44:0452(39)CA - - F.E. Warren AFB, Cheyenne, WY and AFGE Local 2354 - - 1992 FLRAdec CA - - v44 p452

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[ v44 p452 ]
44:0452(39)CA
The decision of the Authority follows:


44 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

F.E. WARREN AIR FORCE BASE

CHEYENNE, WYOMING

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2354

(Charging Party)

7-CA-00481

DECISION AND ORDER

March 18, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide information required by section 7114(b)(4) of the Statute, when the Respondent failed and refused to give the Union a copy of an investigative report prepared by the Respondent's Office of Special Investigations. The Judge found that the Respondent violated the Statute as alleged and recommended that the Authority order the Respondent to furnish the information requested by the Union.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as modified below.(1)

We note the Judge's finding that:

[w]hile the Union's request for the report was not specifically made under the FOIA [Freedom of Information Act], . . . the request was sufficient to constitute, and for the purposes of this case be construed as, a request under the FOIA as well as under section 7114(b)(4) of the Statute.

Judge's Decision at 10 n.9. The Respondent argues that the Judge's "factual finding that the request at issue in this case was made under the Freedom of Information Act and 5 U.S.C. § 7114(b)(4) is contrary to the evidence of record." Respondent's Exceptions at 1 (emphasis in original). According to the Respondent, where the evidence establishes that the Union chose "not to invoke the benefits available to it under a dual request (FOIA and 5 U.S.C. § 7114(b)(4)), the Administrative Law Judge can not rely upon the FOIA exception to the Privacy Act to authorize release of information otherwise prohibited from release under the Privacy Act." Respondent's Brief in Support of Exceptions at 6. Further, the Respondent maintains that the Judge's reliance on U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard) is misplaced because in Portsmouth Naval Shipyard, "the Authority attempted to reconcile three [F]ederal statutes (FOIA, Privacy Act and 5 U.S.C. § 7114(b)(4))[,]" whereas in this case, "there are only two statutes (7114(b)(4) and Privacy Act) to construe." Id.

We agree with the Respondent's assertion that the record does not support a finding that the Union's request was made under the FOIA, 5 U.S.C. § 552. Rather, as noted by both the Respondent and the General Counsel, the Union's request for the report in this case was made solely under section 7114(b)(4) of the Statute. Therefore, to the extent that the Judge's finding may be construed as a finding that the Union's information request was also made under the FOIA, we do not adopt such a finding.

However, contrary to the Respondent's argument, we conclude that the Judge properly relied on Portsmouth Naval Shipyard in applying the provisions of the Privacy Act, 5 U.S.C. § 552a, and the FOIA to this case. In reaching this conclusion, we reject the Respondent's argument that the Union may not rely on the FOIA exception to the Privacy Act unless the Union made a request under both the FOIA and section 7114(b)(4). Section 7114(b)(4) of the Statute requires an agency to furnish certain data to a union "to the extent not prohibited by law." As noted by the U.S. Court of Appeals for the Fourth Circuit in FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Nos. 90-1852 and 90-1859 (4th Cir. Jan. 24, 1992) (National Ocean Service), petition for rehearing en banc filed March 6, 1992, section 7114(b)(4) "directs the [Union] to the Privacy Act which, in turn, directs them to the FOIA." National Ocean Service, slip op. at 7. Therefore, where, as here, an agency argues that the release of information would violate the Privacy Act, section 7114(b)(4) necessarily requires a determination as to whether the Privacy Act or any of its exceptions, such as the exception for information required to be released under the FOIA, apply. See 5 U.S.C. § 552a(b)(2). Accordingly, as in Portsmouth Naval Shipyard, the Judge in this case was required to harmonize section 7114(b)(4) of the Statute, the Privacy Act, and the FOIA.

