51:0075(9)CA - - EEOC, Phoenix District, Phoenix, AZ and AFGE Local 3230 - - 1995 FLRAdec CA - - v51 p75



[ v51 p75 ]
51:0075(9)CA
The decision of the Authority follows:


51 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PHOENIX DISTRICT

PHOENIX, ARIZONA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3230, AFL-CIO

(Charging Party/Union)

SA-CA-20701

_____

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 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 performance review and related information requested 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 would violate the Privacy Act.(2)

II. Stipulation

Respondent issued "periodic performance reviews" to investigators (unit employees who investigate claims of employment discrimination) for the periods April 1 through May 31, 1992, and June 1 through July 31, 1992.(3) The Union requested that the Respondent provide it with, among other things: (1) periodic reviews for the two periods noted above for all investigators at the Respondent's office; (2) copies of investigators' work products which were considered deficient; and (3) copies of official documentation given to investigators regarding any topic listed in the periodic reviews.(4) The Union stated that it needed the requested information to investigate a potential unfair labor practice.(5) The Respondent denied the Union's requests on the grounds that disclosure of the information would violate employee privacy rights.(6)

III. Positions of the Parties

A. General Counsel

The General Counsel asserts that the Respondent improperly denied the Union's requests because, in balancing the public interest served by disclosure of the information against the privacy interests affected thereby, as required by the FOIA, the public interest outweighs the privacy interests. As such, according to the General Counsel, release of the information would not violate the Privacy Act.

The General Counsel argues that disclosure would serve the public interest by showing whether the Respondent "has administered its performance appraisal system in an equitable manner, thus promoting the fair and equitable treatment of Federal employees, the absence of illegal discrimination, and the application of merit principles." GC's Supplemental Brief at 4. The General Counsel asserts that disclosure also would reveal the manner in which the agency monitors the quality of the work products generated in fulfilling its statutory mission. On the other hand, the General Counsel contends that affected employees have only limited privacy interests in the requested information.

The General Counsel also asserts that the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, to enable the Union to determine whether to file an unfair labor practice charge. According to the General Counsel, the record in this case does not disclose any countervailing interests against disclosure.

B. Respondent

The Respondent argues that disclosure of the requested information would result in a clearly unwarranted invasion of privacy under Exemption 6 of the FOIA and, as a result, is prohibited by the Privacy Act. The Respondent claims that release of the requested information would not serve the public interest because it would not substantially shed light on Government operations, and that affected employees have substantial personal privacy interests in performance-related materials.

The Respondent also claims that the requested information is not necessary, under section 7114(b)(4) of the Statute. According to the Respondent, the Union failed to demonstrate that the information is necessary, and that, in determining whether it is, the Authority must consider not only the Union's interest in disclosure, but also any countervailing interests against disclosure.

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. Accordingly, without addressing the parties' arguments as to 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 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" 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.(7)

In this case, 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.(8) In agreement with the Respondent, and for reasons discussed more fully in FAA, we find that employees have substantial privacy interests in not having performance evaluation information disclosed, whether that information concerns full-year appraisals or, as in this case, periodic reviews of performance and work products. The General Counsel's conclusory assertions that release of interim performance appraisal information would result in only a "minimal intrusion on employees' privacy and is not stigmatizing" do not provide a basis for finding otherwise. GC's Brief at 7. The General Counsel's reliance on cases that did not involve release of unsanitized performance appraisals is misplaced. Id. Moreover, the possibility that requested information may not be stigmatizing is not dispositive because employees have privacy interests in favorable appraisals. For example, Commerce, 962 F.2d 1055, 1059 (D.C. Cir. 1992); Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984). Nevertheless, as we noted in FAA, such privacy interests may be heightened when the information contained in appraisals is derogatory. See Gilbey v. Department of the Interior, 1990 WL 174889 (D.D.C. 1990). With respect to the latter point, common sense dictates that such interests would extend to the requested work products which the Respondent considered deficient, insofar as those documents are identified with the employees who authored them.(9)

With respect to the requested "copies of memorand[a], or official documentation given to [i]nvestigators regarding any topic listed in their appraisal[s]," Stip. at 3, para. 12, the record does not amplify the nature or content of these documents. If, for example, they are generic instructions regarding assignments or tasks, then it is difficult to conceive of any individual privacy interest that would be implicated by disclosure. However, there is nothing in the record indicating that the General Counsel, Union, or Respondent view these documents as presenting any different privacy interests from the other documents requested. Rather, the record indicates that, since the time of the Union's request to the present, the parties have treated the different categories of documents requested by the Union as identical for purposes of applying the Privacy Act. In the absence of any support in the record for distinguishing between these documents and the others, and the absence of any assertion that this would be appropriate, we construe them as additional performance review-related documents identified with individual employees who are the subject of the reviews. As such, the affected employees' personal privacy interests in the requested appraisal-related documents are, on the basis of the record before us, the same as their interests in the unsanitized appraisals themselves.

