Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TOMSCHA v. GIORGIANNI

June 2, 2004.

LARRY TOMSCHA, Plaintiff, -V- JOSEPH GIORGIANNI, of General Services Administration, Defendant


The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On September 5, 2003, pro se plaintiff Larry Tomscha ("Tomscha") filed this action against Joseph Giorgianni ("Giorgianni") of the General Services Administration ("GSA" or the "agency"), alleging that the GSA failed to comply with the Freedom of Information Act ("FOIA" or the "Act"), 5 U.S.C. § 552, by refusing to disclose the underlying justifications for the grant of cash awards made to a fellow GSA employee from 1996 through 2002, and for redacting the amount of one particular award made to that employee. The GSA now moves to substitute itself as the named defendant, and for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons stated below, the motion is granted.

 Background

  The following facts are taken from evidence submitted by the parties in connection with this motion. On January 31, 2003, Tomscha, employed by the GSA as a contract specialist, made a FOIA request to the Regional FOIA Officer of GSA's Region 2. Tomscha's request stated, "Please provide me with the cash award amounts, and the reasons for those amounts given to employee David McDonald [("McDonald")] for the years 1996 though 2002."*fn1 Tomscha claims that McDonald received an average of $6,000 per year in awards over a six-year period, while during the same time period Tomscha received in total approximately $150, and the "regular working employee" received an average total award of $1,000-4,000 in cash.

  Jeremy Boozikee ("Boozikee"), a Human Resources Specialist for the GSA, conducted a search in response to Tomscha's FOIA request. The search encompassed the following sources: (1) GSA's Comprehensive Human Resources Information System ("CHRIS") Database, which contains employment-related data for Region 2 GSA employees. The CHRIS Database stores information relating to the gross dollar amount of awards received by employees, but not the justifications for the awards; (2) a GSA National Payroll Center ("Payroll Center") database located in Region 6, which maintains award information issued to individual employees, including McDonald; and (3) each authorizing official for McDonald's cash awards. Boozikee sent e-mail messages to the authorizing officials asking for copies of their justification for each of McDonald's awards.

  The information obtained from these sources included: (i) a list from the CHRIS Database of 42 awards provided to McDonald, with information about the date, type and amount of these awards; and (ii) a report from the Payroll Center that included information concerning 38 awards provided to McDonald. All but an award dated April 25, 2000, appeared on the CHRIS Database list. Seven of the awards listed on the Payroll Center report also included information concerning the justification for the award. Authorizing officials for five of the awards to McDonald also provided their justifications.

  In a letter to Tomscha dated April 1, GSA attached a copy of the computer printout from the CHRIS Database. The list provided the dates and gross cash amounts of 41 awards received by McDonald from 1996 through 2002, and provided the date but redacted the amount of a June 26, 1996 Performance Award ("Performance Award") included on the list.*fn2 The GSA did not provide a copy of the Payroll Center report with its April 1 letter.

  The April 1 letter also informed Tomscha that it had found several award justifications, but that the agency was withholding such documents based on the FOIA exemption for "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) ("Exemption 6"). The GSA represented that disclosure of the award justifications would constitute an invasion of McDonald's privacy that was not outweighed by any public interest. The GSA applied the same rationale to withholding the amount of the Performance Award, reasoning that the award amount could allow a "mathematical linkage" to McDonald's performance appraisal.

  The GSA subsequently discovered that the April 25, 2000 award referenced in the Payroll Center report was not included on the CHRIS Database list. In a letter dated February 26, the agency supplemented its previous response to Tomscha's FOIA request by producing the Payroll Center report, but redacting the award justifications as well as other non-responsive information contained in the report. The GSA again cited the strength of McDonald's privacy interest.

  Since its responses to Tomscha's request, GSA has received additional documentation providing justifications for six awards received by McDonald between 1996 and 2002. The agency has determined that any public interest in the disclosure of these award justifications is outweighed by McDonald's privacy interest in the information.

  On April 11, Tomscha appealed to GSA's FOIA Office the April 1 determination not to provide justifications for the McDonald awards. Tomscha attached to his appeal a GSA instructional letter, OAD IL-97-1, dated January 16, 1997 ("Instructional Letter"). The Instructional Letter states, in pertinent part,
Managers and supervisors must make every effort to ensure that awards are given in an equitable manner. Some ways to accomplish this include:
[. . .]
(c) Widely publicizing who receives awards and why awards are given. This will provide employees with needed information regarding what kind of performance is valued, and thus rewarded, in an organization. Awards that are given without publicity may be perceived by employees as resulting from a process that is inherently unfair. . . ."
(Emphasis supplied.) Tomscha's appeal was denied in a letter dated May 19. The panel upheld the agency's determination that the award justifications, as well as the cash amount of the Performance Award, were exempted from disclosure under Exemption 6 to the FOIA. With respect to the Performance Award, GSA stated that; McDonald "has a personal privacy interest in his performance appraisal, which the performance amount reflects, and there is no public interest to be served by disclosure that outweighs the personal privacy interest in non-disclosure." The GSA also explained that the provision of the Instructional Letter upon which Tomscha relied
 
is merely a suggested tool for improving the GSA awards program and gives a manager or supervisor the option of publicizing such information. Should a manager or supervisor exercise this option, however, information that would reveal the performance appraisal or justification upon which the award is based should not be released. This is to protect the privacy interest of employees.
  The GSA now moves to dismiss Giorgianni from this action, to substitute GSA as a named defendant, and for summary judgment. In his opposition, Tomscha raises for the first time allegations that GSA has mismanaged its awards program.*fn3 In reply to Tomscha's opposition, GSA submits additional declarations by Ronald L. Davis, another Human Resource Specialist with the GSA, and Michael S. Melloy, an accountant for the Payroll Center.

  ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.