50:0472(67)CA - - Justice, Office of Justice Programs and American Federation of State, County and Municipal Employees ( AFSCME ), Local 2830, AFL-CIO - - 1995 FLRAdec CA - - v50 p472

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[ v50 p472 ]
50:0472(67)CA
The decision of the Authority follows:


50 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

OFFICE OF JUSTICE PROGRAMS

(Respondent/Agency)

and

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES,

LOCAL 2830, AFL-CIO

(Charging Party/Union)

3-CA-10207

_____

DECISION AND ORDER

June 14, 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 on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. No opposition to the exceptions was filed.(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 a list, requested by the Union under section 7114(b)(4) of the Statute, of the names of employees who had received outstanding performance appraisals. The Judge concluded that the Respondent violated the Statute, as alleged, and ordered the Respondent to furnish the Union with the list.(2)

On consideration of the Judge's decision and the entire record, we conclude 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.(3) Therefore, we dismiss the complaint.

II. Judge's Decision

The facts are fully set forth in the attached Judge's decision and are only briefly summarized here. The Union requested from the Respondent a list of the names of all employees in the Respondent's sub-offices, including nonunit employees, who had received, during certain time periods: outstanding performance appraisals, awards, and promotions. The Respondent provided the Union with the names of employees who had received promotions and awards. However, the Respondent refused to provide the names of employees who had received outstanding appraisals on the ground that release of those names would violate the Privacy Act.

The Judge found that release of the requested names of employees would not violate the Privacy Act and that the Respondent violated the Statute by refusing to provide the list of those names.(4) Finding that all the other requirements for disclosure of information under section 7114(b)(4) of the Statute had been satisfied, the Judge concluded that the Respondent violated the Statute by refusing to provide the list of names.(5) The Judge also addressed the General Counsel's claim that the Respondent's asserted delay in responding to the Union's request for information violated the Statute. The Judge concluded that he could not find such a violation in this case because it was neither alleged in the complaint nor addressed at the hearing.(6)

III. Positions of the Parties

A. Respondent

The Respondent argues that the complaint is defective because it is based on conduct that occurred after the charge. This assertion is based on the Respondent's claim that it did not deny the Union's request for the names of employees who had received outstanding appraisals until after the unfair labor practice charge was filed. Asserting that such matters may be raised at any time, the Respondent, as a "prophylactic measure[,]" argues for the first time in its exceptions that the Authority's remand effectively amended the complaint by authorizing the Judge to base a finding of a violation of the Statute on conduct that occurred after issuance of the complaint and, thereby, usurped the exclusive authority of the General Counsel. Exceptions at 3, n.1.

With respect to the merits of the decision under review, the Respondent contends that the Judge's decision is inconsistent with Commerce, in which, according to the Respondent, the court held that release of the requested names is prohibited by the Privacy Act. The Respondent notes that, in view of the small size of some of the organizational units involved, identifying employees both by location and grade equates to naming them. The Respondent also asserts that the information is not necessary within the meaning of section 7114(b)(4) of the Statute.

B. Union

The Union did not file an opposition to the Respondent's exceptions. However, in its supplemental brief, the Union asserts that disclosure of the requested list of names is not prohibited by the Privacy Act. The Union maintains that the instant case is distinguishable from Department of Defense because, in this case, there are "important public interests" in assuring that criminal justice programs are "free of favoritism, cronyism, political or otherwise, or other non-objective standards . . . ." Union's Supplemental Brief at 2, 3. The Union also claims that the Respondent in the past "had routinely provided" it with the information sought. Id. at 2.

C. General Counsel

The General Counsel also did not file an opposition to the Respondent's exceptions. In its supplemental brief, the General Counsel asserts that:

The interest of Respondent's employees who received outstanding ratings in keeping their names out of public light is minimal (even assuming there is a privacy interest at all) compared with the public's interest in knowing whether taxpayer dollars are wisely put to deserving employees or whether such expenditures are wasted. Rating public employees is public business and agency management should not be permitted to hide behind the privacy shield to keep poor and wasteful management away from public scrutiny.

General Counsel's (GC's) Supplemental Brief at 1. In the General Counsel's view, the public interest outweighs the privacy interests and, as a result, disclosure of the information is not barred by the Privacy Act.