We also note the Respondent's argument that the Judge and the Authority "continue to err in applying the wrong legal standard" articulated in Portsmouth Naval Shipyard. Respondent's Exceptions at 1. In FLRA v. Portsmouth Naval Shipyard, the U.S. Court of Appeals for the First Circuit denied the Authority's petition for enforcement of Portsmouth Naval Shipyard. Further, in FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, et al., 944 F.2d 1088 (3d Cir. 1991) (Navy Ships Parts Control Center), a divided panel of the Court of Appeals for the Third Circuit denied the Authority's petition for enforcement of U.S. Department of the Navy, Navy Ships Parts Control Center and Navy Fleet Material Support Office and NAVSEA Logistics Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), another decision in which the Authority relied on Portsmouth Naval Shipyard. However, on November 5, 1991, the panel's decision in Navy Ships Parts Control Center was vacated and the Authority's petition for rehearing en banc was granted. We also note that in FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, Nos. 91-4049 and 91-4067 (2d Cir. March 5, 1992), the Court of Appeals for the Second Circuit denied the Authority's petition for enforcement of another decision in which the Authority relied on Portsmouth Naval Shipyard. However, in National Ocean Service, a majority of the panel in the Court of Appeals for the Fourth Circuit granted the Authority's application for enforcement of U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 37 FLRA 663 (1990), in which the Authority relied on Portsmouth Naval Shipyard. We respectfully adhere to our decision in Portsmouth Naval Shipyard. We further find that the Judge correctly recognized that FOIA Exemption 6, 5 U.S.C. § 552(b)(6), at issue in Portsmouth Naval Shipyard, applies a different standard for evaluating privacy interests than does FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), at issue in this case. We adopt the Judge's discussion of the different standard for evaluating privacy interests under Exemption 7(C). See Judge's Decision at 12-14. We conclude that the Judge properly applied Portsmouth Naval Shipyard precedent in balancing the public and privacy interests of the parents, certain children, supervisors, and current and former employees under FOIA Exemption 7(C) in the circumstances of this case.(2)

We note the Respondent's argument that even if the Portsmouth Naval Shipyard analysis is applied in this case, the report "is exempt from disclosure under 552(b)(7)(C)." Respondent's Brief in Support of Exceptions at 8. In this regard, the Respondent asserts that in U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA 943 (1987) (Department of Labor), "the Authority implicitly held where management could show that the material sought was investigatory material compiled for law enforcement functions, the material would be exempt from disclosure under section 552(b)(7) of FOIA." Respondent's Brief in Support of Exceptions at 8.

In Department of Labor, the Authority held that the agency in that case "fail[ed] to establish that the [requested] information was compiled for law enforcement purposes" within the meaning of FOIA Exemption 7. Department of Labor, 26 FLRA at 952. The Authority further stated that even assuming that the requested information had been compiled for law enforcement purposes, the FOIA "does not prohibit release of data within the meaning of section 7114(b)(4) of the Statute[,]" but permits agencies to invoke certain exceptions to withhold data falling within those exceptions. Id., citing Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407, 412 (1987). In reaching this conclusion, the Authority was responding to the agency's argument that disclosure of the requested information was "prohibited by law" and was rejecting the agency's argument that "the public interest in prohibiting disclosure outweighs the [u]nion's interests in obtaining the material." Id. at 951, 952.

Contrary to the Respondent's argument, nothing in Department of Labor indicates that "where management could show that the material sought was investigatory material compiled for law enforcement functions," such material is necessarily exempt from disclosure under FOIA Exemption 7(C). Respondent's Brief in Support of Exceptions at 8. Rather, as we noted in our discussion of Portsmouth Naval Shipyard above, the Authority applies a balancing test to determine whether information is exempt from disclosure under FOIA Exemption 7(C). Accordingly, we reject the Respondent's argument.

We also note the Respondent's assertion that it did not release an unredacted copy of the report to the Union because "the bargaining unit member [who was the subject of the report] had not specifically consented to the release of this report," and "an unauthorized release under the Privacy Act subjects the releaser to criminal penalties." Id. at 9. With certain enumerated exceptions, the Privacy Act precludes an agency from disclosing to any person or agency any record which it maintains as a part of a system of records absent a request by, or the written consent of, the person to whom the record pertains. 5 U.S.C. § 552a(b). The Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the FOIA. 5 U.S.C. § 552a(b)(2). Under the FOIA, requested information must be disclosed unless it falls within one of the enumerated FOIA exemptions.

