---

50 FLRA No. 59

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

JACKSONVILLE AIR TRAFFIC CONTROL TOWER

JACKSONVILLE, FLORIDA

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/AFL-CIO

(Charging Party/Union)

AT-CA-21004

_____

DECISION AND ORDER

May 10, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties who have agreed that no material issue of fact exists. The Respondent and the General Counsel have filed briefs.⁽¹⁾

The complaint alleges 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 the Union with unsanitized copies of employees' annual performance appraisals. For the reasons stated below, we find that the Respondent did not violate the Statute because disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a.⁽²⁾ Therefore, we dismiss the complaint

II. Stipulation

The Union requested the Respondent to furnish, among other things, "unsanitized (except for social security numbers) copies of all bargaining unit employees' annual performance appraisals" for the appraisal cycles ending March 31, 1991 and 1992. Stip., para. 9. The Union stated that it needed the information "to thoroughly investigate and determine" whether to proceed with an unfair labor practice and grievances concerning ratings. Stip., Exh. 1. In response, the Respondent provided the Union with unsanitized copies of approximately half of the requested appraisals and informed the Union that the remaining appraisals would be provided later. Although the Respondent subsequently provided the Union with the remaining appraisals, they had been sanitized to delete the names of employees and supervisors, as well as portions of the narratives supporting the ratings.⁽³⁾ The Respondent refused to provide the 1992 appraisals in any form for two named employees because they were no longer in the unit at the time of the request.

The parties stipulated that the requested appraisals are normally maintained by the Respondent in the regular course of business, are reasonably available, and do not constitute guidance, advice, counsel or training provided by management officials or supervisors relating to collective bargaining. The parties also stipulated that the Union requested the information "to compare appraisals in order to detect whether there was a pattern of favoritism among supervisors towards certain employees and/or retaliation against employees for union activity." Stip., para. 10 at 2.

III. Positions of the Parties

A. General Counsel

The General Counsel asserts that the data is "necessary," within the meaning of section 7114(b)(4) of the Statute, to enable the Union to "determine whether to file grievances and/or an unfair labor practice charge concerning performance ratings." General Counsel's Brief at 4.

The General Counsel also claims that disclosure of the requested information would not violate the Privacy Act because such disclosure would not constitute a clearly unwarranted invasion of the employees' privacy under FOIA Exemption 6. In this connection, the General Counsel argues that employees' privacy interests have been "lessened by the Respondent's previous release of unsanitized appraisals for the same employees." Id. at 12. According to the General Counsel, these privacy interests are outweighed by the public interest in determining whether the Respondent administered its performance appraisal system fairly and without retaliation against employees who engaged in Union activity.

B. Respondent

The Respondent states that employees have significant privacy interests in their performance appraisals, citing Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Further, citing United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee) and Department of Defense, the Respondent claims that there is no public interest in disclosure of the requested information because a performance appraisal is an "internal management tool" that does not "say anything" about how the agency performs its statutory duties. Respondent's Brief at 6. Accordingly, the Respondent claims that disclosure of the appraisals would result in a clearly unwarranted invasion of employees' privacy. The Respondent notes that it has both provided sanitized appraisals and offered to provide unsanitized appraisals of employees who consent to such disclosure. The Respondent also argues that unsanitized appraisals are not necessary, within the meaning of section 7114(b)(4) of the Statute.

IV. Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information is not required under the FOIA because the disclosure would constitute a clearly unwarranted invasion of personal privacy and, therefore, is prohibited by the Privacy Act. Accordingly, without addressing the parties' arguments as to whether the information is necessary, under section 7114(b)(4), we dismiss the complaint.

In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA No. 55 (1995) (FAA), which involved the disclosure of performance appraisals of bargaining unit employees, we set forth the analytical approach we will follow in assessing an agency's claim that disclosure of information requested under section 7114(b)(4) of the Statute would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA and, therefore, is prohibited by the Privacy Act. As we explained in FAA, an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the requested information is contained in a "system of records," within the meaning of the Privacy Act; (2) that disclosure would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest. Although the parties bear these burdens, we will, where appropriate, consider matters that are otherwise apparent.

We held in FAA, for reasons fully explained there, that the only relevant public interest to be considered in this context is the extent to which the requested disclosure would shed light on the agency's performance of its statutory duties, or otherwise inform citizens as to the activities of the Government. More particularly, we held that the public interest in collective bargaining that is embodied in the Statute, or specific to a union in fulfilling its obligations under the Statute, will no longer be considered in our analysis under Exemption 6 of the FOIA.

Once the relevant interests are established, we will balance the privacy interests of employees against the public interest in disclosure. Where this balance leads us to conclude that the privacy interests are greater than the public interest at stake, we will find that the requested disclosure would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 and, therefore, that disclosure is prohibited by law under section 7114(b)(4) of the Statute; accordingly, the agency is not required to furnish the information unless disclosure is permitted under another exception to the Privacy Act. In contrast, where the balance tips the other way, because the public interest is greater than the privacy interests, we will conclude that disclosure would be required under the FOIA and, therefore, is not prohibited by the Privacy Act.

