1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-9-1998

Local Union 19 v. US Dept Veterans

Precedential or Non-Precedential:

Docket 97-1116,97-1293

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"Local Union 19 v. US Dept Veterans" (1998). 1998 Decisions. Paper 26.

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Filed February 9, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1116 & 97-1293 

SHEET METAL WORKERS INTERNATIONAL 

ASSOCIATION, LOCAL UNION NO. 19 

v. 

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 96-cv-04120) 

Argued November 18, 1997 

Before: SCIRICA and LEWIS, Circuit Judges 

and ACKERMAN, District Judge* 

(Filed February 9, 1998) 

_________________________________________________________________ 

*The Honorable Harold A. Ackerman, United States District Judge for the 

District of New Jersey, sitting by designation. 
 JOHN F. DALY, ESQUIRE (ARGUED) 

 United States Department of Justice 

 Civil Division, Appellate Staff, 

 Room 7124 

 10th and Pennsylvania Avenue, N.W. 

 Washington, D.C. 20530-0001 

 LEONARD SCHAITMAN, ESQUIRE 

 United States Department of Justice 

 Civil Division, Appellate Staff, 

 Room 9152 

 601 D Street, N.W. 

 Washington, D.C. 20530-0001 

 JOAN K. GARNER, ESQUIRE 

 Office of United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, Pennsylvania 19106 

 Attorneys for Appellant 

 CHARLES T. JOYCE, ESQUIRE 

 (ARGUED) 

 Spear, Wilderman, Borish, Endy, 

 Spear & Runckel 

 230 South Broad Street, Suite 1400 

 Philadelphia, Pennsylvania 19102 

 Attorney for Appellee 

 TERRY R. YELLIG, ESQUIRE 

 Sherman, Dunn, Cohen, Leifer & 

 Yellig, P.C. 

 1125 Fifteenth Street, N.W., 

 Suite 801 

 Washington, D.C. 20005 

 Attorney for Amicus Curiae 

 Appellee, Building and 

 Construction Trades Department, 

 AFL-CIO 

 2 
OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

This case involves an interpretation of the Freedom of 

Information Act, 5 U.S.C.A. S 552 (West 1996 & Supp. 

1997). The issue on appeal is the continuing vitality of our 

opinion in International Bhd. of Elec. Workers Local Union 

No. 5 v. United States Dep't of Hous. and Urban Dev. , 852 

F.2d 87 (3d Cir. 1988) ("IBEW"). In IBEW, we held the 

Freedom of Information Act's S 552(b)(6) privacy exemption 

could not prevent disclosure of certain wage related 

information which the union used to measure compliance 

with the Davis-Bacon Act, 40 U.S.C.A. SS 276a-276a-7 

(West 1986 & Supp. 1997). The specific issue here requires 

us to once again balance the public interest served by 

disclosure against the harm resulting from the invasion of 

privacy in light of intervening decisions from the Supreme 

Court. 

I. 

A. 

Plaintiff-appellee, the Sheet Metal Workers' International 

Association, Local Union No. 19, monitors "whether federal 

agencies are enforcing private contractors' compliance with 

[the Davis-Bacon Act]." Sheet Metal Workers' Int'l Ass'n 

Local Union No. 19 v. United States Dep't of Veterans 

Affairs, No. 96-4120, 1997 WL 34681, at *1 (E.D. Pa. Jan. 

28, 1997). "The Davis-Bacon Act requires that the wages of 

work[ers] on a Government construction project shall be 

`not less' than the `minimum wages' specified in a schedule 

furnished by the Secretary of Labor." United States v. 

Binghamton Const. Co., 347 U.S. 171, 172, reh'g denied, 

347 U.S. 940 (1954). Essentially, it provides "that all 

laborers and mechanics working on federally funded 

construction projects be paid not less than the prevailing 

wage in the locality in which the work is performed." IBEW, 

852 F.2d at 88. 

 3 
"The Davis-Bacon Act is enforced in part through the 

Copeland Act, 40 U.S.C. S 276c, which requires federal 

contractors to submit weekly payrolls to the government." 

Id. The Copeland Act authorizes the Secretary of Labor to 

make "reasonable regulations for contractors and 

subcontractors engaged in the construction, prosecution, 

completion or repair of public buildings . . . including a 

provision that each contractor and subcontractor shall 

furnish weekly a statement with respect to wages paid each 

employee during the preceding week." 40 U.S.C.A. S 276c 

(West 1986). 

Contractors' payrolls must contain: "the name, address, 

and Social Security number of each such worker, his or her 

correct classification, hourly rates of wages paid (including 

rates of contributions or costs anticipated for bonafide 

fringe benefits or cash equivalents thereof . . . ), daily and 

weekly number of hours worked, deductions made and 

actual wages paid." 26 C.F.R. S 5.5(a)(3)(I) (1997). The 

public agency hiring the contractor must ensure 

compliance with these regulations. See 26 C.F.R. S 5.6(a)(3) 

("The federal agency shall cause such investigations to be 

made as may be necessary to assure compliance with the 

labor standards clauses required by S 5.5 and the 

applicable statutes listed in S 5.1"). 

The union contends it uses this information (1) to 

ascertain whether the contractor is inflating the numbers of 

employees actually working on the job site; (2) to compare 

the employees' listed job classifications with the work 

actually performed on the job site; (3) to determine whether 

the contractor is using the same employee for two different 

classifications on the same job; (4) to check the consistency 

over time of the rate of pay for a particular classification; (5) 

to determine whether the employer is using the proper ratio 

of mechanics to journeymen apprentices; and (6) to 

determine if the apprentices are properly registered with the 

State Director of Apprenticeship and Training, whether they 

are working out of their classification, and whether they are 

receiving the proper rate of pay. (See App. at 50-52 (Clagg 

Aff. PP 10-12)). 

