51:0058(7)CA - - SSA, San Francisco Bay Area and AFGE, Local 3172 - - 1995 FLRAdec CA - - v51 p58



[ v51 p58 ]
51:0058(7)CA
The decision of the Authority follows:


51 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

SAN FRANCISCO BAY AREA(1)

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3172

AFL-CIO

(Charging Party/Union)

SF-CA-20613

_____

DECISION AND ORDER

August 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

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 Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.(2)

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 furnish the Charging Party with unsanitized information relating to performance awards under section 7114(b)(4) of the Statute.

For the following reasons, 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.(3) Accordingly, we dismiss the complaint.

II. Stipulation

The Union filed grievances on behalf of two unit employees who received performance ratings of "excellent" but did not receive performance awards. In connection with the processing of the grievance, the Union requested "for the appraisal years 1990-1991, 1989-1990 and 1988-1989 an unsanitized list of excellent or higher rated employees who did not receive awards as well as who did receive awards." Stip. Exh. 19 at 1.(4) In response, the Respondent stated that it had already "given" the Union the relevant information for processing the grievances and that the additional information requested was not "relevant to the grievances at hand."(5) Stip. Exh. 20 at 1.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that the requested information is not prohibited from disclosure by the Privacy Act but, rather, is releasable under Exemption 6 of the FOIA. The General Counsel argues that disclosure of the information would serve an important public interest in permitting the Union to carry out its representational function of pursuing grievances and would result in a minimal intrusion on the employees' privacy interests. The General Counsel further maintains that, consistent with Department of Defense, disclosure of the information would further the public interest in promoting the fair and equitable treatment of Federal employees and the application of merit principles, as well as in preventing illegal discrimination. According to the General Counsel, the information would open to public scrutiny the manner in which the Respondent administers its performance award program. The General Counsel also contends that disclosure of the employees' names does not constitute a clearly unwarranted invasion of the employees' personal privacy because it is not stigmatizing and would not subject employees to harassment, disgrace, or loss of employment or friends. The General Counsel adds that the information would not reveal any potentially negative or embarrassing comments about employees' performance, and there is no evidence that the Union would publicize the information or circulate the names of employees.

The General Counsel also claims that the information satisfies the other criteria contained in section 7114(b)(4) of the Statute.

B. Respondent

The Respondent contends that the unsanitized performance award information requested by the Union is prohibited from disclosure by the Privacy Act because such disclosure would constitute a clearly unwarranted invasion of personal privacy under FOIA Exemption 6.(6) The Respondent claims that the information sought "would not substantially enlighten the public's knowledge regarding the workings of the Agency's practices." Respondent's Brief at 12. The Respondent argues, based on Department of Defense, that unions have no special standing with regard to information requests and that, consequently, the General Counsel's arguments regarding the Union's representational responsibilities are misplaced.

The Respondent further argues that affected employees' privacy interests outweigh the public interest in disclosure. The Respondent asserts that disclosure of the requested information could create "an 'unpleasant' atmosphere" for employees and that releasing such information would have a potentially negative effect on employee morale. Respondent's Brief at 14. Further, the Respondent argues that the Union may acquire such information through direct contact with employees. The Respondent states that, when balancing the public interest embodied in the FOIA against employees' privacy interests, the addition of the names to the data already provided to the Union would not further the public's right to be informed about Government operations.

Finally, in its answer to the complaint, the Respondent denied the allegations of the complaint that the requested information: is normally maintained by the Respondent; is reasonably available; is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

IV. Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 of the FOIA and, therefore, that disclosure of the information is prohibited by the Privacy Act. Accordingly, without addressing whether the information is necessary within the meaning of section 7114(b)(4), we conclude that the Respondent did not violate the Statute by refusing to provide the information.

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 an 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 FOIA Exemption 6 and, therefore, is prohibited by the Privacy Act. We stated that 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" 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 the burdens, we will, where appropriate, consider matters that are otherwise apparent.

We held in FAA, for reasons more 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.

Applying this analytical framework, we note that the Respondent does not address whether the information is contained in a system of records. However, as we did in FAA with respect to performance appraisals, 50 FLRA at 346, we find that it is proper to take official notice of the fact that material pertaining to employee awards is contained in a system of records. See 55 Fed. Reg. 3843 (1990).

