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. e du/thir dc ir c uit_1998/26Filed 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 Di strict 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

2OPINION 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 vitali ty of our opinion in International Bhd. of Elec. Workers Loca l 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 t he Freedom of Information Act's S 552(b)(6) privacy ex emption could not prevent disclosure of certain wage relate d information which the union used to measure complia nce with the Davis-Bacon Act, 40 U.S.C.A. SS 276a-276a- 7 (West 1986 & Supp. 1997). The specific issue here r equires us to once again balance the public interest served by disclosure against the harm resulting from the inva sion of privacy in light of intervening decisions from the Supreme

Court.

I.

A.

Plaintiff-appellee, the Sheet Metal Workers' Intern ational Association, Local Union No. 19, monitors "whether federal agencies are enforcing private contractors' complia nce with [the Davis-Bacon Act]." Sheet Metal Workers' Int'l Ass'n Local Union No. 19 v. United States Dep't of Vetera ns Affairs, No. 96-4120, 1997 WL 34681, at *1 (E.D. Pa . Jan. 28, 1997). "The Davis-Bacon Act requires that the w ages of work[ers] on a Government construction project shal l 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 den ied, 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 pre vailing 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 th e

Copeland Act, 40 U.S.C. S 276c, which requires fede ral contractors to submit weekly payrolls to the govern ment." Id. The Copeland Act authorizes the Secretary of La bor to make "reasonable regulations for contractors and subcontractors engaged in the construction, prosecu tion, completion or repair of public buildings . . . incl uding a provision that each contractor and subcontractor sh all furnish weekly a statement with respect to wages pa id each employee during the preceding week." 40 U.S.C.A. S 276c (West 1986).

Contractors' payrolls must contain: "the name, addr ess, 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 bon afide 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 investigation s 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 n umbers 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 determin e whether the contractor is using the same employee for two d ifferent classifications on the same job; (4) to check the c onsistency over time of the rate of pay for a particular class ification; (5) to determine whether the employer is using the prop er ratio of mechanics to journeymen apprentices; and (6) to determine if the apprentices are properly registere d with the State Director of Apprenticeship and Training, whet her they are working out of their classification, and whethe r they are receiving the proper rate of pay. (See App. at 50-5 2 (Clagg Aff. PP 10-12)).

4B.

Boro Developers, Inc. is a construction company who contracted with defendant-appellant, the United Sta tes Department of Veterans Affairs. The Department of

Veterans Affairs hired Boro to assist in the renova tion 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 ce rtified payrolls Boro submitted for the hospital renovation , (2) copies of apprentice registration forms, and (3) "t he applicable Prevailing Wage determination establishe d by the Department of Labor" for the hospital renovation. ( App. at 8 (Compl. Ex. A)).1 By letter dated February 20, 19 96, the Department of Veterans Affairs responded to the uni on's request: "Due to privacy act considerations, names, Social Security numbers, fringe benefits, etc. [will] be r edacted." (App. at 11 (Compl. Ex. B)).

The union renewed its request on March 6, 1996. (Se e App. at 13 (Compl. Ex. C)). A formal appeal was fil ed on March 20, 1996 through counsel, reiterating the uni on's demand: "the [Department of Veterans Affairs] is en titled under the FOIA only to redact Social Security numbe rs . . . . All other information . . . including emplo yees' 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 55 2(b)(6) and 552(b)(7)(C) of the Freedom of Information Act:

Some of the information contained on the re cords 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 empl oyees of the contractor have been registered as apprentices by t he State." (App. at 50 (Clagg Aff. P 9)). The Prevailing Wage Determinatio n is "a list of all applicable pay rates for various job classification s . . . . [assessed] by

the Department of Labor Wage and Hour Division after co nducting a survey of local private contractors to determine what the` prevailing rate' is."
(Id. (Clagg Aff. P 7)).

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

information in the requested records include s the record subjects' names and Social Security n umbers, their home addresses, sex and racial status, together with a breakout of their payroll withholding s and net pay. As records containing such personal inf ormation, these records fall within the scope of recor ds that are subject to the aforementioned exemptions.

* * *

the wages paid for work performed, the rates and job classifications of the payees should be avai lable to the public.

