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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


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 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.


 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 is granted.

 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 omitted).

  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. 2002).

  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 (citation omitted).

  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 workplace").

  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, 705 (1974).

  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 allegations.


  The defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close the case.


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