The Authority previously has found, and the Respondent has established here, that employees have significant privacy interests in their performance appraisals because performance appraisals contain extremely personal information that employees may wish to keep confidential. See FAA, 50 FLRA at 347. Unquestionably, such privacy interests extend to employees' final ratings. In addition, the Authority has determined that disclosure of favorable, as well as unfavorable, information could subject employees to embarrassment and jealousy among co-workers, which could result in discord at the workplace. Id.; see also U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995) (Office of Justice Programs); U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388 (1995).

In this case, the requested information encompasses two lists of employees' names: (1) those whose performance was rated excellent or higher who received awards; and (2) those whose performance was rated excellent or higher and who did not receive awards. These lists inherently would identify all employees who were rated excellent or higher. The lists also would reveal, by omission, rating information of all other employees. That is, it is obvious that an employee whose name did not appear on either list would have received a rating lower than excellent. See Office of Justice Programs, 50 FLRA at 479-80. For the reasons more fully discussed in FAA, and the other cited decisions, we find that employees have substantial privacy interests in maintaining the confidentiality of information regarding their performance appraisals, including their final performance rating.

On the other hand, we find no evidence in the record to establish that disclosure of the requested information would more than minimally, if at all, serve the public interest, because the two lists of employees would reveal little about the Government's operations. See Office of Justice Programs, 50 FLRA at 480-81. The General Counsel asserts that disclosure of the requested information would serve the public interest in promoting the fair and equitable treatment of Federal employees and the application of merit principles and in preventing illegal discrimination. We agree with the General Counsel that disclosure of information that would permit review of an agency's award system to ensure that it is administered in a fair and equitable manner, without discrimination, and in accordance with laws, rules and regulations, would shed light on Government operations and allow the public to monitor the agency's expenditure of funds allocated for awards.

However, the General Counsel has not established how disclosure of the requested lists would serve that public interest.(7) The General Counsel has not shown how the names of award recipients and nonrecipients, who have received ratings of excellent or higher, would enable a member of the public to assess whether or not the Respondent has administered its awards program fairly and in a fiscally sound manner. Although disclosure of the requested information likely would enhance the Union's ability to fulfill its representational responsibilities, 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.(8) United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) ("[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[.]").

Based on the foregoing, we conclude that, on balance, the public interest that would be 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 FOIA Exemption 6 and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the 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. During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.

2. 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). Both the General Counsel and the Respondent filed briefs. The General Counsel and the Respondent also filed briefs 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).

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 (b)(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 constitute 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.

4. On several previous occasions, the Union requested, among other things, information concerning employees who received awards in 1989, 1990, and 1991. The Respondent provided information for fiscal year 1991 in the form of a grid depicting employees who received a summary rating of "excellent" and did not receive performance awards. The grid identified employees by position and branch office, but not name, and included numerical information on each employee's overall performance rating and individual job element ratings. The Respondent also furnished a chart showing bargaining unit employees who received awards in 1991, by name, office, grade, position, and rating level.

As an alternative to the request before us in this proceeding, the Union asked that the information be provided with "common identifiers" such as age, race, sex and national origin. Stip. Exh. 19 at 1. However, as no party contends that information in this form is currently desired or that the Respondent's failure to provide the information in this form is in dispute in this case, we will not address this aspect of the request further.

5. Although, at that time, the Respondent did not assert a Privacy Act bar to disclosure of the information sought, the Respondent defended its conduct on that basis in proceedings before the Authority.

6. The Respondent also maintains that disclosure is not authorized under the routine use exception to the Privacy Act. 5 U.S.C. § 552(b)(3). However, as the General Counsel did not allege that the requested information is disclosable as a routine use, we do not address that issue further.

7. In general, the public interest in awards information is recognized in 5 C.F.R. § 293.311, which permits public access to certain enumerated information about present and former Federal employees, including "[p]resent and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials)[.]" 5 C.F.R. § 293.311(a)(4). However, under 5 C.F.R. § 293.311(b)(1), an agency may not disclose information if its disclosure "would reveal more about the employee on whom information is sought than the six enumerated items, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" In this case, disclosure of the requested lists would reveal information regarding each employee's performance rating and, we conclude, would result in a clearly unwarranted invasion of the employees' privacy.

8. As we also stated in FAA, a union's commitment not to disclose information is no longer relevant in balancing the respective interests. FAA, 50 FLRA at 346, n.8.



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