a person who elects to work for a contractor on a federally financed project has an interest in keeping his identity secret that outweighs the public interest in disclosure. The burden is on the defendants to establish the supremacy of the privacy interest. Sims v. C.I.A., 206 U.S. App. D.C. 157, 642 F.2d 562, 573 (D.C. Cir. ...