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SHEET METAL WORKERS' INTL. ASSN. LOCAL UNION NO. 1

September 14, 1995

SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL UNION NO. 19
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 SEPTEMBER 14, 1995

 Presently before the court are the Sheet Metal Workers' International Association Local Union No. 19's ("Plaintiff") and the United States Department of Veterans Affairs' ("Defendant") cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion will be granted and Defendant's motion will be denied.

 I. BACKGROUND

 The material facts of this case are undisputed. In early 1994, Tri-State Design Construction Company ("Tri-State"), a private contractor, performed a contract with Defendant to renovate the roof at the Veterans Affairs Nursing Home in Wilmington, Delaware. Pursuant to the Davis-Bacon Act ("Davis-Bacon"), 40 U.S.C. §§ 276a et seq., Tri-State was required to pay its employees wages not less than those determined by the Secretary of Labor to be prevailing in the geographic area of the project. 40 U.S.C. § 276a. In addition, pursuant to the Copeland Act, 40 U.S.C. § 276c, Tri-State was required to furnish weekly statements to Defendant with respect to the wages it paid to each employee during the preceding week. Id. Regulations promulgated by the Department of Labor under the Copeland Act required Tri-State to include in each statement detailed information about the employees on the project, including their names, home addresses, social security numbers, job classifications, hourly pay rate, number of hours worked, wages and fringe benefits paid, and deductions subtracted from their wages. 29 C.F.R. § 5.5(a)(3). Defendant had to enforce Tri-State's compliance with these standards and investigate contracts if necessary to ensure compliance. 29 C.F.R. § 5.6(a)(3).

 Plaintiff is an unincorporated labor organization based in Philadelphia. (Compl. P 4). Following Plaintiff's standard practice of monitoring whether federal agencies are enforcing private contractors' compliance with Davis-Bacon, organizer Donald G. Clagg ("Clagg") visited the roof renovation site on numerous occasions and witnessed several workers performing various types of sheet metal work. (Clagg Aff. PP 3-6, 13, 35). On March 4, 1994, pursuant to the Freedom of Information Act, 5 U.S.C. § 552, Plaintiff requested from Defendant the weekly certified payroll statements, the apprentice registration forms submitted to Defendant by Tri-State, and a copy of the prevailing wage rate. *fn1" (Compl. Ex. A). On April 15, 1994, Defendant denied the request, stating that the certified payrolls were not public information and, therefore, not available under FOIA. (Compl. Ex. B). Plaintiff appealed this decision a month later. (Compl. Ex. C). On July 22, 1994, Defendant denied Plaintiff's appeal, concluding that the Tri-State workers had a substantial privacy interest in their names, addresses, wages and benefits information and that such information must be withheld under 5 U.S.C. § 552(b)(6). (Compl. Ex. D).

 On February 16, 1995, Plaintiff filed this suit pursuant to FOIA, seeking (1) a declaratory judgment that Defendant is not entitled to withhold the certified payroll records under 5 U.S.C. § 552(b)(6); and (2) an injunction to compel disclosure of those records. In the alternative, Plaintiff requests that the court inspect the requested records in camera to determine whether portions may be exempt from public disclosure. Plaintiff also seeks attorneys' fees and costs pursuant to FOIA.

 After the complaint was filed, Defendant provided Plaintiff's attorney with copies of the certified payrolls, but redacted the names and addresses of the employees and information relating to net wages. On a separate sheet of paper, Defendant gave Plaintiff a list of names of employees who were purportedly employed by Tri-State on the renovation project. (Clagg Aff. P 33; Cuesta Decl. PP 1-5). Plaintiff argues that this information is useless because it can not effectively monitor the accuracy of the payrolls unless it can match particular Tri-State employees to their work classifications and salaries. (Clagg Aff. P 34). Plaintiff asserts that because these records fail to match the workers with their duties and the wages they received, it is unable to confirm the records with its personal on-site observations and interviews with Tri-State employees. Id. On June 7, 1995, Defendant sent Plaintiff a copy of the prevailing wage rate. (Wilson Decl. P 6).

 On March 27, 1995, Defendant moved for summary judgment, asserting that, under prevailing United States Supreme Court precedent, it was prohibited from disclosing the names, addresses, social security numbers, wage deductions and net wage information under 5 U.S.C. § 552(b)(6). Plaintiff filed a Cross-Motion for Summary Judgment a month later, arguing that the United States Court of Appeals for the Third Circuit's case, International Bhd. of Elec. Workers Local Union No. 5 v. U.S. Dep't of Hous. and Urban Dev., 852 F.2d 87, 89 (3d Cir. 1989), governs this case and mandates release of the records.

 II. STANDARD FOR SUMMARY JUDGMENT

 Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Whether a genuine issue of material fact is presented will be determined by asking if "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 On a motion for summary judgment, the non-moving party has the burden to produce evidence to establish prima facie each element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Such evidence and all justifiable inferences that can be drawn from it are to be taken as true. Anderson, 477 U.S. at 255. However, if the non-moving party fails to establish an essential element of its claim, the moving party is entitled to a judgment dismissing that claim as a matter of law. Celotex, 477 U.S. at 322-23.

 The standards by which a court decides a summary judgment motion do not change when the parties file cross motions. Southeastern Pa. Transp. Auth. v. Pennsylvania Pub. Util. Comm'n, 826 F. Supp. 1506, 1512 (E.D. Pa. 1993), aff'd, 27 F.3d 558 (3d Cir.), cert. denied, 130 L. Ed. 2d 279, 115 S. Ct. 318 (1994). When ruling on cross motions for summary judgment, the court must consider the motions independently. Williams v. Philadelphia Housing Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd 27 F.3d 560 (3d Cir. 1994), and view the evidence in each motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 III. DISCUSSION

 A. Freedom of Information Act

 FOIA mandates that federal agencies promptly make available to the public any records that are the subject of a reasonable request. 5 U.S.C. § 552(a)(3). However, there are nine categories of exemptions to mandatory disclosure. Under Exemption 6, an agency may refuse to disclose "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6). FOIA reflects a policy of full disclosure unless the information fits into one of the statutory exemptions, Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976), and the burden is on the agency to justify its withholding of records, U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). Defendant argues that it may withhold the Tri-State employees' names, addresses, and net pay information on the payroll records because such data fall within Exemption 6.

 The Supreme Court has applied a balancing test to resolve Exemption 6 claims. Under this test, a court must weigh the public interest served by disclosure against the harm resulting from the invasion of privacy. U.S. Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 127 L. Ed. 2d 325, 114 S. Ct. 1006, 1013 (1994); Reporters Comm., 489 U.S. at 762; Federal Labor Relations Auth. v. U.S. Dep't of the Navy, 966 F.2d 747, 756 (3d Cir. 1992). In this case, the court's task is to balance the privacy interest of the Tri-State employees in nondisclosure of the payroll information against "the extent to which disclosure . . . would shed light on an agency's performance of its statutory duties or otherwise let citizens ...


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