                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0172n.06
                               Filed: March 1, 2007

                                               Case No. 06-3099

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 JOSEPH W. DIEMERT, JR. AND                                    )
 ASSOCIATES CO., L.P.A.,                                       )
                                                               )
            Plaintiff-Appellant,                               )        ON APPEAL FROM THE
                                                               )        UNITED STATES DISTRICT
                   v.                                          )        COURT FOR THE NORTHERN
                                                               )        DISTRICT OF OHIO
 FEDERAL AVIATION                                              )        AT CLEVELAND
 ADMINISTRATION,                                               )
                                                               )
       Defendant-Appellee.                                     )
 _______________________________________

BEFORE: BATCHELDER and GRIFFIN, Circuit Judges, and PHILLIPS,* District Judge.

         THOMAS W. PHILLIPS, District Judge. The matter before the Court involves a

Freedom of Information Act (“FOIA”) request made by plaintiff-appellant to the Federal Aviation

Administration (“FAA”). Plaintiff-Appellant’s appeal is based on two grounds: (1) plaintiff-

appellant had exhausted all administrative remedies required by law to be exhausted prior to seeking

judicial review of the denial of its FOIA request, and (2) the public interest in the information sought

outweighs any privacy interest that might be threatened by disclosure of same. Because we find that

release of the information requested would present a “clearly unwarranted invasion of personal

privacy,” we affirm the decision of the district court on that basis and see no need to address



        *
           The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
plaintiff-appellant’s argument regarding exhaustion of administrative remedies.

                                       I. Background

       According to plaintiff-appellant, Ms. Rebecca A. Nelson began receiving monthly payments

of Five-Thousand One Hundred and xx/100 Dollars ($5,100.00) from the FAA after an “incident”

that occurred while she was working as an air traffic controller for the FAA. According to Ms.

Nelson, the “incident” caused her to experience an “adjustment reaction.” Ms. Nelson was sent

home by the FAA and has not returned to work. In 2002, Ms. Nelson allegedly confided these

occurrences to Mr. Warren Anderson, stating that the payments had been arranged to essentially “buy

her silence.”

       On December 21, 2004, plaintiff-appellant Joseph W. Diemert, Jr. & Associates Co., L.P.A.

(“Diemert”) sent a letter to the FAA’s Acting FOIA Program Director requesting access to any

agency records pertaining to a settlement between Ms. Nelson and the FAA.2 Although Diemert

asserts that a response should have been forthcoming within ten days of its letter pursuant to federal

regulations, on February 14, 2005, the FAA at Great Lakes Region sent Diemert a letter denying its

request pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 552 (b)(6), because such records may be

in “personnel, medical files, and similar files the disclosures of which would constitute a clearly

unwarranted invasion of person [sic] privacy.” The letter also explained the right to appeal the

denial. Diemert then sent a letter of appeal to the Assistant Administrator for Regions and Center

Operations on March 1, 2005. On April 19, 2005, the Executive Manager for Regions and Center



       2
        It is alleged by the FAA that the requested records are sought because they are relevant to
child custody and support issues unrelated to this case.

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Operations sent a letter acknowledging the receipt of the appeal and advised Diemert that it had

various Office of Workers’ Compensation related records, but that these records did not include a

settlement agreement. Regions and Center Operations then advised that it was remanding the request

back to the Great Lakes Region for further review of its records for responsive documents. Upon

remand, on April 29, 2005, the FAA at Great Lakes Region advised Diemert that the FAA held no

records that were responsive to Diemert’s request and further advised that Diemert could appeal the

FAA’s determination within thirty (30) days from the date it received such notice to the Assistant

Administrator for Regions and Center Operations.

