Appeals court rejects request for federal payroll records sought under FOIA

CALIFORNIA — A federal appeals court in late June told two labor organizations that their desire to monitor the government’s compliance with a wage law was not an important enough public interest to compel release of payroll records under the federal Freedom of Information Act.

Reversing two lower courts, the U.S. Court of Appeals in San Francisco (9th Cir.) said pay records of workers on federally funded construction projects can be withheld under the FOI Act’s privacy exemption (Exemption 6) even though disclosure might enable the labor groups to learn from named individuals whether they had been paid prevailing wages as mandated by the Davis-Bacon Act.

The court found the workers have a substantial privacy interest in information that ties their names and addresses to payroll figures, information the court said would undoubtedly interest marketers who would invade the workers’ right to be left alone.

The court said further that release of the names and addresses would not serve the public’s interest by showing what the government was up to. To serve that interest, requesters would have to make derivative use of the information, contacting and interviewing named individuals. That contact would further intrude on the individuals’ privacy, the court said.

The Painting Industry of Hawaii Market Recovery Fund had sought payroll information on a private contractor to Hickam Air Force Base in Hawaii. The Seattle Building and Construction Trades Council, the AFL-CIO and Rebound had requested similar pay records from a Seattle housing rehabilitation project assisted by HUD. Federal district courts in Honolulu and Seattle had ordered the records released.

In a concurrence, Judge William Norris said construction workers’ privacy would not necessarily be exploited by mass marketers and that the court should not presume that would be the case. He also said the court should not ignore derivative uses of information as it considers the public interests served.

(Painting Industry of Hawaii v. Air Force; Counsel: Pauline Sloan, San Francisco; Seattle Building and Construction Trades Council v. HUD; Counsel: David Campbell, Seattle)