Nothing in the record demonstrates that the employee in this case requested or specifically consented to the disclosure of a copy of the report to the Union. Nevertheless, if disclosure of the report is required by the FOIA, then the Privacy Act would not prohibit disclosure. We have already found that, with the exception of the information referred to in note 2 of this decision, FOIA Exemption 7(C) does not exempt the report from disclosure. Therefore, apart from the information referred to in note 2 of this decision, we reject the Respondent's argument that the Privacy Act prohibits disclosure of the information alleged to have been exempt from disclosure solely under Exemption 7(C).

However, we find for the following reasons that information in the report provided by confidential sources is exempt from disclosure under FOIA Exemption 7(D), 5 U.S.C. § 552(b)(7)(D).(3) Therefore, disclosure of such information is prohibited by the Privacy Act.

We note the Respondent's argument that the Judge's decision to require the Respondent to release information provided by confidential sources is inconsistent with the portion of FOIA Exemption 7(D) exempting an agency from an obligation to release information that was furnished by a confidential source. In particular, the Respondent argues that in applying Exemption 7(D), "there is no balancing of competing interests" and that Portsmouth Naval Shipyard "does not support engaging in a balancing analysis in instances where FOIA does not balance." Respondent's Exceptions at 13.

The General Counsel "acknowledges that most Circuit Courts of Appeal[s] which have addressed exemption (b)(7)(D) hold that once it is established that information is procured from a 'confidential source'" by a criminal law enforcement authority in the course of a criminal investigation, "all such information is exempt from disclosure." General Counsel's Opposition at 11. However, the General Counsel notes that "none of the court decisions construing FOIA exemption (b)(7)(D) considered the interests embodied in [s]ection 7114(b)(4) of the Statute." Id. at 11-12. The General Counsel argues that to "harmonize the competing public interests embodied in the Statute, the FOIA and the Privacy Act[,]" the Authority should "employ a balancing test in construing exemption (b)(7)(D)." Id. at 11.

No exceptions were filed to the Judge's finding that the report at issue "is a record 'contained in a system of records' within the meaning of the Privacy Act and . . . would be privileged against disclosure unless an exception is applicable." Judge's Decision at 10. Further, no exceptions were filed to the Judge's findings that the witnesses designated "OC" in the report were confidential sources and that "the information they provided was compiled by a criminal law enforcement authority in the course of a criminal investigation" within the meaning of the second clause of FOIA Exemption 7(D). Id. at 14. Accordingly, for the purposes of this decision, we adopt those findings.(4) Having found that the "OC" witnesses were confidential sources and that the summaries of their information in the report were compiled by a criminal law enforcement authority in the course of a criminal investigation, we must resolve the parties' dispute over whether, under Portsmouth Naval Shipyard, the Authority should balance the interests in the secrecy of the information against the facilitation of the collective bargaining process in the Federal sector.

Most of the U.S. Courts of Appeals that have addressed the issue have held that "the judiciary is not to balance interests under Exemption 7(D)" but is "simply to apply the criteria listed in the [FOIA] statute." Parker v. Department of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991) and Irons v. Federal Bureau of Investigation, 880 F.2d 1446, 1449 (1st Cir. 1989). See also Schmerler v. Federal Bureau of Investigation, 900 F.2d 333, 336 (D.C. Cir. 1990); Brant Construction Co. v. United States Environmental Protection Agency, 778 F.2d 1258, 1262-63 (7th Cir. 1985) (Brant); Cuccaro v. Secretary of Labor, 770 F.2d 355, 360 (3d Cir. 1985); and L & C Marine Transport, Ltd. v. United States, 740 F.2d 919, 925 (11th Cir. 1984). But see Kiraly v. Federal Bureau of Investigation, 728 F.2d 273 (6th Cir. 1984) and Nix v. United States, 572 F.2d 998, 1002-03 (4th Cir. 1978) (where the courts balanced competing interests under FOIA Exemption 7(D), but did not order disclosure of the information provided by confidential sources).