* * *

please understand that individual identifier s, such as names, and Social Security numbers, addresse s, 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 Distri ct of Pennsylvania seeking disclosure under the Freedom o f Information Act. (See App. at 4-5 (Compl.P 13)). Th e complaint requested, inter alia, (1) that the court order the Department of Veterans Affairs to provide the reque sted documents; (2) that, in the alternative, the Depart ment of

Veterans Affairs furnish the court with the records for an in camera inspection to determine if any exemptions ap ply; 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 summar y judgment, arguing SS 552(b)(6) and 552(b)(7)(C) pro hibit the disclosure of the requested information. The unionf iled a cross-motion for summary judgment. The district cou rt granted the union's cross-motion for summary judgme nt and denied the Department of Veterans Affairs's mot ion.

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

balance the privacy interest of the Boro employees in nondisclosure of the payroll information against`th e extent to which disclosure would shed light on an agency's performance of its statutory duties or otherwise le t citizens know what their government is up to.' " Sheet Metal Workers', Local No. 19, 1997 WL 34681, at *4 (citat ion omitted). Relying largely on our well reasoned opin ion in IBEW, the district court nonetheless recognized a s tring of recent appellate decisions which questioned the rat ionale of

that decision:2

These cases, of course, cannot overrule IBE W. Only the Supreme Court and the Third Circuit can overrule that case, and neither court has done so exp ressly. The position taken by the Second, Ninth, Tenth, and

District of Columbia circuits cannot bind th is court.

* * *

The court recognizes that the case law in t his area is evolving as a result of Supreme Court decisi ons, and that Courts of Appeals have taken a closer l ook 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 un til that court changes its position or its decisions are overruled by the Supreme Court. The court concludes th at the IBEW decision controls this case, has not be en overruled, and continues to be the law in th is 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. Fe deral 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. Unit ed 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 14 79 (9th Cir. 1994); Painting and Drywall Work Preservation Fund v. Depa rtment of Hous. and Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (conside ring IBEW doubtful authority); Hopkins v. United States Dep't of Hous. and Urban Dev., 929 F.2d 81 (2d Cir. 1991) (same).

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

disclosure of the employees' names and home

addresses. The court finds considerable meri t in the position taken by the Second, Ninth, Tenth, and District of Columbia circuits and suggests t hat the Third Circuit consider using the facts of th is 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 Vetera ns Affairs appealed.

II.

Generally, we apply a two-tiered test when reviewin g an order granting summary judgment in proceedings seek ing

disclosure under the Freedom of Information Act:

The reviewing court must first decide whethe r the district court had an adequate factual basis for its

determination.

* * *

[I]t must then decide whether that determina tion was clearly erroneous. Under the clearly erroneo us standard, this Court may reverse only if the findings are unsupported by substantial evidence, lac k adequate evidentiary support in the record, are against the clear weight of the evidence or where th e district court has misapprehended the weight of the e vidence.

The two tiered standard of review of the dis trict court's determination that a particular document is or is not properly subject to exemption does not, of c ourse, preclude plenary review of issues of law.

McDonnell v. United States, 4 F.3d 1227, 1242 (3d C ir. 1993) (citations omitted).3

___________________________________________________ ______________

3. This standard does not receive uniform applicati on among the courts of appeals. See Sheet Metal Workers Int'l Assoc. Lo cal 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 t he precise standard of review of a grant of summary judgment i n a FOIA case").

8In 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 De p't of Hous. and Urban Dev., 852 F.2d 87 (3d Cir. 1988). I n that event, we exercise plenary review. McDonnell, 4 F.3 d at

1242.

III.

A.

"The Freedom of Information Act was enacted to faci litate public access to Government documents." Sheet Metal

Workers Int'l Assoc. Local No. 9 v. United States A ir 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 A ct "was enacted in 1966 to create a broad right of access t o official information") (citation omitted). There is a presum ption in favor of disclosure, and "FOIA expressly places the burden `on the agency to sustain its action.' " United Sta tes Dep't of Justice et al. v. Reporters Committee for Freedom o f the Press, et al., 489 U.S. 749, 755 (1988) (citations omitted). See also United States Dep't of Defense et al. v. F ederal Labor Relations Auth., 510 U.S. 487, 494 (1994)

___________________________________________________ ______________

Compare Painting Indus. of Haw. Market Recovery Fun d 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 deter mine whether the district court had an adequate factual basis on whi ch to make its decision and, if so, review for clear error the dis trict court's finding

that the documents were exempt") (citation omitted), wit h, 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 o f the Interior, 976

F.2d 1429, 1433 & n.3 (D.C. Cir. 1992) ("This circuit ap plies in FOIA cases the same standard of appellate review applicable to generally to summary judgments. The Ninth Circuit, we note, appl ies a clearly

erroneous standard to district court determinations on summary judgment in FOIA cases") (citation omitted).