 4 
B. 

Boro Developers, Inc. is a construction company who

contracted with defendant-appellant, the United States 

Department of Veterans Affairs. The Department of 

Veterans Affairs hired Boro to assist in the renovation of 

the Veterans Administration hospital in Wilmington,

Delaware. 

On January 16, 1996, the union requested from the 

Department of Veterans Affairs (1) copies of the certified 

payrolls Boro submitted for the hospital renovation, (2) 

copies of apprentice registration forms, and (3) "the 

applicable Prevailing Wage determination established by the 

Department of Labor" for the hospital renovation. (App. at 

8 (Compl. Ex. A)).1 By letter dated February 20, 1996, the 

Department of Veterans Affairs responded to the union's 

request: "Due to privacy act considerations, names, Social 

Security numbers, fringe benefits, etc. [will] be redacted." 

(App. at 11 (Compl. Ex. B)). 

The union renewed its request on March 6, 1996. (See 

App. at 13 (Compl. Ex. C)). A formal appeal was filed on 

March 20, 1996 through counsel, reiterating the union's 

demand: "the [Department of Veterans Affairs] is entitled 

under the FOIA only to redact Social Security numbers 

. . . . All other information . . . including employees' names, 

addresses, job classifications and pay rates, must be 

provided in full." (App. at 16-17 (Compl. Ex. D)). 

On May 3, 1996, the Department of Veterans Affairs 

issued its final denial, relying primarily on SS 552(b)(6) and 

552(b)(7)(C) of the Freedom of Information Act: 

 Some of the information contained on the records 

 you seek is personal in nature [S 552(b)(6)], and the 

 records themselves are considered to be law 

_________________________________________________________________ 

1. "[A]pprentice registration forms show which employees of the 

contractor have been registered as apprentices by the State." (App. at 50 

(Clagg Aff. P 9)). The Prevailing Wage Determination is "a list of all 

applicable pay rates for various job classifications . . . . [assessed] by 

the 

Department of Labor Wage and Hour Division after conducting a survey 

of local private contractors to determine what the`prevailing rate' is." 

(Id. 

(Clagg Aff. P 7)). 

 5 
 enforcement records [S 552(b)(7)(C)]. The personal 

 information in the requested records includes the 

 record subjects' names and Social Security numbers, 

 their home addresses, sex and racial status, together 

 with a breakout of their payroll withholdings and net 

 pay. As records containing such personal information, 

 these records fall within the scope of records that are 

 subject to the aforementioned exemptions. 

* * * 

 the wages paid for work performed, the rates and job 

 classifications of the payees should be available to the 

 public. 

* * * 

 please understand that individual identifiers, such as 

 names, and Social Security numbers, addresses, sex, 

 race, payroll withholdings and net pay, will be 

 redacted. 

(App. at 40-41(Compl. Ex. E)). 

C. 

On June 3, 1996, the union filed a complaint in the

United States District Court for the Eastern District of 

Pennsylvania seeking disclosure under the Freedom of 

Information Act. (See App. at 4-5 (Compl.P 13)). The 

complaint requested, inter alia, (1) that the court order the 

Department of Veterans Affairs to provide the requested 

documents; (2) that, in the alternative, the Department of 

Veterans Affairs furnish the court with the records for an in 

camera inspection to determine if any exemptions apply; 

and (3) that the court enter a declaratory judgment that the 

Department of Veterans Affairs cannot rely on S 552(b)(6) as 

authority for withholding the requested information. (App. 

at 5-6 (Compl. Wherefore Cl.)). 

The Department of Veterans Affairs moved for summary 

judgment, arguing SS 552(b)(6) and 552(b)(7)(C) prohibit the 

disclosure of the requested information. The unionfiled a 

cross-motion for summary judgment. The district court 

granted the union's cross-motion for summary judgment 

and denied the Department of Veterans Affairs's motion. 

 6 
The able district judge described his task as follows: "to 

balance the privacy interest of the Boro 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 

know what their government is up to.' " Sheet Metal

Workers', Local No. 19, 1997 WL 34681, at *4 (citation 

omitted). Relying largely on our well reasoned opinion in 

IBEW, the district court nonetheless recognized a string of 

recent appellate decisions which questioned the rationale of 

that decision:2 

 These cases, of course, cannot overrule IBEW. Only 

 the Supreme Court and the Third Circuit can overrule 

 that case, and neither court has done so expressly. The 

 position taken by the Second, Ninth, Tenth, and 

 District of Columbia circuits cannot bind this court. 

* * * 

 The court recognizes that the case law in this area is 

 evolving as a result of Supreme Court decisions, and 

 that Courts of Appeals have taken a closer look at 

 employees' privacy interests in light of the Supreme 

 Court's discussion of the issue. This court, however, is 

 bound by the rulings of the Third Circuit until that 

 court changes its position or its decisions are overruled 

 by the Supreme Court. The court concludes that the 

 IBEW decision controls this case, has not been 

 overruled, and continues to be the law in this circuit. 

 The fact that the court has concluded that it is 

 bound by the rule set forth in IBEW does not mean 

 that the court agrees with the Third Circuit's balancing 

_________________________________________________________________ 

2. See United States Dep't of Defense, et al. v. Federal Labor Relations 

Auth., 510 U.S. 487 (1994); United States Dep't of Justice et al. v. 

Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989); 

Sheet Metal Workers Int'l Ass'n Local No. 9 v. United States Air Force, 63 

F.3d 994 (10th Cir. 1995); Painting Indus. of Haw. Market Recovery Fund 

v. United States Dep't of the Air Force, 26 F.3d 1479 (9th Cir. 1994); 

Painting and Drywall Work Preservation Fund v. Department of Hous. and 

Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (considering IBEW doubtful 

authority); Hopkins v. United States Dep't of Hous. and Urban Dev., 929 

F.2d 81 (2d Cir. 1991) (same). 

