United States District Court, S.D. New York
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.
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
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
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
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
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
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
I. Substitution of the GSA as a Named Defendant
FOIA grants district courts "jurisdiction to enjoin the agency from
withholding agency records improperly withheld from complainant.,"
5 U.S.C. § 552 (a)(4)(B). The term "agency" is defined to include
"any executive department . . . or other establishment in the executive
branch of the Government (including the Executive Office of the President), or any
independent regulatory agency.'' 5 U.S.C. § 552 (f). This statute
only authorizes FOIA claims against agencies, not individuals. See,
e.g., Webb v. Ashburn, No. 96 Civ. 325 (SAS), 1997 WL 118355, at *5
(S.D.N.Y. Mar. 17, 1997); Williams v. McCausland, 791 F. Supp. 992,
1001 (S.D.N.Y. 1992). Accordingly, GSA's motion to dismiss
Giorgianni from this action and to substitute GSA as the named defendant
II. The FOIA Claim
The agency's response to a FOIA request is subject to de novo
judicial review. See 5 U.S.C. § 552 (a)(4)(B). To prevail
on a motion for summary judgment in a FOIA case, the defending agency
bears the burden of showing that "its search was adequate and that any
withheld documents fall within an exemption to the FOIA." Carney v.
Department of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Affidavits
or declarations showing that the agency has conducted a "thorough search"
for the requested records, and "giving reasonably detailed explanations"
for why withheld documents fall within the particular exemption are
sufficient to sustain the agency's burden. Id.; see also
Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 488-89 (2d
Cir. 1999). Affidavits submitted by an agency are "accorded a presumption
of good faith." Grand Central, 166 F.3d at 489 (citation
FOIA adopts a policy that "strongly" favors disclosure of information
in the possession of the federal government. Halpern v. Federal Bureau of Investigation, 181 F.3d 279, 286 (2d
Cir. 1999). In recognition that FOIA's policy of disclosure may at times
conflict with other policies, the Act exempts nine categories of
documents from its disclosure provisions. Any information "falling within
the terms of these exemptions need not be disclosed." Id. at
287. The exemptions are to be "narrowly construed with doubts resolved in
favor of disclosure." Id. (citation omitted). See also
Tigue v. United States Dep't of Justice, 312 F.3d 70, 76 (2d Cir.
Exemption 6, the FOIA exemption at issue here, provides that the Act's
disclosure requirements do not apply to "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).
The primary purpose of Exemption 6 is to "protect individuals from the
injury and embarrassment that can result from the unnecessary disclosure
of personal information." United States Dep't of State v. Washington
Post Co., 456 U.S. 595, 599 (1982). Courts must determine whether
the release of the information would "constitute a clearly unwarranted
invasion of that person's privacy." Id. at 602.
To prevail on an Exemption 6 claim, the Government must demonstrate
that the subject documents come from the type of files that are
statutorily protected, and that, on balance, the individual's right of
privacy outweighs "the basic policy of opening agency action to the light
of public scrutiny." United States Dep't of State v. Ray,
502 U.S. 164, 175 (1991) (citation omitted); see also Federal Labor Relations Authority v. United
States Dep't of Veterans Affairs, 958 F.2d 503, 505 (2d Cir. 1992).
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." United States Dep't
of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 495
(1994) (citation omitted).
The GSA has shown through Boozikee's affidavit that it conducted a
thorough search in response to Tomscha's FOIA request.*fn4 Indeed,
Tomscha did not challenge the adequacy of the agency's search in his
administrative appeal to GSA's FOIA Office, and does not question the
thoroughness now. Accordingly, the only real inquiry in this case is
whether the redacted documents fall within Exemption 6.