9("disclosure, not secrecy, is the dominant objectiv e of

FOIA") (citation omitted).

"Public access to government information is not, ho wever, `all encompassing.' " Sheet Metal Workers', Local N o. 9, 63 F.3d at 996 (citation omitted). The act "reflects a general philosophy of full agency disclosure unless informa tion is exempted under clearly delineated statutory languag e." Dep't of Defense, 510 U.S. at 494 (citations omitte d).

"Congress exempted nine categories of documents fro m the FOIA's broad disclosure requirements." Reporter s 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 clear ly unwarranted invasion of personal privacy; an d (7) records or information compiled for law enfo rcement purposes, but only to the extent that the pr oduction of

such law enforcement records or information . . . (C) could reasonably be expected to constitute a n 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 re quested 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 i nformation lies within the scope of a FOIA exemption . . . a court must balance the public interest in disclosu re 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 pu rpose of the FOIA,' which is `contributing significan tly to public understanding of the operations or activitie s of the government.'

10* * *

Third, whether an invasion of privacy is wa rranted cannot turn on the purposes for which the re quest for information is made. Because `Congress clear ly intended' the FOIA `to give any member of th e public as much right to disclosure as one with a speci al interest in a particular document,' except in certain cases involving claims of privilege, `the identity of the requesting party has no bearing on the merit s of his or her FOIA request.'

Id. at 495-96 (citations omitted).

With respect to the privacy interest protected:

the cases sometimes characterized as protect ing `privacy' have in fact involved at least two different

kinds of interests. One is the individual in terest in avoiding disclosure of personal matters, and another is the interest in independence in making certa in kinds of important decisions . . . . both the common law and the literal understandings of privacy encomp ass the

individual's control of information concerni ng his or her person.

Reporters Committee, 489 U.S. at 762-63 (citations omitted). See also Painting Indus., 26 F.3d at 1482 ("We cann ot limit

our evaluation of the effects of disclosure to the requesting party's particular purpose in seeking disclosure. W e must evaluate both public benefit and the potential inva sion 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 Co mmittee defines privacy as encompassing `the individual's c ontrol of information concerning his or her person.' That inf ormation includes the prosaic . . . as well as the intimate and potentially embarrassing").

Section 552(b)(7)(C) "provides greater protection f rom 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

11provides the same guidance in making this identific ation in

Exemption 7(C) and Exemption 6 cases"); Reporters Committee, 489 U.S. at 756 ("the standard for evalu ating 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 Commi ttee dealt with Exemption 7(C), its teachings apply to t he analogous provisions of Exemption 6 as well") (cita tion omitted).

Because S 552(b)(7)(C) provides greater protection, our analysis of S 552(b)(6) obviates the need to examin e the Department of Veterans Affairs's S 552(b)(7)(C) arg ument. See Sheet Metal Workers', Local No. 9, 63 F.3d at 9 98-99 ("Because we hold that exemption 6 protects the information sought from disclosure, we need not add ress 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 Exem ption 6 justifies the government's action in providing re dacted copies of certified payroll records requested by th e labor organizations, we need not reach the Exception 7(C) issue").

B.

1.

At present, International Bhd. of Elec. Workers Loc al Union No. 5 v. United States Dep't of Hous. and Urb an Dev., 852 F.2d 87 (3d Cir. 1988), provides the rule of de cision in this circuit. In IBEW, the union asked the Departme nt 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, rate s 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 di strict court granted summary judgment to the union, compel ling

HUD to furnish this information.

12We described the appropriate appellate inquiry as f ollows:

"to determine whether the information sought is sub ject to privacy protection and, if so, whether the invasion of privacy is `clearly warranted.' This inquiry involv es a balancing of public interest served by disclosure a gainst the harm resulting from the invasion of privacy." IBEW, 852

F.2d at 89.

With respect to the Social Security numbers, we fou nd a strong privacy interest: "the extensive use of Soci al Security numbers as universal identifiers in both the public and private sectors is one of the most serious manifest ations of privacy concerns in the nation." Id. (citations omi tted). We failed to discover any countervailing public intere st 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 warrant ed invasion of privacy and is therefore barred by exem ption 6."