 7 
 of interests in that case, especially as it relates to 

 disclosure of the employees' names and home 

 addresses. The court finds considerable merit in the 

 position taken by the Second, Ninth, Tenth, and 

 District of Columbia circuits and suggests that the 

 Third Circuit consider using the facts of this case to 

 reexamine IBEW in light of these decisions. 

Sheet Metal Workers', Local No. 19, 1997 WL 34681, at *6 

& n.1 (citations omitted). The Department of Veterans 

Affairs appealed. 

II. 

Generally, we apply a two-tiered test when reviewing an 

order granting summary judgment in proceedings seeking 

disclosure under the Freedom of Information Act: 

 The reviewing court must first decide whether the 

 district court had an adequate factual basis for its 

 determination. 

* * * 

 [I]t must then decide whether that determination was 

 clearly erroneous. Under the clearly erroneous 

 standard, this Court may reverse only if the findings 

 are unsupported by substantial evidence, lack 

 adequate evidentiary support in the record, are against 

 the clear weight of the evidence or where the district 

 court has misapprehended the weight of the evidence. 

 The two tiered standard of review of the district court's 

 determination that a particular document is or is not 

 properly subject to exemption does not, of course, 

 preclude plenary review of issues of law. 

McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir. 

1993) (citations omitted).3 

_________________________________________________________________ 

3. This standard does not receive uniform application among the courts 

of appeals. See Sheet Metal Workers Int'l Assoc. Local No. 9 v. United 

States Air Force, 63 F.3d 994, 997 (10th Cir. 1995) (recognizing "there 

may be some disagreement among other courts as to the precise 

standard of review of a grant of summary judgment in a FOIA case"). 

 8 
In this case, however, the district court based its grant of 

summary judgment on our ruling in International Bhd. of 

Elec. Workers Local Union No. 5 v. United States Dep't of 

Hous. and Urban Dev., 852 F.2d 87 (3d Cir. 1988). In that 

event, we exercise plenary review. McDonnell, 4 F.3d at 

1242. 

III. 

A. 

"The Freedom of Information Act was enacted to facilitate 

public access to Government documents." Sheet Metal

Workers Int'l Assoc. Local No. 9 v. United States Air Force, 

63 F.3d 994, 996 (10th Cir. 1995). See also Hopkins v. 

United States Dep't of Housing and Urban Dev., 929 F.2d 

81, 83 (2d Cir. 1991) (the Freedom of Information Act "was 

enacted in 1966 to create a broad right of access to official 

information") (citation omitted). There is a presumption in 

favor of disclosure, and "FOIA expressly places the burden 

`on the agency to sustain its action.' " United States Dep't of 

Justice et al. v. Reporters Committee for Freedom of the 

Press, et al., 489 U.S. 749, 755 (1988) (citations omitted). 

See also United States Dep't of Defense et al. v. Federal 

Labor Relations Auth., 510 U.S. 487, 494 (1994) 

_________________________________________________________________ 

Compare Painting Indus. of Haw. Market Recovery Fund v. United States 

Dep't of the Air Force, 26 F.3d 1479, 1482 (9th Cir. 1994) ("we apply a 

two-step standard of review to FOIA cases. We determine whether the 

district court had an adequate factual basis on which to make its 

decision and, if so, review for clear error the district court's finding 

that 

the documents were exempt") (citation omitted), with, McDonnell, 4 F.3d 

at 1241-42 ("summary judgment in an FOIA case`takes on a unique 

configuration.' As a result, the familiar standard of appellate review 

promulgated by Federal Rule of Civil Procedure 56(c) does not apply"), 

and, Petroleum Info. Corp. v. United States Dep't of the Interior, 976 

F.2d 

1429, 1433 & n.3 (D.C. Cir. 1992) ("This circuit applies in FOIA cases 

the same standard of appellate review applicable to generally to 

summary judgments. The Ninth Circuit, we note, applies a clearly 

erroneous standard to district court determinations on summary 

judgment in FOIA cases") (citation omitted). 

 9 
("disclosure, not secrecy, is the dominant objective of 

FOIA") (citation omitted). 

"Public access to government information is not, however, 

`all encompassing.' " Sheet Metal Workers', Local No. 9, 63 

F.3d at 996 (citation omitted). The act "reflects a general 

philosophy of full agency disclosure unless information is 

exempted under clearly delineated statutory language." 

Dep't of Defense, 510 U.S. at 494 (citations omitted). 

"Congress exempted nine categories of documents from 

the FOIA's broad disclosure requirements." Reporters 

Committee, 489 U.S. at 755. The two categories that are 

relevant here, SS 552(b)(6) and (b)(7)(C), exclude from 

disclosure requirements: 

 (6) personnel and medical files and similar files the 

 disclosure of which would constitute a clearly 

 unwarranted invasion of personal privacy; and (7) 

 records or information compiled for law enforcement 

 purposes, but only to the extent that the production of 

 such law enforcement records or information . . . (C) 

 could reasonably be expected to constitute an 

 unwarranted invasion of personal privacy. 

5 U.S.C. S 552(b)(6), (b)(7)(C). 

Resolution of a case under S 552(b)(6) "depends on a 

discrete inquiry: whether the disclosure of [the requested 

information] would constitute a clearly unwarranted

invasion of personal privacy of the bargaining unit

employees within the meaning of the FOIA." Dep't of

Defense, 510 U.S. at 495. As the Supreme Court held: 

 First, in evaluating whether a request for information 

 lies within the scope of a FOIA exemption . . . a court 

 must balance the public interest in disclosure against 

 the interest Congress intended the exemption to 

 protect. 

 Second, the only relevant `public interest in 

 disclosure' to be weighed in this balance is the extent 

 to which disclosure would serve the `core purpose of 

 the FOIA,' which is `contributing significantly to public 

 understanding of the operations or activities of the 

 government.' 