With respect to the public interest side of the equation, we agree with the General Counsel that the release of the requested information would shed light on Government operations and, therefore, would serve the public interest defined by the Supreme Court as the "only relevant" interest to be considered. Department of Defense, 114 S. Ct. at 1012. In particular, disclosure of the requested material 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 parties' arguments and the stipulated record leads us to conclude that the public interest that would be served by disclosure of the requested information also could be substantially, if not equally, served by disclosure of sanitized information which does not identify individual employees by name. See Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (in concluding that agency was justified in redacting names and identifying information from employee evaluation forms, the court stated that public interest in the forms could "be substantially advanced by means short of disclosure of the names . . . found on evaluation forms."). Put simply, as in FAA, the specific portion of the requested information which implicates employees' strong privacy interests is unnecessary to the public interest. See also Department of State v. Ray, __ U.S. __, 112 S. Ct. 541, 549 (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 . . . .").

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. 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 Exemption 6 of the FOIA.(10) See 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[.]").

In this situation, we conclude, on balance, that 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 result in 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 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 Respondent also filed a Supplemental Memorandum which the General Counsel has moved to strike on the ground that it constitutes a reply brief not permitted by the Authority's Regulations. We grant the General Counsel's motion and have not considered the Respondent's Supplemental Memorandum. See U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA 1210 n.1 (1993). Subsequently, 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 parties were later provided an opportunity to submit supplemental briefs concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute. The Respondent and the General Counsel filed supplemental briefs on this issue also.

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 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 the requested information. However, no other exceptions are asserted to apply in this case.

3. Although it appears from the record that these periodic reviews do not constitute the annual performance appraisals required by 5 U.S.C. § 4301, the record does not disclose the basis for, or any requirements governing, the periodic reviews. We will assume, for the purposes of this decision, that the periodic reviews constitute less-than-full-year assessments of employee performance based on application of existing performance standards and elements.

4. With respect to the performance reviews, the requests did not indicate whether the Union desired the documents to include names and other identifying information. However, it is clear from the record that the Respondent assumed that such unsanitized information was requested, and there is no evidence that the Union ever clarified its requests to encompass, or in any other way indicated a willingness to accept, sanitized documents. For example, Stip., Exhibit 4 (in its response to the Union's first request for information, Respondent denied the request for appraisals "because of the privacy rights of the affected employees"); Stip., Exhibit 5 (in its second request, the Union stated that "[t]he privacy rights of individuals do not override the Union's right to know"). In addition, briefs filed with the Authority amply demonstrate that the Respondent and the General Counsel believe that unsanitized performance review-related documents are involved. In these circumstances, we construe the Union's request as encompassing unsanitized information and reach our decision based on that construction.

5. The parties stipulated that the Union suspected that its representatives, Cheryl Janes and JoAnn Metz, "had been rated disparately in the periodic performance reviews[]" and that the Union requested the information to verify its suspicion. Stip. at 5-6, para. 21.

6. Other data requested by the Union were provided by the Respondent and are not part of this dispute.

7. As we noted in FAA, a finding that disclosure is not prohibited by law does not end the inquiry into whether an agency's failure to disclose requested information violates the Statute. In order to sustain such a violation, we must find that all of the requirements of section 7114(b)(4) have been met. FAA, 50 FLRA at 345.

8. The parties stipulated that the requested information is contained in a system of records covered by the Privacy Act. Stip. at 5, para. 19.

9. A work product that is not identified with the employee who authored it would present distinguishable facts and, accordingly, would require a different analysis. As indicated above, n.4, the record in this case demonstrates the parties' understanding that the work products involved herein could be identified with individual employees and, further, that the Union requested those work products in an unsanitized form. See also Stip. at 5, para. 18 ("the information requested by the Union constituted the period performance reviews of the investigators . . . and documentation maintained by supervisors in support of the periodic performance reviews.").

10. For the same reason, the General Counsel's reliance on the interest in the early resolution of grievances identified by the Authority in United States Department of Veteran