51:0066(8)CA - - VA Medical Center, Northport, NY and AFGE, Local 1843 - - 1995 FLRAdec CA - - v51 pNo.



[ v51 p66 ]
51:0066(8)CA
The decision of the Authority follows:


51 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NORTHPORT, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1843

(Charging Party)

BY-CA-21304

_____

DECISION AND ORDER

August 31, 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 Respondent and the General Counsel filed briefs with the Authority.(1)

The Charging Party (the Union) did not file a brief. (2 )

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with information used to evaluate candidates for a maintenance foreman position requested under section 7114(b)(4) of the Statute. (3)

For the reasons stated below, we find that the Respondent did not violate the Statute because disclosure ofthe requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a.(4) Therefore, we dismiss the complaint.

II.    Stipulation

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a unit of employees of the Department of Veterans Affairs. The Union, an agent of AFGE, represents the employees in the bargaining unit.

The Union requested the Respondent to furnish it with the information used to evaluate candidates for a maintenance foreman position. The information included performance appraisals of unit employees who applied for the position and the "supervisory appraisal for promotion" forms (supervisory-potential forms) for those same employees. Stipulation, para. 11. "The information was needed by the [Union] to evaluate a potential grievance concerning the non-selection of a bargaining unit employee for promotion to a [m]aintenance [f]oreman position." Stipulation, para. 10.

The Respondent furnished the Union with sanitized copies of the requested information. The Union "agreed to accept sanitized copies of the appraisals without the names of the bargaining unit employees who were the subject of the [appraisals] and supervisory-potential forms." Stipulation, para. 11. However, the Union objected to the Respondent's removal of the names of the supervisors and/or approving officials responsible for the appraisals and supervisory-potential forms and requested that the Respondent furnish the information with those names included. The Respondent has refused to supply the requested information with those names included, citing Privacy Act considerations. The Respondent informed the Union that it had sought permission from the other applicants to release the information, but at least one unit employee who had applied for the position refused to permit the release of his appraisal to the Union. The Respondent stated to the Union that because there were so few candidates, supplying the names of the supervisors and/or approving officials "is tantamount to supplying the employee's name." Stipulation, Exhibit 5 at 4.

The Union subsequently filed a grievance on behalf of a unit employee who was not selected for the maintenance foreman position, and the Union has pursued the grievance to arbitration. Stipulation, Exhibit 7.

The parties stipulated that the requested information is: (1) necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining; i.e., so that the Union could determine whether to pursue a grievance, as well as to pursue the grievance referred to above; (2) maintained by the Respondent in the regular course of business; (3) reasonably available to the Respondent; and (4) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

III.    Positions of the Parties

A. The General Counsel

The General Counsel contends that disclosure of the requested information is not barred by the Privacy Act. The General Counsel asserts that the disclosure of the names of supervisors and officials who played a responsible role in the appraisal and selection process serves the public interest as discussed in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee), because "'the early resolution of potential grievances and the proper administration of agency performance appraisals systems are the type of public interests which disclosure of information is intended to further.'" (citation omitted). General Counsel's Brief at 9. Moreover, the General Counsel argues that because the supervisors and officials responsible for the appraisals and selection in this case "exercised authority on behalf of the [A]gency, their expectation of personal privacy in the data, or interest in its nondisclosure, is less substantial than that of the employees they rated or reviewed" and, therefore, the public interest under the FOIA "outweighs their interest in nondisclosure." General Counsel's Supplemental Brief at 4.

B. The Respondent

The Respondent contends that disclosure of the requested information--the names of the supervisors and/or approving officials responsible for the appraisals and the supervisory-potential forms--is prohibited by the Privacy Act. The Respondent asserts that it "approached the employees who were the subjects of the performance appraisals . . . [and] [t]hey refused to give consent to the release" of the appraisals. Respondent's Brief at 2. The Respondent argues that without the consent of the employees, disclosure of the appraisals was prohibited unless required by the FOIA.

According to the Respondent, it sanitized the names of the supervisors and other officials from the requested performance appraisals and supervisory-potential forms because "the failure to do so would allow a third party to identify the employees." Id. at 3. The Respondent contends that "the failure to adequately sanitize the records would be a violation of the Privacy Act . . . ." Id. at 4.