 10 
* * * 

 Third, whether an invasion of privacy is warranted 

 cannot turn on the purposes for which the request for 

 information is made. Because `Congress clearly 

 intended' the FOIA `to give any member of the public as 

 much right to disclosure as one with a special interest 

 in a particular document,' except in certain cases 

 involving claims of privilege, `the identity of the 

 requesting party has no bearing on the merits of his or 

 her FOIA request.' 

Id. at 495-96 (citations omitted). 

With respect to the privacy interest protected: 

 the cases sometimes characterized as protecting 

 `privacy' have in fact involved at least two different 

 kinds of interests. One is the individual interest in 

 avoiding disclosure of personal matters, and another is 

 the interest in independence in making certain kinds of 

 important decisions . . . . both the common law and 

 the literal understandings of privacy encompass the 

 individual's control of information concerning his or 

 her person. 

Reporters Committee, 489 U.S. at 762-63 (citations omitted). 

See also Painting Indus., 26 F.3d at 1482 ("We cannot limit 

our evaluation of the effects of disclosure to the requesting 

party's particular purpose in seeking disclosure. We must 

evaluate both public benefit and the potential invasion of 

privacy by looking at the nature of the information

requested and the uses to which it could be put if released 

to any member of the public"); Painting and Drywall Work 

Preservation Fund, Inc. v. Dep't of Hous. and Urban Dev., 

936 F.2d 1300, 1302 (D.C. Cir. 1991) ("Reporters Committee 

defines privacy as encompassing `the individual's control of 

information concerning his or her person.' That information 

includes the prosaic . . . as well as the intimate and 

potentially embarrassing"). 

Section 552(b)(7)(C) "provides greater protection from 

disclosure than exemption 6." Sheet Metal Workers', Local 

No. 9, 63 F.3d at 996 (citation omitted). See also Dep't of 

Defense, 510 U.S. at 496 n.6 ("Reporters Committee 

 11 
provides the same guidance in making this identification in 

Exemption 7(C) and Exemption 6 cases"); Reporters 

Committee, 489 U.S. at 756 ("the standard for evaluating a 

threatened invasion of privacy interests resulting from the 

disclosure of records compiled for law enforcement 

purposes is somewhat broader than the standard 

applicable to personnel, medical, and similar files"); 

Hopkins, 929 F.2d at 87 n.5 ("While Reporters Committee 

dealt with Exemption 7(C), its teachings apply to the 

analogous provisions of Exemption 6 as well") (citation 

omitted). 

Because S 552(b)(7)(C) provides greater protection, our 

analysis of S 552(b)(6) obviates the need to examine the 

Department of Veterans Affairs's S 552(b)(7)(C) argument. 

See Sheet Metal Workers', Local No. 9, 63 F.3d at 998-99 

("Because we hold that exemption 6 protects the 

information sought from disclosure, we need not address 

whether the more protective provisions of exemption 7(C) 

would also prevent disclosure of that information"); Painting 

Indus., 26 F.3d at 1486 ("Because we hold that Exemption 

6 justifies the government's action in providing redacted 

copies of certified payroll records requested by the labor 

organizations, we need not reach the Exception 7(C) issue"). 

B. 

1. 

At present, International Bhd. of Elec. Workers Local 

Union No. 5 v. United States Dep't of Hous. and Urban Dev., 

852 F.2d 87 (3d Cir. 1988), provides the rule of decision in 

this circuit. In IBEW, the union asked the Department of 

Housing and Urban Development to release the names,

addresses, and Social Security numbers of non-union

employees working for a federal HUD contractor. HUD

furnished the payroll records, which included the 

employees' work classifications, hours worked, rates of pay, 

and gross and net pay levels. But citing the S 552(b)(6) 

privacy exemption, HUD deleted the employees' names, 

home addresses, and Social Security numbers. The district 

court granted summary judgment to the union, compelling 

HUD to furnish this information. 

 12 
We described the appropriate appellate inquiry as follows: 

"to determine whether the information sought is subject to 

privacy protection and, if so, whether the invasion of 

privacy is `clearly warranted.' This inquiry involves a 

balancing of public interest served by disclosure against the 

harm resulting from the invasion of privacy." IBEW, 852 

F.2d at 89. 

With respect to the Social Security numbers, we found a 

strong privacy interest: "the extensive use of Social Security 

numbers as universal identifiers in both the public and 

private sectors is one of the most serious manifestations of 

privacy concerns in the nation." Id. (citations omitted). We 

failed to discover any countervailing public interest 

justifying their release: "the Union has offered no public 

interest that would be furthered by the release of the Social 

Security numbers . . . . Faced with an identifiable privacy 

interest, we must conclude that the release of the Social 

Security numbers would constitute a clearly warranted 

invasion of privacy and is therefore barred by exemption 6." 

Id. 

But release of the names and addresses, we thought,

implicated different privacy concerns: 

 First . . . individuals generally have a meaningful 

 interest in the privacy of information concerning their 

 homes which merits some protection. In particular, 

 individuals have some privacy interest in their home 

 addresses, although the invasion of privacy effected by 

 such disclosure is not as serious as it would be by the 

 disclosure of more personal information. Second, the 

 employees have a privacy interest in their salaries. This 

 interest is not as great for employees of federal 

 contractors as for other employees, however, since the 

 Davis Bacon Act requires the posting of wage scales at 

 the job site. Although it is true that the posted wage 

 scales link wages with positions rather than names, 

 thereby preserving some degree of privacy in salary 

 levels, the posting nevertheless reduces the workers 

 reasonable expectation of privacy in their salaries. 

Id. (citation omitted). 

 13 
We found the union's ability to monitor a contractor's 

compliance with -- and the awarding agencys' enforcement 

of -- the Davis-Bacon Act a sufficiently strong 

countervailing public interest to warrant disclosure. 

