51:0115(12)CA - - FAA, NY Tracon, Westbury, NY and National Air Traffic Controllers Association, NY Tracon Local - - 1995 FLRAdec CA - - v51 p115



[ v51 p115]
51:0115(12)CA
The decision of the Authority follows:


51 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL AVIATION ADMINISTRATION

NEW YORK TRACON

WESTBURY, NEW YORK

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU (AFL-CIO)

NEW YORK TRACON LOCAL

(Charging Party/Union)

BY-CA-20367

_____

DECISION AND ORDER

September 1, 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.(1) In addition, in response to the Authority's Order dated March 11, 1994, the General Counsel and the Respondent filed supplemental briefs addressing the applicability of United States Department of Defense v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994) (Department of Defense).(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 a copy of an Equal Employment Opportunity (EEO) settlement agreement requested under section 7114(b)(4) of the Statute. For the reasons set forth 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.(3) Therefore, we dismiss the complaint.

II. Stipulation

The National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO) (NATCA), is the exclusive representative of a nationwide unit of the Respondent's employees which includes air traffic control specialists. New York TRACON Local (Union), an agent of NATCA, represents unit employees at the Respondent's facility in Westbury, New York.

After a unit employee filed a formal EEO complaint, a meeting regarding the complaint was attended by the Respondent, the employee, the employee's attorney, and the Union. The "employee's allegations of discrimination and possible resolution of those allegations were discussed" at this meeting. Stip. at 2, para. 5. Additional meetings were subsequently held, but the Union was not permitted to attend them. Ultimately, the Respondent and the employee executed an agreement resolving the allegations of the EEO complaint, which provided for the employee's reassignment to a non-supervisory, non-unit air traffic control specialist position. The Respondent then advised the Union of the settlement agreement and, pursuant to its terms, of the employee's reassignment.

Shortly thereafter, the Union requested, and the Respondent denied the request for, a copy of the settlement agreement. The employee "has refused to agree to release" of the agreement to the Union. Stip. at 2, para. 11. Although the Respondent offered to bargain over the impact of the reassignment, it maintained that the specific provisions of the agreement were confidential. Subsequently, numerous grievances were filed by unit employees over the reassignment.(4)

III. Positions of the Parties

A. General Counsel

The General Counsel contends that disclosure of the settlement agreement is not prohibited by the Privacy Act and that the information is necessary under section 7114(b)(4) of the Statute.

The General Counsel maintains that disclosure of the requested information would serve a compelling public interest by revealing actions the Respondent agreed to take in resolving an EEO complaint. In the General Counsel's view, this information would open to public scrutiny the Respondent's efforts to remedy alleged past discrimination.

The General Counsel asserts that "[t]he only . . . privacy interest the employee might have in nondisclosure of the . . . settlement agreement would be to avoid revealing [the employee's] identity or the [agreement's] specific [terms]." General Counsel's Supplemental Brief at 5. However, the General Counsel points out that the employee's identity has previously been disclosed. In addition, according to the General Counsel, disclosure of the settlement agreement would not tend to inhibit the filing and processing of EEO complaints. The General Counsel argues that the terms of the settlement agreement are not "purely personal," but reflect the action an agency agrees to take in furtherance of its responsibilities under antidiscrimination laws. Id.

Finally, the General Counsel contends that the requested information is "necessary" within the meaning of section 7114(b)(4) of the Statute because it would enable the Union to evaluate and process the grievances that were filed over the employee's reassignment.

B. Respondent

In its supplemental brief, the Respondent asserts that an employee has significant privacy interests in maintaining the confidentiality of an EEO settlement agreement. More specifically, the Respondent claims that "it is difficult to imagine a greater privacy interest in government records than an employee's in protecting the personal elements of a negotiated settlement." Respondent's Supplemental Brief at 3. The Respondent argues that, by contrast, there is no public interest in the information requested because disclosure of the terms of the EEO settlement agreement would not contribute to the public's understanding of how the Respondent performs its statutory duties, which promote civil aviation and establish aviation standards to ensure public safety. Even assuming that disclosure of the information would serve the public interest, the Respondent maintains that such public interest is insufficient to outweigh the significant privacy interests of the employee in this case.

The Respondent additionally points out that it advised the Union of the employee's reassignment for the purpose of bargaining over its impact. In the Respondent's view, its refusal to disclose the agreement's terms was consistent with the specific intent of Congress to safeguard personal information that an employee might not wish to have publicly disclosed.

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 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.(5)

In applying this analytical framework to the case before us, we note that it is undisputed that the requested settlement agreement is contained in a system of records.(6) In addition, we find that both the Respondent and the General Counsel have demonstrated, respectively, that disclosure of the information would implicate employee privacy interests, and serve the public interest.