Consistent with the majority of the courts that have addressed this issue, we conclude that FOIA Exemption 7(D) does not provide for a balancing of competing interests. Rather, once it has been determined that the requested information was procured from a confidential source and was part of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, "all [of] the information is exempt from disclosure." Brant, 778 F.2d at 1262. As the witnesses designated "OC" in the report were confidential sources and as the information they provided was compiled by a criminal law enforcement authority in the course of a criminal investigation, we conclude that the information provided by the "OC" witnesses is exempt from disclosure.

We note the Judge's finding that under Portsmouth Naval Shipyard the Authority must harmonize section 7114(b)(4) of the Statute, the FOIA, and the Privacy Act, and that, in order to harmonize the three statutes, the Authority must balance the competing interests in the secrecy of the information against the facilitation of collective bargaining in the Federal sector. However, Portsmouth Naval Shipyard stands only for the proposition that where information is requested pursuant to section 7114(b)(4) of the Statute and where the FOIA calls for balancing the public interest against competing privacy interests, the Authority will consider the public interest in the facilitation of collective bargaining in the Federal sector as distinct from the interest of the general public as defined by United States Department of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989). Therefore, unlike cases involving FOIA Exemptions 6 and 7(C), in this case involving Exemption 7(D), we conclude that Portsmouth Naval Shipyard does not require us to balance competing interests.

In summary, except as noted otherwise in note 2 of this decision, we find that the Judge properly found that FOIA Exemption 7(C) does not exempt the information in the report from disclosure. However, we further find that FOIA Exemption 7(D) exempts from disclosure the information in the report provided by the "OC" witnesses. Accordingly, except as to information referred to in note 2 of this decision, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish to the Union certain portions of the report which provide information by sources other than those sources identified as "OC."

However, in view of the fact that, as found by the Judge, the potential grievant is no longer an employee and has "disappeared[,]" we conclude that in these circumstances, the report is no longer needed by the Union. Judge's Decision at 6.(5) See Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378 (1992); and U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991). In this regard, we note that the report applied only to the subject of the report, that is, the potential grievant, and could not have been used to otherwise further the Union's representational duties. Accordingly, we will modify the Judge's recommended Order and will not require the Respondent to release any portions of the report to the Union in this case.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, F.E. Warren Air Force Base, Cheyenne, Wyoming shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees,AFL-CIO, Local 2354, the exclusive representative of its employees, information which is reasonably available and necessary for the Union to effectively represent unit employees in grievance proceedings.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its Cheyenne, Wyoming facilities copies of the attached Notice on forms to be furnished by

the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 2354, the exclusive representative of our employees, information which is reasonably available and necessary for the Union to effectively represent unit employees in grievance proceedings.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

_________________________
(Activity)

Dated:_______ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We reject the Respondent's contention that the Judge "erred in failing to find that providing a physical copy of the [report] was not necessary for the Union to fulfill its representation function." Respondent's Exceptions at 2. We find, for the reasons noted by the Judge, that the Respondent did not fulfill its obligation under section 7114(b)(4) of the Statute to "furnish" necessary information when it merely permitted the Union and the employee to view the report.

2. We find, contrary to the Judge, that the names of children found in interview 3-13, 3-35, 3-37, paragraphs 6-1 and 6-2, and Exhibit 6 are exempt from disclosure to the Union under Exemption 7(C) to the extent that the children are named in reference to alleged incidents that do not involve the employee in this case. Nothing in the record indicates that disclosure of those names would further the Union's representational duties under Portsmouth Naval Shipyard.

3. FOIA Exemption 7(D) provides in relevant part:

[The disclosure requirement of this] section does not apply to . . . (7) records or information compiled for law enforcement purposes[,] . . . but only to the extent that the production of such law enforcement records or information . . . (D) could reasonably be expected to disclose the identity of a confidential source, . . . and, i