 [I]f the release of names and addresses of employees of 

 government contractors makes it more likely that 

 contractors will abide by the Act's requirements, the 

 release of the information is in the public interest. 

 Although the redacted wage reports would in some 

 cases enable the Union to detect violations of the 

 Davis-Bacon Act, they provide no means for auditing 

 the representations of the contractor. If the contractor 

 misrepresents his weekly wage information, the only 

 way to determine if the Davis-Bacon act is being 

 violated is to contact the contractor's employees and to 

 compare their responses to those given by the 

 contractor. We conclude, therefore, that the release of 

 the names and addresses would facilitate the Union's 

 investigation of possible Davis-Bacon Act violations, 

 and thereby would further the public interest. 

* * * 

 [T]he mere fact that federal agencies are directly 

 responsible for enforcing the Davis-Bacon Act does not 

 mean that the Union has no role to play in furthering 

 the public interest. If enforcement of the Act is in the 

 public interest, then more effective enforcement of the 

 Act is also in the public interest. 

* * * 

 Moreover, the Union's interest in monitoring HUD's 

 enforcement of the Davis Bacon Act is exactly the kind 

 of public interest Congress intended FOIA to facilitate. 

* * * 

 The Union need not show that the information it seeks 

 will in fact prove useful . . . . the fact that the Union 

 has a proprietary interest in protecting its wages does 

 not diminish the public interest in the use of the 

 names and addresses to enhance Davis-Bacon Act 

 enforcement. In addition, we note that HUD has 

 14 
 neither offered an argument nor presented evidence 

 that the Union seeks the information only as a 

 subterfuge to harass nonunion members or to solicit 

 new membership. Absent such a challenge, we must 

 accept the Union's stated purpose in seeking the 

 names and addresses. 

Id. at 90-92 (citations and internal quotations omitted). 

2. 

Subsequent to our decision in IBEW, the United States 

Supreme Court decided two cases which attached more

significance to the privacy interests of employees, United 

States Dep't of Justice et al. v. Reporters Committee For 

Freedom of the Press, 489 U.S. 749 (1989), and United 

States Dep't of Defense, et al. v. Federal Labor Relations 

Auth., 510 U.S. 487 (1994). In Reporters Committee, a news 

correspondent and the Reporters Committee for Freedom of 

the Press unsuccessfully requested "rap sheets" -- 

documents containing descriptive information as well as a 

history of arrests, charges, convictions, and incarcerations 

-- from the Federal Bureau of Investigation. Finding the 

privacy interests of private citizens with rap sheets 

outweighed any public interest served by disclosure, the 

Supreme Court concluded S 552(b)(7)(C) allowed the FBI to 

withhold the requested information: 

 The privacy interest in maintaining the practical 

 obscurity of rap-sheet information will always be high. 

 When the subject of such rap sheet is a private citizen 

 and when the information is in the Government's 

 control as a compilation, rather than as a record of 

 `what the Government is up to,' the privacy interest 

 protected by Exemption 7(C) is in fact at its apex while 

 the FOIA based public interest in disclosure is at its 

 nadir. Such a disparity on the scales of justice holds 

 for a class of cases without regard to individual 

 circumstances; the standard virtues of bright line rules 

 are thus present, and the difficulties attendant to ad 

 hoc adjudication may be avoided. Accordingly, we hold 

 as a categorical matter that a third party's request for 

 law enforcement records or information about a private 

 15 
 citizen can reasonably be expected to invade that 

 citizen's privacy, and that when the request seeks`no 

 official information' about a government agency, but 

 merely records that the Government happens to be 

 storing, the invasion of privacy is `unwarranted.' 

Reporters Committee, 489 U.S. at 780. 

In Dep't of Defense, the Supreme Court decided "whether 

disclosure of the home addresses of federal civil service 

employees by their employing agency pursuant to a request 

made by the employees' collective bargaining representative 

under the Federal Service Labor Management Relations 

Statute . . . would constitute a clearly unwarranted 

invasion of the employees' personal privacy." Dep't of 

Defense, 510 U.S. at 489. The Supreme Court characterized 

the public interest in disclosure of the addresses as 

"negligible": "Disclosure of the addresses might allow the 

unions to communicate more effectively with employees, 

but it would not appreciably further the citizens right to be 

informed about what their government is up to. Indeed, 

such disclosure would reveal little or nothing about the 

employing agencies or their activities." Id. at 497. 

The employees' privacy interests in the non-disclosure of 

their home addresses, however, caused greater concern: 

 Because a very slight privacy interest would suffice to 

 outweigh the relevant public interest, we need not be 

 exact in our quantification of the privacy interest. It is 

 enough for present purposes to observe that the 

 employees' interest in nondisclosure is not 

 insubstantial. 

* * * 

 Whatever the reason that these employees have chosen 

 not to become members of the union or to provide the 

 union with their addresses, however, it is clear that 

 they have some non trivial privacy interest in 

 nondisclosure, and in avoiding the influx of union 

 related mail, and, perhaps, union related telephone 

 calls or visits, that would follow disclosure. 

 Many people simply do not want to be disturbed at 

 home by work related matters. Employees can lessen 

 16 
 the chance of such unwanted contacts by not revealing 

 their addresses to their exclusive representative. 

 Even if the direct union /employee communication 

 facilitated by the disclosure of home addresses were 

 limited to mailings, this does not lessen the interest 

 that individuals have in preventing at least some 

 unsolicited, unwanted mail from reaching them at their 

 homes. We are reluctant to disparage the privacy of the 

 home, which is accorded special consideration in our 

 Constitution, laws, and traditions. Moreover, when we 

 consider that other parties, such as commercial 

 advertisers and solicitors, must have the same access 

 under FOIA as the unions to the employee address lists 

 sought in this case it is clear that the individual 

 privacy interest that would be protected by 

 nondisclosure is far from insignificant. 

