John Kasprowicz, Case No. VFA-0660, April 12, 2001

Case No. VFA-0660, 28 DOE ¶ 80,161

April 12, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:John Kasprowicz

Date of Filing:March 19, 2001

Case Number: VFA-0660

This decision addresses the Freedom of Information Act (FOIA) appeal filed by John Kasprowicz (appellant) pursuant to 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) at 10 C.F.R. Part 1004. For the reasons set forth below, the appeal will be denied.

I. Background

Appellant filed a FOIA request with the DOE Chicago Operations Office (Chicago Office), in which he sought the individual dollar amounts of Business Plan Awards for fiscal year 2000 (the FY 2000 BP Awards) for all Chicago Office GS-13 and GS-14 employees, separated by division, as well as “all awards of any kind given to individuals in [the Technical and Administrative Services Group and the Safety and Technical Services Group (TAS-STS)] in the past [six] months by name and dollar amount.” In its response, the Chicago Office released the dollar amounts of the GS-13 and GS- 14 FY 2000 BP Awards broken down by groups only, and withheld from the list the Office of the Manager and the Ames Group, the division-by-division breakdown, and the names of and dollar amounts given to employees in TAS-STS (collectively, “the withheld information”). Citing Exemption 6 of the FOIA, the Chicago Office explained that “release of [the withheld] information will allow with minimal analysis and process of elimination, the identification of individual business plan awards by employee.” The Chicago Office asserted that “[t]hese records are withholdable from third parties under [the FOIA] Exemption 6, 5 U.S.C. 552(b)(6), [because] the employees’ privacy interest in their awards clearly outweighs any minute public interest, if any, which might exist in discovering the individuals’ award amounts.”

In this appeal, appellant contends that although “[s]alary [and award] information may be alloyed with a significant privacy interest in the private sector, [it] is not granted such interest in federal employment, since the taxpayer has a weightier interest in that same employee’s salary.” Appeal at 2 (emphasis omitted). Appellant further argues that “the Office of Personnel Management (OPM)

has deemed [the withheld information] as releasable under FOIA” and cites OPM regulation, 5 C.F.R. § 293.311(a), which states, in relevant part:

The following information . . . about most present and former Federal employees, is available to the public: (1) Name; (2) Present and past position titles and occupational series; (3) Present and past grades; (4) Present and past annual salary (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials).”

Appeal at 1-2. Finally, appellant asserts, the Chicago Office’s determination not to release the awards received by TAS-STS employees raises the suspicion “that they are funneling awards to their friends through various means/methods” and “a presumption of disclosure is warranted where there may be significant evidence of corruption.” Appeal at 4. Appellant seeks release of the withheld material.

II. Applicable Legal Standards

With nine exemptions, the FOIA requires federal agencies to release documents to the public upon request. Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(6); 10 C.F.R. § 1004.10(b)(6). “Similar files” include all documents which contain information that applies to a particular individual. Department of State v. Washington Post, 456 U.S. 595, 599 (1982). If documents are of the type described in Exemption 6, then an agency must undertake a three step analysis, as enumerated by the Supreme Court in Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495-96 (1994), in determining whether Exemption 6's protection applies. First, an agency must determine whether a privacy interest would be invaded by disclosure of the record. If no privacy interest is identified, the record may not be withheld under Exemption 6. See also Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. Finally, the agency must weigh the identified privacy interests against the public interest in order to determine whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.

III. Analysis

Application of the foregoing principles to this case reveals that Exemption 6 properly protects the withheld information. As a threshold matter, we find that withheld information applies to particular individuals and is therefore within the broad definition of a “similar file” for purposes of Exemption 6.

We next find, and agree with the Chicago Office, that there is a privacy interest at stake. Employees have a privacy interest in maintaining the confidentiality of their salaries and awards, because disclosure of the withheld information “would allow direct comparison between employee awards and almost certainly incite jealousy in those employees receiving lower awards.” See Ripskis, 746 F.2d at 3.

We disagree with the Chicago Office’s determination, however, that there is no public interest in the withheld information. We find that there is. In Robert J. Ylimaki, 28 DOE _______ (VFA-0651) (Mar. 23, 2001), which involved a FOIA appeal from the Chicago Office’s withholding of bonus information for specific employees, “we recognize[d] that federal employees are public servants, and that the public has a significant interest in knowing how its employees are paid.” Nevertheless, in balancing the privacy and public interests to find that Exemption 6 shielded the bonus information, we stated the following:

[T]he Chicago Office has demonstrated that there is a substantial possibility that harassment of GS-15 employees would result from this type of information. Specifically, the Chicago Office has cited specific instances of inappropriate behavior by some of its employees. . . . Such harassment would disrupt the functioning of the Chicago Office and would adversely affect its ability to perform the responsibilities with which it is charged. . . . Because the potential for harassment . . . outweighs the public interest in disclosure, we will deny Mr. Ylimaki’s Appeal.

Here, as with the bonus information at issue in Ylimaki, the public has a significant interest in knowing how its employees are paid, including salaries and awards. However, also as in Ylimaki, the privacy interest in the withheld information overrides the public interest in disclosure. Because this appeal arises from a Chicago Office determination and regards salary and award information, our reasoning set forth in Ylimaki is applicable here. There is a substantial possibility that harassment of Chicago Office GS-13 and GS-14 employees would result from release of the withheld information, and this potential for harassment outweighs the public interest involved. See also, William Hyde, 18 DOE ¶ 80,102 (1988) (finding potential for harassment of employees is sufficient justification for withholding information under Exemption 6). The withheld information is therefore protected by Exemption 6.

We reject appellant’s assertion that OPM regulation, 5 C.F.R. § 293.311(a), requires disclosure of the withheld information. Pursuant to Section 293.311(b), information described in paragraph (a) (as cited supra) need not be released if it would “otherwise be protected from mandatory disclosure under an exemption of the FOIA.” Because we find that Exemption 6 properly applies to this case, the withheld information is exempt from disclosure under 5 C.F.R. § 293.311(b).

We also reject appellant’s assertion that “a presumption of disclosure is warranted where there may be significant evidence of corruption.” Appeal at 4. “Any general public interest in mere allegations of wrongdoing does not outweigh an individual’s privacy interest in unwarranted association with such allegations.” Barvick v. Cisneros, 941 F. Supp. 1015, 1022 (D. Kan. 1996) (citation omitted).

IV. Conclusion

Based upon the foregoing, we find that the significant privacy interest in the withheld information overrides the public interest involved and that therefore the information may be properly withheld under Exemption 6.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed on March 19, 2001, by John Kasprowicz, Case No. VFA-0660, is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 12, 2001