In this case, the Respondent has, with two exceptions, already provided to the Union both sanitized performance appraisals and a separate list of the names of the employees whose appraisals were provided.⁽⁴⁾ Thus, the question before us is whether disclosure of the redacted information, names and other identifying information (such as supervisors' names) on the performance appraisals already provided and/or the complete appraisals of the two nonunit employees, is prohibited by the Privacy Act. We note, in this connection, that, unlike requests that encompass only the names of employees in various categories (such as employees who received awards or outstanding appraisals), in this case the request for names is for the purpose of matching those names with the appraisals already provided. As such, disclosure of the requested information would effectively require release of unsanitized appraisals for all employees included in the request.⁽⁵⁾

The Respondent and the General Counsel have demonstrated, respectively, that disclosure of the requested information would implicate employee privacy interests and serve the public interest.⁽⁶⁾ We find, in agreement with the Respondent, and for reasons discussed more fully in FAA, that employees have substantial privacy interests in shielding their individual performance evaluation information from public view. The Union's request encompasses all unit employees' performance appraisals, whether favorable to the employee or not. In this regard, privacy interests may be heightened with respect to derogatory information in an appraisal. See Gilbey v. Department of the Interior, 1990 WL 174889 (D.D.C. 1990). However, such interests exist even as to favorable information. See FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 962 F.2d 1055, 1059 (D.C. Cir. 1992); Ripskis, 746 F.2d at 3. Moreover, we reject the General Counsel's conclusory assertion that employees' privacy interests are "lessened" by the fact that unsanitized appraisals previously were disclosed to the Union. General Counsel's Brief at 12. We are unable to conclude, in the absence of any authority for the argument, that a prior disclosure of a previous appraisal affects an employee's interests in subsequent disclosures. Cf. Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (Preservation Fund) (court rejected argument that the postings of wage scales required by the Davis-Bacon Act diminishes employees' privacy interests in disclosure of actual earnings); Halloran v. Veterans Administration, 874 F.2d 315, 322 (5th Cir. 1989) (in assessing privacy interests under Exemption 7(C) of the FOIA, the fact that "otherwise-private information may have been at one time or in some way in the 'public' domain does not mean that a person irretrievably loses his or her privacy interests in it").

We also find, in agreement with the General Counsel, that the release of the requested information would shed light on Government operations and, therefore, would serve the public interest. In particular, disclosure of unsanitized appraisals would permit review of the ways in which the Respondent administers its performance appraisal system and monitors the quality of the work products generated in fulfilling its statutory mission.

However, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be enhanced by the disclosure of appraisals that include names and other identifiers. See Ripskis, 746 F.2d at 3-4 (in concluding that the agency was justified in redacting names and other identifying information from employee evaluation forms, the court stated that the public interest in the forms could "be substantially advanced short of disclosure of the names . . . found on the forms."). See also United States Department of State v. Ray, 502 U.S. 164, 178 (1991) (Court concluded that agency properly redacted names and other identifying information from summaries of certain interviews; Court held that public interest in the information had "been adequately served by disclosure of the redacted interview summaries" and that the "addition of the redacted identifying information would not shed any additional light on the Government's conduct"). As in FAA, the General Counsel has not established that the disclosure of unsanitized appraisals enhances the public interest that has been established.

In this connection, disclosure of unsanitized information may well enhance the Union's ability to use the information to make determinations regarding potential unfair labor practices and the like. However, it is clear that this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6. See Reporters Committee, 489 U.S. at 771 ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request[.]"). See also Department of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]"). Moreover, although the public has an interest in determining whether the Respondent has violated the Statute by, for example, engaging in unlawful retaliation, the General Counsel has not shown how disclosure of unsanitized appraisals would permit a member of the public (as opposed to the Union) to determine whether such retaliation had occurred. Cf. Preservation Fund, 936 F.2d at 1303 (court found that the possibility that requested information "would facilitate investigation of government efforts to enforce" certain laws constituted a "limited public interest," which was outweighed by individuals' privacy interests in the records).

In this situation, we conclude that, on balance, the public interest served by disclosure is outweighed by the substantial invasion of employees' privacy that would result. Accordingly, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the requested information under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute.

V. Order

The complaint is dismissed.

---

---

---

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

1. The parties were given the opportunity to file supplemental briefs addressing the Supreme Court's decision in United States Department of Defense v. FLRA, U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The Respondent and the General Counsel filed briefs on this issue. The General Counsel also filed a brief concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).

2. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. In addition to the exception relating to the FOIA, other exceptions to the Privacy Act may permit disclosure of requested information. However, no other exceptions are asserted to apply in this case.

3. However, the Respondent supplied the Union with a separate list of the employees' names whose sanitized appraisals it had provided.

4. The excepted appraisals concern the two employees who were no longer in the bargaining unit at the time of the request.

5. As neither party separately addresses in any respect the appraisals of the two employees who were no longer in the unit at the time of the request, we assume that the privacy and public interests in those appraisals are the same as in the remainder of the requested information.

6. The Respondent does not address whether the information is contained in a system of records. However, as we did in FAA, we find that it is proper to take official notice of the fact that performance appraisals are contained in a system of records. FAA, 50 FLRA No. 55, slip op. at 9.

---