Id. at 500-01. 

Reporters Committee and Dep't of Defense demonstrate 

both an increased appreciation for employees' privacy and 

a concomitant decrease in the belief that disclosure of 

personal information for the purpose of monitoring DavisBacon Act compliance serves a public interest. 

3. 

Courts of appeals decisions following Reporters Committee 

and Dep't of Defense express the same view with respect to 

the relevant private and public interests. In Sheet Metal 

Workers Int'l Assoc. Local No. 9 v. United States Air Force, 

63 F.3d 994 (10th Cir. 1995), the Court of Appeals for the 

Tenth Circuit absolved the United States Air Force from an 

obligation to release individual names with certified payrolls 

and apprentice registration lists. 

 [T]hree circuits have held that employees of private 

 contractors performing federal construction projects 

 have a substantial privacy interest in personalfinancial 

 information with personal identifiers linking the 

 individual to the financial information. They have 

 further held that that interest outweighs any 

 recognized public interest in the disclosure of such 

 information. Whether viewed as relevant to the 

 17 
 magnitude of the privacy interest at issue, or to the 

 appropriate balance between that interest and the 

 public interest in disclosure, we see no principled 

 distinction between names alone as personal 

 identifiers, or names and addresses. Either one 

 provides the critical connection between personal 

 information and the individual to whom that 

 information relates. 

Id. at 998. 

Painting Indus. of Haw. Market Recovery Fund v. United 

States Dep't of Air Force, 26 F.3d 1479 (9th Cir. 1994) 

considered similar information private: 

 In the cases before us, requesters seek a list of people 

 engaged in the construction trade, broken into their 

 particular occupational classification. Undoubtedly, 

 such a list would be of interest to people working in 

 the construction trades . . . . [T]here is a substantial 

 probability that the disclosure will lead to the use of 

 the list by marketers and a concomitant invasion of the 

 workers' right to be let alone. 

* * * 

 The requesters here not only seek names and

 addresses, but also particularized information about 

 wages. We agree with those circuits that have 

 considered the issue that significant privacy interests 

 are implicated by the release of this information. 

Id. at 1483-85 (citations omitted). 

Painting and Drywall Work Preservation Fund, Inc. v. 

Department of Hous. and Urban Dev., 936 F.2d 1300 (D.C. 

Cir. 1991) reached a similar result with respect to a 

Freedom of Information Act request to HUD to supply

certified payrolls. Although HUD supplied the records, it 

invoked S 552(b)(6) and withheld names, Social Security 

numbers, and home addresses. The Court of Appeals for 

the District of Columbia Circuit found disclosure would 

invade the employees' privacy, contravening the purpose of 

the Freedom of Information Act: "If we were tofind that the 

Fund is entitled to receive the information sought, the 

workers would experience a significant diminution in their 

 18 
expectations of privacy because that same information 

would also have to be provided, for example, to creditors, 

salesmen, and union organizers." Id. at 1303 (citation 

omitted). The possibility of this intrusion outweighed any 

public interest in disclosure: "As information that might 

reveal the failure of contractors to comply with relevant 

laws does not in itself cast light on what HUD is up to, we 

can find no obvious public interest in its disclosure that is 

relevant to this analysis." Id. (citation omitted).

In Hopkins v. United States Dep't of Hous. and Urban 

Dev., 929 F.2d 81 (2d Cir. 1991) the union requested 

certified payroll records from HUD to monitor Davis-Bacon 

Act compliance. Relying on S 552(b)(6), HUD deleted all 

employee names, addresses, and Social Security numbers. 

Siding with HUD, the Court of Appeals for the Second 

Circuit found "individual private employees have a 

significant privacy interest in avoiding disclosure of their 

names and addresses, particularly where, as here, the 

names and addresses would be coupled with personal 

financial information." Id. at 87 (citations omitted). The 

court ultimately considered disclosure unwarranted:

 disclosure of the names and addresses sought by 

 appellant would shed no light on HUD's performance in 

 enforcing the prevailing wage laws. Rather, disclosure 

 of this information would serve the public interest only 

 insofar as it would allow the Union to contact 

 individual employees, who may then dispute the 

 accuracy of the data reflected in the records, and so 

 reveal violations of the prevailing wage laws that HUD, 

 through proper diligence, should have detected. Were 

 we to compel disclosure of personal information with so 

 attenuated a relationship to governmental activity, 

 however, we would open the door to disclosure of 

 virtually all personal information, thereby eviscerating 

 the FOIA privacy exemptions. 

Id. at 88 (citations omitted). According to Hopkins, the 

public interest served by disclosure was not outweighed 

by the employees' privacy interests "in controlling

dissemination of their names, addresses and wage 

information. Indeed, the likelihood that the union would 

 19 
use the requested identifying information to contact 

employees at their homes dramatically increases the

already significant threat to the employees privacy interests 

that disclosure of this information would entail." Id. 

(citation omitted). 

C. 

1. 

After considering the views expressed by the Supreme 

Court in Reporters Committee and Dep't of Defense and 

reviewing the recent decisions from other courts of appeals, 

we believe we should modify our decision in IBEW. 

Generally, "a panel of this court is bound by, and lacks 

authority to overrule, a published decision of a prior panel." 

Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996) 

(citations omitted).4 Nonetheless, "a panel may reevaluate a 

precedent in light of intervening authority and amendments 

to statutes or regulations. Our sister circuits abide by that 

self-same principle." Id. (citing, inter alia, Williams v. 

Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.)("An existing 

panel decision may be undermined by controlling authority, 

subsequently announced, such as an opinion of the 

Supreme Court, an en banc opinion of the circuit court, or 

a statutory overruling"), cert. denied, 116 S. Ct. 51 (1995)). 