Id.

But release of the names and addresses, we thought, implicated different privacy concerns:

First . . . individuals generally have a mea ningful interest in the privacy of information conce rning their homes which merits some protection. In parti cular, individuals have some privacy interest in th eir home addresses, although the invasion of privacy effected by

such disclosure is not as serious as it woul d be by the disclosure of more personal information. Sec ond, the employees have a privacy interest in their s alaries. This interest is not as great for employees of fe deral 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 p osted 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 s alaries.

Id. (citation omitted).

13We found the union's ability to monitor a contracto r's

compliance with -- and the awarding agencys' enforc ement of -- the Davis-Bacon Act a sufficiently strong countervailing public interest to warrant disclosur e.

[I]f the release of names and addresses of e mployees of government contractors makes it more likely that contractors will abide by the Act's requirem ents, 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 a uditing the representations of the contractor. If th e contractor misrepresents his weekly wage information, t he only way to determine if the Davis-Bacon act is b eing violated is to contact the contractor's empl oyees and to compare their responses to those given by th e contractor. We conclude, therefore, that the release of

the names and addresses would facilitate the Union's investigation of possible Davis-Bacon Act vi olations, and thereby would further the public interes t.

* * *

[T]he mere fact that federal agencies are di rectly responsible for enforcing the Davis-Bacon Ac t does not mean that the Union has no role to play in f urthering the public interest. If enforcement of the A ct is in the public interest, then more effective enforce ment of the Act is also in the public interest.

* * *

Moreover, the Union's interest in monitorin g HUD's

enforcement of the Davis Bacon Act is exactl y 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 t hat 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 A ct enforcement. In addition, we note that HUD h as

14neither offered an argument nor presented ev idence

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 omi tted).

2.

Subsequent to our decision in IBEW, the United Stat es 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 Committ ee For Freedom of the Press, 489 U.S. 749 (1989), and Unit ed States Dep't of Defense, et al. v. Federal Labor Re lations Auth., 510 U.S. 487 (1994). In Reporters Committee, a news correspondent and the Reporters Committee for Freed om of the Press unsuccessfully requested "rap sheets" -- documents containing descriptive information as wel l as a history of arrests, charges, convictions, and incar cerations -- from the Federal Bureau of Investigation. Findin g the privacy interests of private citizens with rap shee ts 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 pra ctical obscurity of rap-sheet information will alwa ys be high. When the subject of such rap sheet is a priv ate citizen

and when the information is in the Governmen t's control as a compilation, rather than as a r ecord of `what the Government is up to,' the privacy interest protected by Exemption 7(C) is in fact at it s apex while the FOIA based public interest in disclosure is at its nadir. Such a disparity on the scales of jus tice holds for a class of cases without regard to indiv idual circumstances; the standard virtues of brigh t line rules are thus present, and the difficulties atten dant 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

15citizen can reasonably be expected to invade that

citizen's privacy, and that when the request seeks`no official information' about a government age ncy, but merely records that the Government happens t o be storing, the invasion of privacy is `unwarra nted.'

Reporters Committee, 489 U.S. at 780.

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

disclosure of the home addresses of federal civil s ervice employees by their employing agency pursuant to a r equest made by the employees' collective bargaining repres entative under the Federal Service Labor Management Relation s Statute . . . would constitute a clearly unwarrante d invasion of the employees' personal privacy." Dep't of Defense, 510 U.S. at 489. The Supreme Court charact erized the public interest in disclosure of the addresses as "negligible": "Disclosure of the addresses might al low the unions to communicate more effectively with employe es, but it would not appreciably further the citizens r ight to be informed about what their government is up to. Inde ed, such disclosure would reveal little or nothing abou t the employing agencies or their activities." Id. at 497

.

The employees' privacy interests in the non-disclos ure of their home addresses, however, caused greater conce rn:

Because a very slight privacy interest would suffice to outweigh the relevant public interest, we ne ed not be exact in our quantification of the privacy i nterest. It is enough for present purposes to observe that the employees' interest in nondisclosure is not

insubstantial.

* * *

Whatever the reason that these employees hav e chosen not to become members of the union or to pro vide the union with their addresses, however, it is c lear that they have some non trivial privacy interest in nondisclosure, and in avoiding the influx of union related mail, and, perhaps, union related te lephone calls or visits, that would follow disclosur e.

