# Akron Standard Division of Eagle-Picher Industries, Inc. v. Raymond Donovan, Secretary of U.S. Department of Labor

> Court of Appeals for the Sixth Circuit · January 8, 1986 · 780 F.2d 568

URL: https://www.frixlaw.com/law-library/cases/9474374

## Case

- **Full name:** AKRON STANDARD DIVISION OF EAGLE-PICHER INDUSTRIES, INC., Plaintiff-Appellee, v. Raymond DONOVAN, Secretary of U.S. Department of Labor, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 8, 1986
- **Citations:** 780 F.2d 568; 95 A.L.R. Fed. 823; 12 OSHC (BNA) 1634; 1986 U.S. App. LEXIS 21693
- **Precedential status:** Published
- **Opinion:** Concurring in part by Celebrezze
- **Judges:** Merritt, Wellford, Celebrezze
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CELEBREZZE, Senior Circuit
Judge, concurring in part and dissenting in part.
I concur in part II of the majority’s opinion. However, since I believe that the majority incorrectly concludes that Palmer lacks a privacy interest in the investigatory records compiled by the Occupational Safety and Health Administration (OSHA), I respectfully dissent to part I of the majority’s opinion.
The focus of this case, as the majority indicates, is upon records which OSHA compiled during an investigation to discern whether Palmer was discharged by his employer, Lectromelt Casting and Machinery Company (Lectromelt), a division of Akron Standard Division of Eagle-Picher Industries (Akron Standard), for filing a previous complaint with OSHA, which resulted in OSHA citing Lectromelt for several violations, or for absenteeism and refusal to obey orders, as Lectromelt purported. After completing its investigation, OSHA declined to pursue the matter. The General Counsel of the National Labor Relations Board (“NLRB”), however, determined after its investigation to file charges against Lectromelt under the National Labor Relations Act; those proceedings are still pending. Akron Standard, subsequently, requested the disclosure of the documents compiled during OSHA’s investigation under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982). The district court granted Akron Standard's request for disclosure reasoning that Palmer lacked any cognizable “privacy interest” under Section 552(b)(7)(C), 5 U.S.C. § 552 (b)(7)(C) (1982), in the investigatory files.
Investigatory records compiled for law enforcement purposes are exempt from disclosure under the FOIA to the extent that their production would “constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(7)(C) (1982) (emphasis added). The question in this case is whether Palmer has a privacy interest in the investigatory records which relate to his job competency. Although “personal privacy” is not defined by the FOIA, the legislative history of the analogous “clearly unwarranted invasion of personal privacy” exemption of Section 552(b)(6), 5 U.S.C. § 552 (b)(6) (1982), is of some aid in determining the parameters of privacy interests protected by Section 552(b)(7)(C). The Senate Report drew a distinction between, “For example, health, welfare and selective service records [which] are highly personal to the persons involved, [and] facts concerning the award of a pension or benefits [which] should be disclosed to the public.” S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). Congress intended to prevent the disclosure of “intimate details” whose revelation might harm a private individual. H.Rep. No. 1497, 89th Cong., 2d Sess. 11, reprinted in 1966 U.S.Code Cong. & Ad. News 2418, 2428. Thus, objective data “such as place of birth, date of birth, date of marriage, employment history ... is not normally regarded as highly personal.” United States Department of State v. Washington Post Co., 456 U.S. 595, 600 , 102 S.Ct. 1957, 1960 , 72 L.Ed.2d 358 (1982); see Washington Post Co. v. United States Department of Health and Human Services, 690 F.2d 252, 261 (D.C.Cir.1982) (disclosure of list of past employers only raises “minimal” privacy interests). On the other hand, subjective evaluations of performance, like disciplinary records, raise important privacy concerns. See Department of the Air Force v. Rose, 425 U.S. 352 , 96 S.Ct. 1592 , 48 L.Ed.2d 11 (1976).
This case concerns remarks made to OSHA investigators by Palmer’s co-workers pertaining to his job performance. Subjective job evaluations made by employers clearly raise privacy concerns. Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C.Cir.1984) (per curiam); Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 815 (S.D.N.Y.1978); Celmins v. United States Department of Treasury, Internal Revenue Service, 457 F.Supp. 13, 17 (D.D.C.1977); see *575 Rose, 425 U.S. at 377 , 96 S.Ct. at 1606 (disclosure of an “evaluations of ... work performance” raise privacy interests). Likewise, information concerning an employee’s individual career has been described as raising “weighty” privacy interests. Columbia Packing Co. v. United States Department of Agriculture, 417 F.Supp. 651, 654 (D.Mass.1976), aff’d, 563 F.2d 495 (1st Cir.1977); see Core v. United States Postal Service, 730 F.2d 946, 948-49 (4th Cir.1984) (list of unsuccessful applicants protected by Section 522(b)(6)). The rationale for protecting information of this type is “[t]he sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence.” Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 , 99 S.Ct. 1123, 1132 , 59 L.Ed.2d 333 (1979). Further, performance evaluations are inherently subjective and ambiguous; reasonable people may differ on how well an employee is doing his job, depending upon which factors, like output, attitude, and punctuality, the evaluator deems the most significant. Considered in this light, I see no basis to distinguish between an employer’s and a co-worker’s evaluation of job performance. Comments upon job performance by either employers or co-employees are inherently subjective, possibly biased, and likely to cause embarrassment or economic injury upon disclosure. Accordingly, I believe that comments by co-workers pertaining to a coworker’s job performance raise substantial privacy interests. Nevertheless, the majority concludes that the investigatory files in this case should be disclosed, relying upon Common Cause v. NRC, 674 F.2d 921 (D.C.Cir.1982), and reasoning that the NLRB proceedings have put Palmer’s job competency in the public domain.
The majority’s reliance upon Common Cause is misplaced. Common Cause concerned a decision by the Nuclear Regulatory Commission to hold closed meetings concerning the agency’s budget. Common Cause, 674 F.2d at 923. The District of Columbia Court of Appeals held that such meetings were not exempt under Section 552(b)(6), reasoning that the FOIA “was not intended to shelter substandard performance by government executives. ” Common Cause, 674 F.2d at 938 (emphasis added). The court’s holding in this regard was supported by the Senate Report which indicated that Section 552(b)(6) should not be interpreted to shield discussions concerning the competency of a government official. Common Cause, 674 F.2d at 938. In contrast, the case at bar concerns not only a private employee but also a lower-level private employee. See Common Cause, 674 F.2d at 938 (Section 552(b)(6) “provides greater protection to private individuals ... and to lower-level government employees”). Further, no legislative history indicates that discussions concerning á lower-level private employee’s job proficiency is outside the protection of Section 552(b)(7). Finally, the District of Columbia Court of Appeals has not extended the holding of Common Cause to discussions pertaining to the competency of private employees. Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C.Cir.1984). The majority’s reliance upon Common Cause is, accordingly, without merit.
Next, the majority reasons that since Palmer’s job competency has been fully explored at a prior NLRB proceeding, these matters are within the public domain. The majority’s entire discussion of this issue, however, begins with the incorrect assertion that, “The thrust of the investigation in respect to an OSHA violation complaint was not upon Palmer’s job performance but rather upon whether Akron Standard was guilty of violations of OSHA safety related standards pertaining to safety in the workplace.” In fact, OSHA’s investigation concerned whether Palmer was discharged for filing a complaint with OSHA or was fired for absenteeism and failure to obey orders. Consequently, the crux of the investigation was Palmer’s job performance.
The majority contends that since Palmer’s job competency has been fully explored before the NLRB, these matters are in the public domain. This contention, however, misses the point. The issue, in this case, *576 isn’t whether Palmer has a privacy interest in information concerning his job competency which has been made public, but rather is whether Palmer has a privacy interest in information relating to his job performance which has not been made public. The fact that the majority of the statements made to the OSHA investigators have been made public in no way affects Palmer’s privacy interest in the statements which have not been made public. See Kiraly v. FBI, 728 F.2d 273 , 280 (6th Cir.1984) (“The mere act of testifying at trial therefore should not open private files to public disclosure.”); Brown v. FBI, 658 F.2d 71 , 75 (2d Cir.1981) (“Mr. Brown’s assertion that, by testifying, Ms. Shepardson has waived her right to privacy is without foundation in law or logic____ While it is true that Ms. Shep-ardson cannot suppress those facts which have become a matter of public record, she retains her right to privacy as to other personal matters.”)
The majority finally seeks to support its position by reasoning that “there is no compelling interest” to withhold the information under Section 552(b)(7)(C) and that “[t]he public's interest in disclosure concerning the nature and extent of the agency’s investigation” is not insignificant. The problem with these statements is that they represent a balancing between Palmer’s privacy interest and the public’s interest in disclosure. This issue simply is not before this Court since the district court concluded that Palmer lacked any privacy interest at all in the records.
For the foregoing reasons, I would affirm in part, reverse in part, and remand this case to the district court to balance Palmer’s privacy interest against the public interest in disclosure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474374. Public record. Not legal advice.