IV. Analysis and Conclusions

With respect to the procedural issue raised by the Respondent, a complaint need bear only "a relationship" to a charge and closely relate to the events cited in the charge. U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449, 455 (1991) (Bureau of Prisons), rev'd as to other matters sub nom. United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993). Further, a charge is sufficient if it informs the alleged violator of the general nature of the violation charged; only defects in a charge that prejudice a respondent will result in dismissal of a complaint. Bureau of Prisons, 40 FLRA at 455.

In this case, the charge put the Respondent on notice that it allegedly had violated the Statute by refusing to furnish the names of employees receiving awards and outstanding appraisals. Even though the Respondent had not denied the Union's request on the date of the charge, it had not provided that information. The complaint alleged a violation of the Statute based on the Respondent's failure to provide the names of employees who had received outstanding appraisals.(7) As such, the complaint is based on the events complained of in the charge. Moreover, it is clear that the Respondent understood the allegations against it; the Respondent addressed those allegations in its submission to the Authority and before the Judge. Accordingly, we find no defect either in the charge or complaint. As for the Respondent's argument regarding the scope of the remand order, there is no indication in that order that the Authority intended to permit the Judge to base a finding that the Respondent violated the Statute on conduct which occurred after the date of the complaint.(8)

On the merits of the complaint, we find for the following reasons that release 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) of the Statute, we dismiss the complaint.

In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338 (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 information requested is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information 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 that is cognizable under the FOIA; and (2) demonstrate how such disclosure 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.

The question before us is whether disclosure of the requested list of names of employees who received outstanding appraisals is prohibited by the Privacy Act.(9) We find that the Respondent has demonstrated that disclosure of the requested information would implicate employee privacy interests.(10) In this regard, the Respondent asserts that the information sought is "almost identical" to that requested in Commerce, in which the court, on review, determined that release of the names of recipients of commendable or outstanding performance ratings implicated those employees' privacy interests. Respondent's Exceptions at 49. For the reasons discussed more fully in FAA, we find that employees have substantial privacy interests in keeping confidential information regarding their performance appraisals, even when the appraisals are favorable, such as those involved in this case. See Commerce, 962 F.2d at 1059; Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Moreover, disclosure of the names of employees who received outstanding appraisals necessarily would identify (by omission) the employees who did not receive such appraisals and, thereby, also implicate their privacy interests. See Commerce, 962 F.2d at 1059.

Our finding that disclosure of the requested information would implicate privacy interests is not altered by the Respondent's alleged previous release of names of employees who received outstanding ratings. Even if the Respondent previously disclosed that information, we are unable to conclude, in the absence of any authority for the argument, that such disclosure diminishes employees' privacy interests in subsequent disclosures. See U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 393 (1995) (Authority rejected argument that employees' privacy interest in performance appraisals had been "lessened" by prior disclosure to union of unsanitized appraisals). Cf. Painting and Drywall Work Preservation Fund, Inc. v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (certain postings of wage scales required by Davis-Bacon Act do not diminish employees' privacy interest in nondisclosure of actual earnings); and 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").

On the other hand, the record in this case does not establish that disclosure of the requested information--the names of those employees who received outstanding performance ratings--would more than minimally, if at all, serve the public interest cognizable in the Exemption 6 analysis, because it would reveal little about what the Government is "up to." United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989) (Reporters Committee). In this regard, the General Counsel and the Union assert that disclosure of the requested list of names would serve public interests which, if established, would be cognizable under Exemption 6. Specifically, the General Counsel asserts that disclosure would serve the public interest by enabling a member of the public to determine whether "taxpayer dollars" have been wisely spent. GC's Supplemental Brief at 2. The Union posits a public interest in assuring that the Respondent's programs are free from favoritism. We conclude that the General Counsel and the Union have articulated public interests cognizable under Exemption 6 because information permitting a member of the public to monitor agency expenditures of public money and review an agency's administration of personnel programs generally would shed light on Government operations. See FAA, 50 FLRA at 347-48.

However, neither the General Counsel nor the Union has established how disclosure of the requested list of names would serve the public interest they articulate in information about the Government's activities. The General Counsel has not explained how disclosure of the requested list would enable a member of the public to determine whether public funds have been wisely spent. Similarly, the Union has not explained how disclosure of the requested list of names would assist the public in determining whether favoritism has occurred. Consequently, the General Counsel has not met its burden of demonstrating how disclosure would serve the public interest.

In this regard, disclosure of a list of employees who received outstanding appraisals undoubtedly would enhance the Union's ability to determine whether to file an unfair labor practice charge, as noted in its request, or to fulfill other representational responsibilities. However, these interests are specific to the Union as a requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6.(11) 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[.]").

