Perrusquia v. TVA, No. 22-309, 2023 WL 6303013 (E.D. Tenn. Sept. 27, 2023) (Greer, J.)

Perrusquia v. TVA, No. 22-309, 2023 WL 6303013 (E.D. Tenn. Sept. 27, 2023) (Greer, J.)

Re:  Request for records concerning salary and compensation of four Regional Vice Presidents employed by Defendant from December 1, 2020 to January 31, 2022

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 6 & Litigation Considerations:  The court relates that defendant “denied Plaintiff’s FOIA request on the grounds that the records were exempt from disclosure under FOIA Exemption[] . . . 6.”  “Plaintiff does not dispute that the records at issue are ‘similar files’ within the meaning of Exemption 6 . . . .”  Regarding the privacy interests, “[defendants] submitted declarations stating that they reasonably believe that public disclosure of information about the Regional Vice Presidents’ salary and compensation either ‘could potentially expose [them] to undue harassment or to the risk of harm’ or ‘is capable of causing’ embarrassment and harm.”  “However, none of the declarations state that embarrassment or harassment is likely.”  “Although Defendant is not subject to OPM regulations, Defendant is an executive agency of the federal government, which means that their employees are distinguishable from citizens employed by private companies.”  “Further, it appears that purported salary information for thousands of Defendant’s employees, including salary information for managers and other vice presidents, has been made publicly available in the past.”  “The Court does not have any information related to harassment or embarrassment caused by these previous disclosures that suggests issues would be likely to occur for the Regional Vice Presidents were their compensation information to be disclosed.”  “In light of the forgoing, the Court cannot find that a strong privacy interest exists with respect to the Regional Vice Presidents’ salary and compensation information.”  “However, the standard for determining whether a substantial privacy interest exists is ‘not very demanding.’”  “Since Defendant has been exempted from the OPM regulations that govern other federal employees, and in light of the declarations submitted with Defendant’s Motion, the Court is ‘willing to engage in the balancing inquiry by concluding that disclosure of the information would constitute a “more than minimal invasion[ ] of personal privacy.”’”  “For the reasons that follow, said balancing inquiry favors public disclosure.”
  
  Regarding the public interest, the court relates that, “[a]s an initial matter, Defendant attempts to overcome two of Plaintiff’s arguments related to public interest by binding him solely to the statements he provided in his initial FOIA request and appeal, arguing that he ‘failed to specify how disclosure of the salary and compensation information would serve the core purpose of FOIA’ and that for the Court to entertain any new arguments not outlined in the original FOIA appeal would ‘frustrate the policies underlying the exhaustion requirement’ for administrative remedies.”  The court finds that “Plaintiff's appeal of Defendant’s FOIA decision explicitly states that ‘[i]f the taxpaying public cannot examine how its government is spending public funds, that is not conducive to a free and fully functioning democracy.’”  “Defendant was therefore on notice that allocation and spending of funds within its operations formed a basis of Plaintiff’s request.”  “[T]he grounds raised by Plaintiff in his appeal, which can reasonably be construed to include concerns related to the allocation and spending of Defendant’s funds, will be discussed further below.”
  
  “The Court finds that any invasion of the privacy interests at issue, through disclosure of the Regional Vice Presidents’ salary information, would not be clearly unwarranted.”  “Plaintiff has proffered a legitimate reason related to his right to governmental information in requesting the documents at issue.”  “He argued in his appeal that ‘democracy rests on freedom of information,’ which he considers ‘vital to the public.’”  “He states that the ability of taxpayers to see how agency funding is spent is fundamental to democracy.”  “He then elaborates that the information he seeks is more specifically relevant to the public in West Tennessee because of the implications the Regional Vice President position has for the city of Memphis’s determination to remain with Defendant as an energy supplier or choose another utility provider in the alternative.”  “While Defendant ‘self-funds its operations from revenues and receives no tax dollars,’ . . . , Defendant is effectively owned by the federal government, and it is not insulated from public interest or oversight into its spending.”  “Disclosure also would not expose the Regional Vice Presidents to unnecessary public scrutiny.”  “FOIA is not so exacting as Defendant wishes the Court to be in evaluating Plaintiff’s motivations for seeking the information at issue, particularly where there is a relatively weak privacy interest at stake.”  “Plaintiff is admittedly a journalist who intends to report on Defendant and its activities, but the Supreme Court has stated that ‘whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.’”  “Further, as discussed above, there is nothing in the record to suggest that any harassment or embarrassment is likely or would result from disclosure of the Regional Vice Presidents’ salaries . . . .”  “In sum, FOIA contains a general philosophy of full agency disclosure unless information is exempted, and exemption is not warranted here.”