See also Planned Parenthood of S.E. Pa. v. Casey, 947 F.2d 

682, 698 (3d Cir. 1991) ("a change [by the Supreme Court] 

in the legal test or standard governing a particular area is 

a change binding on lower courts that makes results

reached under a repudiated legal standard no longer

binding"), aff'd in part, rev'd in part, 505 U.S. 833 (1992). 

Although the intervening decisions from the Supreme

Court in Reporters Committee and Dep't of Defense do not 

answer the precise issue presented here, their reasoning 

_________________________________________________________________ 

4. See Third Circuit I.O.P. 9.1 ("It is the tradition of this court that 

the 

holding of a panel in a reported opinion is binding on subsequent 

panels. Thus, no subsequent panel overrules the holding in a published 

opinion of a previous panel. Court in banc consideration is required to 

do so"). 

 20 
and holdings clearly counsel re-examination of our 

reasoning and holdings in IBEW.5 

2. 

The union contends there is a strong public interest in 

monitoring agency enforcement of the prevailing wage law 

because the information sought contributes significantly to 

public understanding of the operations or activities of the 

government. Congress, the union argues, enacted both the 

Davis-Bacon Act and the Copeland Act to facilitate 

regulation of contractors. According to the union, the 

records requested would make it easier to rectify any 

mistake or omission that government agencies might make 

during such enforcement activities. Redacted payrolls, the 

union complains, require blind acceptance of the 

contractor's unverifiable reports. 

Furthermore, the union characterizes the employees'

privacy interest as insignificant because (1) the addresses 

are available from other public sources; (2) the employees' 

wage scales are posted publicly at the job site; and (3) the 

employees received no promises of confidentiality with 

respect to the requested data. 

a. 

We believe the union overestimates the public interest to 

be served by disclosure. "[T]he only relevant public interest 

in disclosure to be weighed . . . is the extent to which 

disclosure would serve the core purpose of the FOIA, which 

is contributing significantly to public understanding of the 

operations or activities of the government." Dep't of 

Defense, 510 U.S. at 495 (citations omitted). The release of 

names, addresses, and similar "private" information reveals 

little, if anything, about the operations of the Department of 

_________________________________________________________________ 

5. We are not alone in recognizing that the conclusion reached in IBEW 

has been superseded by Supreme Court authority. See Painting and 

Drywall, 936 F.2d at 1303 (IBEW "predated Reporters Committee and is 

therefore of `doubtful authority' ") (citation omitted); Hopkins, 929 F.2d 

at 

87 (IBEW "[w]as decided prior to Reporters Committee . . . and [is] of 

doubtful authority in light of that opinion"). 

 21 
Veterans Affairs. See id. at 497 ("Disclosure of the 

addresses . . . would not appreciably further the citizens' 

right to be informed about what their government is up to. 

Indeed, such disclosure would reveal little or nothing about 

the employing agencies or their activities"); Painting Indus., 

26 F.3d at 1486 (referring to "the marginal additional 

usefulness that the names and addresses would serve in 

uncovering `what the government is up to' "); Painting and 

Drywall, 936 F.2d at 1303 ("As information that might 

reveal the failure of contractors to comply with relevant 

laws does not in itself cast light on what HUD is up to, we 

can find no obvious public interest in its disclosure that is 

relevant to this analysis"); Hopkins, 929 F.2d at 88 

("disclosure of the names and addresses sought by 

appellant would shed no light on HUD's performance in 

enforcing prevailing wage laws . . . . [but] would serve the 

public interest only insofar as it would allow the Union to 

contact individual employees"). 

It would appear that since our decision in IBEW nine 

years ago, the Supreme Court has refined and reformulated 

the applicable standard measuring the "core purpose" of 

the Freedom of Information Act, namely contributing

significantly to public understanding of the operations or 

activities of government. After the decisions in Reporters 

Committee and Department of Defense, no court of appeals 

has given much weight to the monitoring function. We are 

compelled to do likewise. In a broad sense of course, the 

public has an interest in whether a federal agency fairly 

and adequately enforces prevailing wage laws. See Hopkins, 

929 F.2d at 88 ("While assertions of public interest in 

`monitoring' government operations `have not been viewed 

favorably by the courts,' we accept this interest as within 

the ambit of public interest recognized in Reporters 

Committee") (citations omitted). But even assuming 

"monitoring" government operations, to some degree falls 

within the scope of public interest enunciated in Reporters 

Committee, in this case, providing the requested 

information -- the names and addresses of the individual 

workers -- would not enhance agency enforcement of 

prevailing wage laws. 

Some Davis-Bacon Act violations appear clearly on the 

face of the payroll records regardless whether names are 

 22 
shown, e.g., the payment of a properly classified worker at 

a lower rate than the prevailing rate for their classification. 

To insure compliance, the union need only compare job 

classifications to pay rates to determine if the contractor 

pays its employees the prevailing wage. Furthermore, other 

violations remain undetected irrespective whether names 

appear, e.g., (1) the improper classification of a worker 

which results in payment at a lower than prevailing rate; 

and (2) the proper classification and compensation of a 

worker who then pays the contractor a "kick-back." 

Divulging names and addresses will have no beneficial 

effect on the union's ability to detect these violations. 

Moreover, the ability of the union to determine whether 

private contractors pay their workers prevailing wages does 

not mean that unlimited disclosure of payroll records is in 

the public interest. See Hopkins, 929 F.2d at 88 ("whatever 

public interest there may be in knowing whether private 

parties are violating the law is not the sort of public interest 

advanced by the FOIA, and has no weight in Exemption 6 

balancing"). We are reluctant to overstate the public 

interest served by disclosure in light of diminishing 

importance attributed to the monitoring function and the 

unproven ability of the requested information to assist in 

the enforcement of prevailing wage laws. Disclosure will not 

contribute significantly to the public's understanding of 

government activities. 