Many people simply do not want to be distur bed at home by work related matters. Employees can lessen

16the chance of such unwanted contacts by not revealing

their addresses to their exclusive represent ative. Even if the direct union /employee communica tion facilitated by the disclosure of home addres ses were limited to mailings, this does not lessen th e interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching the m at their homes. We are reluctant to disparage the pri vacy of the home, which is accorded special consideratio n in our Constitution, laws, and traditions. Moreover , when we consider that other parties, such as commerc ial advertisers and solicitors, must have the sa me access under FOIA as the unions to the employee add ress lists sought in this case it is clear that the ind ividual privacy interest that would be protected by nondisclosure is far from insignificant.

Id. at 500-01.

Reporters Committee and Dep't of Defense demonstrat e both an increased appreciation for employees' priva cy and

a concomitant decrease in the belief that disclosur e of personal information for the purpose of monitoring DavisBacon Act compliance serves a public interest.

3.

Courts of appeals decisions following Reporters Com mittee and Dep't of Defense express the same view with res pect to the relevant private and public interests. In Sheet Metal

Workers Int'l Assoc. Local No. 9 v. United States A ir 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 certifi ed payrolls and apprentice registration lists.

[T]hree circuits have held that employees o f private contractors performing federal construction projects have a substantial privacy interest in perso nalfinancial information with personal identifiers linkin g the

individual to the financial information. The y have further held that that interest outweighs an y recognized public interest in the disclosure of such

information. Whether viewed as relevant to t he

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

appropriate balance between that interest an d the public interest in disclosure, we see no pri ncipled distinction between names alone as personal identifiers, or names and addresses. Either one provides the critical connection between per sonal

information and the individual to whom that

information relates.

Id. at 998.

Painting Indus. of Haw. Market Recovery Fund v. Uni ted States Dep't of Air Force, 26 F.3d 1479 (9th Cir. 1 994) considered similar information private:

In the cases before us, requesters seek a li st of people engaged in the construction trade, broken in to their particular occupational classification. Undo ubtedly, such a list would be of interest to people w orking 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 inva sion of the workers' right to be let alone.

* * *

The requesters here not only seek names and addresses, but also particularized informati on about wages. We agree with those circuits that hav e considered the issue that significant privac y interests are implicated by the release of this inform ation.

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 recor ds, it invoked S 552(b)(6) and withheld names, Social Secu rity numbers, and home addresses. The Court of Appeals f or the District of Columbia Circuit found disclosure w ould invade the employees' privacy, contravening the pur pose 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 i n their

18expectations of privacy because that same informati on

would also have to be provided, for example, to cre ditors, salesmen, and union organizers." Id. at 1303 (citat ion omitted). The possibility of this intrusion outweig hed any public interest in disclosure: "As information that might reveal the failure of contractors to comply with re levant laws does not in itself cast light on what HUD is u p to, we can find no obvious public interest in its disclosu re that is relevant to this analysis." Id. (citation omitted).

In Hopkins v. United States Dep't of Hous. and Urba n Dev., 929 F.2d 81 (2d Cir. 1991) the union requeste d 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 numb ers.

Siding with HUD, the Court of Appeals for the Secon d Circuit found "individual private employees have a significant privacy interest in avoiding disclosure of their names and addresses, particularly where, as here, t he names and addresses would be coupled with personal financial information." Id. at 87 (citations omitte d). The court ultimately considered disclosure unwarranted:

disclosure of the names and addresses sought by appellant would shed no light on HUD's perfo rmance in enforcing the prevailing wage laws. Rather, disclosure of this information would serve the public i nterest only

insofar as it would allow the Union to conta ct individual employees, who may then dispute t he accuracy of the data reflected in the record s, and so reveal violations of the prevailing wage law s that HUD, through proper diligence, should have detect ed. Were we to compel disclosure of personal informat ion with so attenuated a relationship to governmental ac tivity, however, we would open the door to disclosur e 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 outwei ghed by the employees' privacy interests "in controlling dissemination of their names, addresses and wage information. Indeed, the likelihood that the union would