As a threshold matter, the justifications underlying McDonald's awards,
and the amount of the Performance award, qualify as either "personnel" or
"similar" files under the exemption. The withheld information constitutes
part of McDonald's personnel records, since the awards directly relate to
his employment. Even if the documentation at issue were deemed to fall
outside the definition of personnel files, it still would be considered a
"similar file" under Exemption 6. The Supreme Court has interpreted the phrase "similar files" broadly to include
"detailed Government records on an individual which can be identified as
applying to that individual." Washington Post, 456 U.S. at 602
The central inquiry in this case therefore turns on whether production
of the files would clearly invade McDonald's privacy, and on whether the
privacy interests identified by GSA outweigh the public's interest in
disclosure. The withheld documents in this case implicate the privacy
interests of McDonald, GSA's managers, and the agency itself. McDonald,
like any employee, has a strong interest in keeping private the details
of his job performance. Tomscha's observation that McDonald's evaluations
must be positive given the amount of the awards does not reduce the
strength of that privacy interest. Both favorable and unfavorable
assessments trigger a privacy interest. See Federal Labor Relations
Authority v. United States Dep't of Commerce, 962 F.2d 1055, 1059
(D.C. Cir. 1992) (employees receiving ratings of "outstanding" or
"commendable" have a substantial interest in maintaining privacy and the
fact that the information is favorable does not diminish the interest);
Ripskis v. Dep't of Housing and Urban Development, 746 F.2d 1,
3 (D.C. Cir. 1984) (the release of favorable information could "spur
unhealthy comparisons among HUD employees and thus breed discord in the
In addition to McDonald, the managers who nominated him and the
authorizing officials who approved awards to him also have an interest in maintaining the confidentiality of their evaluations.
Similarly, GSA has an interest in encouraging managers and supervisors to
comment candidly on an employee without fear that their statements will
become public. "Human experience teaches us that those who expect public
dissemination of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the
decisionmaking process." United States v. Nixon, 418 U.S. 683,
Balanced against these private interests is the public's interest in
monitoring government agencies' use of tax dollars to distribute cash
awards to its employees. The public has an interest in ensuring that the
awards are fairly distributed, and that agencies properly adhere to their
stated guidelines in distributing the awards. See Hopkins v. Dep't
of Housing and Urban Development, 929 F.2d 81, 88 (2d Cir. 1991)
(monitoring of governmental operations accepted as a public interest).
Other agency employees such as Tomscha may also have an interest in
promoting the transparency of the awards program in order to increase
employee confidence in their supervisors and to better understand the
type of work performance that results in awards. GSA itself cited just
such a rationale when it encouraged managers through its Instructional
Letter to publicize award amounts and their justifications.
On balance, however, the interest of McDonald, his supervisors, and GSA
in maintaining the confidentiality of McDonald's employment evaluations
is substantial and outweighs the public's interest in knowing the justification for the awards.
The disclosure of the documents sought by Tomscha would not contribute
significantly to the public's understanding of the activities of its
government. In contrast, such disclosure would impact directly on
McDonald's privacy interest in the details of his job performance.
See Williams v. McCausland, No. 90 Civ. 7563 (RWS), 1994 WL
18510, at *14 (S.D.N.Y. Jan. 18, 1994).
In sum, GSA has shown that it conducted a thorough search for the
requested information, and has provided a reasonable explanation for
withholding certain documents from Tomscha by showing that they fall
under Exemption 6 of the FOIA. Accordingly, GSA's motion for summary
judgment is granted.
III. GSA's Management of the Fast Track Awards
Read liberally, Tomscha's opposition to this motion raises for the
first time a challenge against GSA for improperly managing and
distributing its cash awards program.*fn5 These allegations, which are
not pleaded in the complaint, go beyond the subject matter of Tomscha's
FOIA claim against the agency. To the extent that Tomscha's opposition is
an attempt to amend his complaint, that effort must be denied.
Tomscha's allegations fail to satisfy an essential predicate for suing
the United States or one of its entities, to wit, an independent basis
for subject matter jurisdiction and a waiver of sovereign immunity. See Adeleke v. United States,
355 F.3d 144, 152 (2d Cir. 2004); Presidential Gardens Assocs. v. United
States, 175 F.3d 132, 139 (2d Cir. 1999). Limitations imposed by the
waiver statute "are to be strictly applied against the claimant."
Adeleke, 355 F.3d at 152 (2d Cir. 2004) (citation omitted).
Tomscha cites no statute providing a basis to sue GSA over the management
of its discretionary awards program. In addition, Tomscha identifies no
waiver of sovereign immunity that would permit a suit based on his new
The defendant's motion for summary judgment is granted. The Clerk of
Court shall enter judgment for the defendant and close the case.