In sum, the record before us does not establish a public interest in disclosure of the requested list of names that would outweigh the privacy interests that are at stake. Accordingly, we conclude 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.(12) 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 provided an opportunity to submit 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, Union, and 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. This case originally was transferred to the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. Based on assertions in the Respondent's and the General Counsel's briefs accompanying the stipulation that the Respondent had offered to provide, and the Union had agreed to accept, sanitized data, the Authority concluded that the stipulation was insufficient to determine whether the Respondent violated the Statute and remanded the case to the Regional Director for further processing. U.S. Department of Justice, Office of Justice Programs, 42 FLRA 371, 375 (1991). After the remand, a hearing was held before the Judge.

3. 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 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 6 of the FOIA 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[.]" If such an invasion of privacy 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.

4. In so finding, the Judge relied on, among others, the Authority's decisions in U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164 (1991) (SSA), rev'd per curiam, mem., as to other matters sub nom. U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II v. FLRA, No. 92-1012 (D.C. Cir. Dec. 10, 1992); and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120 (1990) (Commerce), enforcement denied sub nom. FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992).

5. The Judge noted that one of the reasons for the remand was to determine whether the Respondent was willing to provide, and the Union was willing to accept, the requested information in a sanitized form and, if so, the form and content of such sanitized information. In this regard, as set forth fully in the Judge's Decision, the parties discussed, but did not agree on, alternative ways in which the requested information, or parts of it, could be provided to the Union without disclosing employee names. The Judge noted that an argument could be made that, as the Union offered to accept the requested information in a form which did not include employee names, it was unnecessary to reach the issue of whether disclosure of names would violate the Privacy Act. However, the Judge did not address that hypothetical argument further and, instead, resolved the complaint on the basis of the original Union request and ordered the Respondent to disclose the list of names specified in that request. See also infra notes 9 and 12.

6. As no exceptions to this finding were filed, we will not address it further.

7. The complaint cited as support for the alleged failure a letter sent by the Respondent to the Charging Party approximately 20 days after the date of the charge which stated that providing names of employees who had received outstanding appraisals would violate the Privacy Act.

8. We note that, in its original brief accompanying the stipulation to the Authority, the Respondent raised and relied on events that occurred after the date of the complaint. As such, the Respondent bears responsibility, in part, for the scope of the remand to which it now objects. Moreover, not all evidence concerning conduct occurring after a complaint is inadmissible. For example, evidence concerning post-complaint conduct is admissible for such purposes as determining an appropriate remedy. 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 44 FLRA 1098, 1103 (1992). In addition, the National Labor Relations Board has held that "closely[-]related events post-dating [a] complaint" may be considered in order to "cast light" on events encompassed in a complaint. NLRB v. Handy Hardware Wholesale, Inc., 542 F.2d 935, 939-40 (5th Cir. 1976), cert. denied, 431 U.S. 954 (1977). In the absence of specific precedent under the Statute, the Authority has stated that "an analogy to comparable legal developments in the private sector is a useful guide." U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1380 (1990); see also Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983), enforcing American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982).

9. As set forth supra note 5, the parties failed to agree on whether the requested information could be provided in a modified form acceptable to the Union, and the Judge ordered the Respondent to disclose the list of names of the recipients of outstanding ratings as the Union originally requested. Therefore, we address the Privacy Act as it applies to the originally requested list. See also infra note 12.

10. 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 at 346.

11. In his decision, which predated issuance of FAA, the Judge relied on previous Authority decisions where the Authority "look[ed] at the public interest embodied in both section 7101 and 7114(b)(4) of the Statute." Judge's Decision at 10 (citing, among other decisions, INS and Commerce). However, as noted above, we no longer consider interests embodied in the Statute as a public interest cognizable in our Exemption 6 analysis. The Judge also relied on U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191 (1991) (National Aviation Support Facility) and SSA, where the Authority applied the public interest identified in Reporters Committee in an alternative analysis supporting the disclosure of unsanitized information. For reasons set forth in FAA, we rejected the conclusion in SSA that early resolution of grievances is a public interest cognizable under FOIA Exemption 6. FAA, 50 FLRA at 348-49 n.11. In addition, we concluded that the proper administration of a collective bargaining agreement would not be a public interest cognizable under FOIA Exemption 6 unless it could be shown that publ