19use the requested identifying information to contac t

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 Suprem e Court in Reporters Committee and Dep't of Defense a nd 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 pr ior panel." Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996) (citations omitted).4 Nonetheless, "a panel may ree valuate a precedent in light of intervening authority and ame ndments to statutes or regulations. Our sister circuits abi de by that self-same principle." Id. (citing, inter alia, Will iams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.)("An existing panel decision may be undermined by controlling aut hority, subsequently announced, such as an opinion of the Supreme Court, an en banc opinion of the circuit co urt, or a statutory overruling"), cert. denied, 116 S. Ct. 51 (1995)). See also Planned Parenthood of S.E. Pa. v. Casey, 9 47 F.2d 682, 698 (3d Cir. 1991) ("a change [by the Supreme Court] in the legal test or standard governing a particula r 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. 8 33 (1992).

Although the intervening decisions from the Supreme Court in Reporters Committee and Dep't of Defense d o not answer the precise issue presented here, their reas oning

___________________________________________________ ______________

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

the holding of a panel in a reported opinion is binding on subsequent panels. Thus, no subsequent panel overrules the hol ding in a published opinion of a previous panel. Court in banc consider ation is required to
do so").

20and holdings clearly counsel re-examination of our

reasoning and holdings in IBEW.5

2.

The union contends there is a strong public interes t in monitoring agency enforcement of the prevailing wag e law because the information sought contributes signific antly to public understanding of the operations or activitie s of the government. Congress, the union argues, enacted bot h 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 a ny mistake or omission that government agencies might make during such enforcement activities. Redacted payrol ls, 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 a ddresses are available from other public sources; (2) the em ployees' wage scales are posted publicly at the job site; an d (3) the employees received no promises of confidentiality w ith respect to the requested data.

a.

We believe the union overestimates the public inter est to be served by disclosure. "[T]he only relevant publi c 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 understandi ng of the operations or activities of the government." Dep't of Defense, 510 U.S. at 495 (citations omitted). The r elease of names, addresses, and similar "private" information reveals little, if anything, about the operations of the De partment of

___________________________________________________ ______________

5. We are not alone in recognizing that the conclus ion 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 omit ted); Hopkins, 929 F.2d

at 87 (IBEW "[w]as decided prior to Reporters Committe e . . . and [is] of doubtful authority in light of that opinion").

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

addresses . . . would not appreciably further the c itizens' right to be informed about what their government is up to. Indeed, such disclosure would reveal little or noth ing about the employing agencies or their activities"); Paint ing Indus., 26 F.3d at 1486 (referring to "the marginal additio nal

usefulness that the names and addresses would serve in uncovering `what the government is up to' "); Paint ing and Drywall, 936 F.2d at 1303 ("As information that mig ht reveal the failure of contractors to comply with re levant laws does not in itself cast light on what HUD is u p to, we can find no obvious public interest in its disclosu re that is relevant to this analysis"); Hopkins, 929 F.2d at 8 8 ("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 nin e years ago, the Supreme Court has refined and reform ulated the applicable standard measuring the "core purpose " of the Freedom of Information Act, namely contributing significantly to public understanding of the operat ions or activities of government. After the decisions in Re porters Committee and Department of Defense, no court of ap peals has given much weight to the monitoring function. W e are compelled to do likewise. In a broad sense of cours e, the public has an interest in whether a federal agency fairly and adequately enforces prevailing wage laws. See H opkins, 929 F.2d at 88 ("While assertions of public interes t in `monitoring' government operations `have not been v iewed favorably by the courts,' we accept this interest a s within the ambit of public interest recognized in Reporter s Committee") (citations omitted). But even assuming "monitoring" government operations, to some degree falls within the scope of public interest enunciated in R eporters Committee, in this case, providing the requested

information -- the names and addresses of the indiv idual workers -- would not enhance agency enforcement of prevailing wage laws.

Some Davis-Bacon Act violations appear clearly on t he face of the payroll records regardless whether name s are

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

a lower rate than the prevailing rate for their cla ssification. To insure compliance, the union need only compare j ob classifications to pay rates to determine if the co ntractor pays its employees the prevailing wage. Furthermore , other violations remain undetected irrespective whether n ames 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 benefici al effect on the union's ability to detect these viola tions.