We also believe the union enjoys alternate, less intrusive, 

methods by which it may collect the desired information 

including, but not limited to, (1) dispensing fliers to workers 

as they arrive and leave job sites or posting signs or 

advertisements designed to solicit information from workers 

about possible wage law violations, and (2) using existing 

information to compare job classifications with pay rates. 

See Painting Indus., 26 F.3d at 1485 ("The requesters here 

have less intrusive means of procuring the information they 

seek than having the government disgorge private 

information from its files"); Painting and Drywall, 936 F.2d 

at 1303 ("the Fund has an alternative means of access to 

current workers -- face to face conversation") (citation 

omitted). 

 23 
b. 

Against a weak public interest in disclosure, we weigh the 

private interest of employees in non-disclosure of their 

names and addresses. We begin by noting that under the 

more recent standards articulated by the Supreme Court in 

Reporters Committee and Dep't of Defense, our opinion in 

IBEW may have underestimated the importance of 

employees' privacy interests violated by the dissemination 

of this information. Recent appellate decisions have also 

underscored the substantiality of that interest and afforded 

it greater weight in the balancing process. 

Proliferation of information about private citizens

implicates neither the spirit nor the purpose of the Freedom 

of Information Act. See Reporters Committee, 489 U.S. at 

765-66 ("[D]isclosure of records regarding private citizens, 

identifiable by name, is not what the framers of the FOIA 

had in mind . . . . provisions, for deletion of identifying 

references . . . reflect a congressional understanding that 

disclosure of records containing personal details about 

private citizens can infringe significant privacy interests"); 

Painting and Drywall, 936 F.2d at 1303 ("The dissemination 

of this sort of information about private citizens is not what 

the framers of the FOIA had in mind") (citation omitted); 

Hopkins, 929 F.2d at 88 ("Were we to compel disclosure of 

personal information with so attenuated a relationship to 

governmental activity, however, we would open the door to 

disclosure of virtually all personal information, thereby 

eviscerating the FOIA privacy exemptions"). 

We recognize the Supreme Court described the interest of 

bargaining unit employees in non-disclosure of their home 

addresses only as "not insubstantial." Dep't of Defense, 510 

U.S. at 500. Nonetheless, even a slight privacy interest will 

tip the scales in favor of non-disclosure. See id. ("Because 

a very slight privacy interest would suffice to outweigh the 

relevant public interest, we need not be exact in our 

quantification of the privacy interest"). 

The significant privacy concerns attached to the home 

and employees' interest in avoiding a barrage of unsolicited 

contact weighs heavily in our consideration. See id. at 501 

("[employees] have some non-trivial privacy interest in 

 24 
nondisclosure, and in avoiding the influx of union-related 

mail, and, perhaps, union-related telephone calls or visits, 

that would follow disclosure . . . . We are reluctant to 

disparage the privacy of the home, which is accorded 

special consideration in our Constitution, laws, and 

traditions") (citations omitted) (emphasis deleted); Hopkins, 

929 F.2d at 88 ("the likelihood that the Union would use 

the requested identifying information to contact employees 

at their homes dramatically increases the already 

significant threat to the employees' privacy interests that 

disclosure of this information would entail"). 

At the same time, we find unconvincing the union's 

argument that employees have waived their privacy rights 

because their addresses are available from other public 

sources and are posted publicly at the job site. 

 It is true that home addresses often are publicly 

 available through sources such as telephone directories 

 and voter registration lists, but in an organized society, 

 there are few facts that are not at one time or another 

 divulged to another. The privacy interest protected by 

 Exemption 6 encompasses the individuals' control of 

 information concerning his or her person. An

 individual's interest in controlling the dissemination of 

 information regarding personal matters does not 

 dissolve simply because that information may be 

 available to the public in some forum. 

Dep't of Defense, 510 U.S. at 500. 

Once the union receives this information, there is no bar 

to others having unlimited access to it. See id. at 496 

("Congress clearly intended to give any member of the 

public as much right to disclosure as one with a special 

interest in a particular document . . . the identity of the 

requesting party has no bearing on the merits of his or her 

FOIA request") (citation omitted). It is possible that the 

information requested may be misappropriated by 

marketers, creditors, solicitors, and commercial advertisers, 

eroding the employees' expectation of privacy. See id. at 

501 ("when we consider that other parties, such as 

commercial advertisers and solicitors, must have the same 

access under FOIA as the unions to the employee address 

 25 
lists . . . it is clear that the individual privacy interest that 

would be protected by nondisclosure is far from 

insignificant"); Painting Indus., 26 F.3d at 1483 ("there is a 

substantial probability that disclosure will lead to the use 

of the list by marketers and a concomitant invasion of the 

workers' right to be let alone"); Painting and Drywall, 936 

F.2d at 1303 (if "we were to find that the Fund is entitled 

to receive the information sought, the workers would 

experience a significant diminution in their expectations of 

privacy because that same information would also have to 

be provided, for example, to creditors, salesmen, and union 

organizers"). The prospect of this unwarranted intrusion 

counsels against disclosure. 

IV. 

The privacy interest of employees in the non-disclosure of 

their names and addresses substantially outweighs the 

slight public interest put forth by the union. Dissemination 

of the requested data to the union would ultimately result 

in an unwarranted invasion of personal privacy. To the 

extent that releasing this information serves a public 

interest, it is too attenuated to warrant a contrary result. 

Any other conclusion would be at odds with the core

purpose of the Freedom of Information Act, namely a

significant contribution to public understanding of the 

operations or activities of the government. 

The Department of Veterans Affairs may redact the 

names, Social Security numbers, and addresses of Boro 

employees from the information requested by the union. 

Accordingly, we will reverse the judgment of the district 

court and remand with directions to enter judgment in 

favor of the Department of Veterans Affairs. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26