IV.    Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information is not required by the FOIA because release of the data would constitute a clearly unwarranted invasion of personal privacy and, therefore, is prohibited by the Privacy Act. Accordingly, 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 the analytical approach we will follow in assessing an agency's claims 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 bears the burden of demonstrating: (1) that the information requested is contained in a "system of records" within the meaning of 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 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 concerning 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.

It is uncontroverted that the Respondent has already provided the Union with sanitized copies of the information requested, including, among other things, the candidates' applications, the numbers of candidates, the numbers of candidates referred to the Promotion Panel and to the selecting official, and copies of the candidates' qualifications. Exhibits 5 and 6. It is also uncontroverted that: (1) there were only a "few" candidates; (2) the Union's request for copies of appraisals and supervisory-potential forms with the names of supervisors and reviewing officials attached pertained to only two candidates; and (3) the Union stated, in an electronic message, that "anyone familiar with the employee[]s and service can deduce who the employees are by their appraisals[,] the same as to who are management officials." Exhibit 5. See also Exhibit 6.

In view of these facts, and noting that there is no assertion to the contrary, we conclude that disclosure of the supervisors' and other officials' names on the requested performance appraisals and supervisory-potential forms would allow identification of at least the two candidates covered by the Union's request. As such, disclosure of the requested information would effectively require release of unsanitized appraisals for those employees. (5) See U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 392 (1995) (Jacksonville ATC Tower) (where the information requested included disclosure of redacted material, such as supervisors' names, after sanitized documents had been provided to the union, we found that disclosure of the requested information would effectively require release of unsanitized appraisals for all employees included in the request).

Moreover, we also find, in agreement with the Respondent, and for reasons set forth in FAA, that the interest of those two candidates in shielding their individual performance appraisals from public view is substantial.(6) The Union's request requires disclosure of the candidates' appraisals regardless of whether those appraisals are favorable or unfavorable to the candidate. 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 in the workplace. Id.; see also U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995); Jacksonville ATC Tower, 50 FLRA at 393.

As articulated by the General Counsel, the release of the requested information implicates a public interest cognizable under Exemption 6 of the FOIA. In particular, disclosure of the appraisals would permit review of the ways in which the Respondent administers its performance appraisal system. See Jacksonville ATC Tower,50 FLRA at 393.

However, our review of the record leads us to conclude that this public interest would not be enhanced by a disclosure of performance appraisals and supervisory-potential forms that includes information which identifies the employees who are appraised. See Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (in finding that the agency was justified in deleting names and other personal identifiers from employee evaluation forms, court stated that public interest in forms could "be substantially advanced . . . short of disclosure of the names . . . found on the evaluation 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, holding 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"). We find, therefore, that the General Counsel has not established that the disclosure of the identifying information involved in this case enhances the public interest articulated.

In this connection, by identifying the candidates who are the subject of particular performance appraisals and supervisory-potential forms, disclosure of those appraisals and forms containing the names of supervisors and reviewing officials may well enhance the Union's ability to determine whether the grievance in this case is justified. However, 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[.]").

In the circumstances of this case, we conclude that, on balance, the public interest served by disclosure of the two performance appraisals and supervisory-potential forms including the names of supervisors and reviewing officials is outweighed by the 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:

1. The Authority issued an order to show cause why the General Counsel's brief should be considered as timely filed under section 2429.1(a) of the Authority's Regulations, which provides that briefs must be filed with the Authority within 30 days from the date of the Regional Director's order transferring the case to the Authority. The Regional Director transferred the case, by mail, on December 23, 1992. Therefore, adding the additional 5 days provided under section 2429.22 of the Authority's Regulations, because the Regional Director's order was served by mail, the brief had to be filed by January 27, 1993. As the General Counsel's brief was postmarked on January 26, 1993, it was timely filed.

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). Only the General Counsel filed a brief 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)(B) of the Federal Service Labor-Management Relations Statute (the Statute), in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).

3. Section 7114(b)(4) of the Statute provides that the obligation to bargain in good faith includes the obligation:

in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]

4. 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(1)(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.

5. The parties do not stipulate that, and 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.

6. The Respon