Moreover, the ability of the union to determine whe ther private contractors pay their workers prevailing wa ges does not mean that unlimited disclosure of payroll recor ds is in the public interest. See Hopkins, 929 F.2d at 88 (" whatever public interest there may be in knowing whether pri vate parties are violating the law is not the sort of pu blic interest advanced by the FOIA, and has no weight in Exemptio n 6 balancing"). We are reluctant to overstate the publ ic interest served by disclosure in light of diminishi ng importance attributed to the monitoring function an d the unproven ability of the requested information to as sist in the enforcement of prevailing wage laws. Disclosure will not contribute significantly to the public's understand ing of government activities.

We also believe the union enjoys alternate, less in trusive, methods by which it may collect the desired informa tion including, but not limited to, (1) dispensing flier s 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 e xisting information to compare job classifications with pay rates. See Painting Indus., 26 F.3d at 1485 ("The requeste rs here have less intrusive means of procuring the informat ion 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 acce ss to current workers -- face to face conversation") (cit ation omitted).

23b.

Against a weak public interest in disclosure, we we igh 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 Co urt in Reporters Committee and Dep't of Defense, our opini on in IBEW may have underestimated the importance of employees' privacy interests violated by the dissem ination of this information. Recent appellate decisions hav e 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 th e 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 th e FOIA had in mind . . . . provisions, for deletion of ide ntifying references . . . reflect a congressional understand ing that disclosure of records containing personal details a bout private citizens can infringe significant privacy i nterests"); Painting and Drywall, 936 F.2d at 1303 ("The dissem ination of this sort of information about private citizens is not what the framers of the FOIA had in mind") (citation omi tted); Hopkins, 929 F.2d at 88 ("Were we to compel disclos ure of personal information with so attenuated a relations hip to governmental activity, however, we would open the d oor to disclosure of virtually all personal information, t hereby eviscerating the FOIA privacy exemptions").

We recognize the Supreme Court described the intere st of bargaining unit employees in non-disclosure of thei r home addresses only as "not insubstantial." Dep't of Def ense, 510 U.S. at 500. Nonetheless, even a slight privacy int erest will tip the scales in favor of non-disclosure. See id. ("Because a very slight privacy interest would suffice to out weigh the relevant public interest, we need not be exact in o ur quantification of the privacy interest").

The significant privacy concerns attached to the ho me and employees' interest in avoiding a barrage of un solicited contact weighs heavily in our consideration. See id . at 501 ("[employees] have some non-trivial privacy interes t in

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

mail, and, perhaps, union-related telephone calls o r visits,

that would follow disclosure . . . . We are relucta nt to disparage the privacy of the home, which is accorde d special consideration in our Constitution, laws, an d traditions") (citations omitted) (emphasis deleted) ; Hopkins, 929 F.2d at 88 ("the likelihood that the Union woul d use the requested identifying information to contact em ployees at their homes dramatically increases the already significant threat to the employees' privacy intere sts that disclosure of this information would entail").

At the same time, we find unconvincing the union's argument that employees have waived their privacy r ights because their addresses are available from other pu blic sources and are posted publicly at the job site.

It is true that home addresses often are pub licly available through sources such as telephone directories and voter registration lists, but in an orga nized society,

there are few facts that are not at one time or another divulged to another. The privacy interest pr otected by Exemption 6 encompasses the individuals' con trol of information concerning his or her person. An individual's interest in controlling the dis semination 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 t he public as much right to disclosure as one with a sp ecial interest in a particular document . . . the identit y of the requesting party has no bearing on the merits of hi s or her FOIA request") (citation omitted). It is possible t hat the information requested may be misappropriated by marketers, creditors, solicitors, and commercial ad vertisers, eroding the employees' expectation of privacy. See id. at 501 ("when we consider that other parties, such as commercial advertisers and solicitors, must have th e same access under FOIA as the unions to the employee add ress

25lists . . . 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 t o the use of the list by marketers and a concomitant invasion of the workers' right to be let alone"); Painting and Dryw all, 936 F.2d at 1303 (if "we were to find that the Fund is entitled to receive the information sought, the workers woul d experience a significant diminution in their expect ations of privacy because that same information would also ha ve to be provided, for example, to creditors, salesmen, a nd union organizers"). The prospect of this unwarranted intr usion counsels against disclosure.

IV.

The privacy interest of employees in the non-disclo sure of their names and addresses substantially outweighs t he slight public interest put forth by the union. Diss emination 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 pub lic interest, it is too attenuated to warrant a contrar y 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 Bo ro employees from the information requested by the uni on.

Accordingly, we will reverse the judgment of the di strict 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