     Instead of appealing to the Assistant Administrator, on July 14, 2005 (seventy-six days later),

Diemert filed a complaint for injunctive relief against the FAA and the Department of Labor

pursuant to 5 U.S.C. § 552(a)(4)(b), alleging that the defendants improperly withheld agency records

concerning a settlement between the FAA and Ms. Nelson. Defendants both filed motions to

dismiss, which were granted by the district judge. Shortly thereafter, on November 2, 2005, Diemert

filed a notice of appeal only as to the FAA’s motion to dismiss. The previous court order dismissed

the complaint against the FAA on two grounds: (1) pursuant to Fed. R. Civ. P. 12(b)(1) for

Diemert’s failure to exhaust administrative remedies, and (2) on the merits, under Exemption 6 of

the FOIA, 5 U.S.C. § 552(b)(6).3



       3
           The Court’s Order granting FAA’s motion to dismiss is brief, stating only:

       Motion to Dismiss is granted. This case should be dismissed pursuant to FRCP 12(b)(1) for
       Plaintiff’s failure to exhaust administrative remedies and on the merits under 5 u.s.c. section
       (sic) 552(b) and exemption 6, inasmuch as 3rd party FOIA request was not accompanied by
       the necessary release from the person whose records are sought by the 3rd party.

                                                  3
                                      II. Analysis

     The review of the district court’s application of the law to the facts is de novo. See Begala v.

PNC Bank, Ohio, Nat. Ass’n, 214 F.3d 776, 779 (6th Cir. 2000). The Government is not required to

disclose records concerning “matters that are . . . 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). A court must first consider whether the requested files are the type intended to be

protected, that is, whether they are personnel, medical, or similar files. Pacific Molasses Co., v.

NLRB, 577 F.2d 1172, 1178 (6th Cir. 1978). If this threshold requirement is met, a court must then

balance two compelling and competing interests, that is, the individual’s right to privacy and the

public’s right of free access to government information or public records. Dep’t of Air Force v.

Rose, 425 U.S. 352, 372-381 (1976). The agency relying on the exemption to prevent disclosure of

information bears the burden of establishing that application of the exemption is appropriate. 5

U.S.C. § 552 (a)(4)(B); Avondale Indus. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996); Orion Research,

Inc. v. EPA, 615 F.2d 551, 553 (1st Cir. 1980).

       The Court concludes that documents in workers’ compensation files are “personnel and

medical files and similar files” within the meaning of the FOIA’s Exemption 6. Plain Dealer Publ’g

Co. v. U.S. Dep’t of Labor, 471 F.Supp. 1023, 1026-1027 (D.D.C. 1979). The documents requested

in the instant matter are either workers’ compensation files and/or documents similar in nature. U.S.

Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (holding that the terminology of

“personnel and medical files and similar files” must be read broadly). Accordingly, the threshold

requirement of Exemption 6 has been satisfied. In considering the rights of the private individual


                                                  4
compared with the rights of the public, the Court finds that the release of the requested information

is clearly an unwarranted invasion of personal privacy in that Diemert is seeking information and

verification about a specific individual’s income and/or medical information, which has no

governmental public interest. The disclosure of such information would only serve the private

interests of Diemert. The focus of the FOIA is to ensure that the Government’s actions are open for

scrutiny, not to reveal private third party information, which happens to be in the warehouse of the

Government. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,

765-66 (1989); see also Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 439 (1st Cir. 2006).

     Moreover, some courts have concluded that where personal privacy interests are implicated,

only the individual who owns such interest may validly waive it. See Sherman v. U.S. Dep’t of

Army, 244 F.3d 357, 364 (5th Cir. 2001). If Diemert wishes to pursue this matter, it is obvious that

it can request that Ms. Nelson execute a release for the requested information. As to deletion or

redaction of personal details within the documents, the Court finds that deletion or redaction would

not serve to protect the individual privacy interest. Disclosing the information about the benefits

received may indicate the gravity and extent of injuries, potentially causing Ms. Nelson difficulties

in obtaining insurance or being hired by a new employer.

       Since the Court finds that the request is an unwarranted invasion of personal privacy, there

is no need to discuss Diemert’s argument regarding exhaustion of administrative remedies.




                                                 5
                                     III. Conclusion

         For the forgoing reasons, we conclude that the district court did not err in dismissing

Diemert’s complaint against the FAA. Consequently, we deny Diemert’s appeal and affirm the

district court’s decision.




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