With regard to the former, employees who pursue employment discrimination claims do so in general with an expectation of privacy, at least during certain stages of applicable proceedings. In this regard, EEOC procedures for processing charges of unlawful discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976), recognize individual privacy interests in several respects. See, e.g., 29 C.F.R. §§ 1601.7 (a person on whose behalf a charge of discrimination is made may request that the EEOC keep his or her identity confidential); 1601.22 (charges and the information obtained in connection with the investigation of those charges may not be made matters of public information prior to the initiation of formal proceedings); 1601.26 (information regarding informal settlement efforts may not be made matters of public information without the written consent of the persons concerned). See also International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. NLRB, 648 F.2d 18, 26-27 (D.C. Cir. 1980) (court relied on Congressional intent in concluding that the privacy and confidentiality interests of individual union members take precedence over a union's demand for copies of EEO complaints). Although EEOC regulations governing employment discrimination claims involving Federal agencies do not contain similar express confidentiality provisions, see 5 C.F.R. part 1613, "Congress' concern ... that ... confidentiality is important in achieving voluntary compliance with the goals of Title VII" has been found relevant in the Federal sector as well. Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983). Thus, both Congress and the courts have recognized the privacy interests of employees who file discrimination complaints. See also U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 200-01 (1991) (Authority recognized various potential privacy interests in transcript of EEOC hearing).

As the General Counsel points out, however, in this case the identity of the bargaining unit employee whose discrimination complaint resulted in the requested settlement agreement is already known to the Union. Thus, the fact that she filed the complaint is not "private", insofar as this requestor is concerned. The General Counsel argues, in this regard, that the only information that would be revealed by the document is (1) the employee's identity, which is already known; and (2) the specific terms of the agreement, which encompass the actions Respondent has agreed to undertake to comply with antidiscrimination laws. Thus, the General Counsel asserts, the privacy interests implicated by disclosure of the settlement agreement in this case are "virtually nonexistent."(7) General Counsel's Supplemental Brief at 5.

The stipulated record does little to elucidate this matter, since the parties provided neither a copy of the Settlement Agreement for our in camera review, nor an agreed-upon description of its contents. However, the employee's refusal to approve release of the agreement to the Union, Stip. at 2, para. 11, does not support the General Counsel's cramped description of its content. Rather, it suggests that the employee views the document as revealing information she wishes to remain private. In short, the record before us does not provide a basis for finding that the privacy interests implicated by disclosure are minimal or nonexistent.

With respect to the public interest in disclosure to be weighed in the Privacy Act analysis,(8) we agree with the General Counsel that the requested information would shed light on agency actions taken to remedy unlawful discrimination and that this is an important public interest. However, although disclosure of EEO settlement agreements in general would reveal such information, we are not persuaded that this public interest is served by disclosing such information in a form that identifies employees who have filed EEO complaints and/or connects them with personal information revealed in the agreements. See, e.g., Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984); FAA, 50 FLRA at 349. Cf. United States Department of State v. Ray, __ U.S. __, 112 S. Ct. 541, 549 (1991) (public interest found to have been adequately served by disclosure of redacted documents); Norwood v. Federal Aviation Administration, 993 F.2d 570 (6th Cir. 1993) (disclosure of documents pertaining to settlement offers of reinstatement to fired air traffic controllers, redacted of identifiers, found to serve the public interest); 29 C.F.R. § 1601.22 (prohibition on disclosure of information does not apply to publication "in a form which does not reveal the identity of charging parties, respondents, or persons supplying . . . information."). In this case, because the agreement was requested for only one name-identified employee, it is not possible to redact the document to protect the identity of the individual whose privacy is at stake.(9) See Schonberger v. National Transportation Safety Board, 508 F. Supp. 941, 945 (D.D.C. 1981) (court found "no reasonable way to . . . protect . . . privacy because the request sought one document, identified by name and date, applying solely to one individual."). Although disclosure of the unsanitized settlement agreement might assist the Union in performing its representation functions, it is clear that this interest is specific to the Union and, as such, may not be considered in assessing the public interest under Exemption 6. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989); Department of Defense, 114 S. Ct. at 1014.

In these circumstances, we conclude that the public interest that would be served by disclosing the terms of the settlement agreement is outweighed by the invasion of privacy that would result. Accordingly, as no other exception to the Privacy Act has been asserted, we find that disclosure of the EEO settlement agreement would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and, thus, is prohibited by law. 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's brief, filed in response to the parties' stipulation, was untimely under 5 C.F.R. § 2429.1 and has not been considered in this decision.

2. The General Counsel also filed a supplemental brief concerning whether the information is necessary, within the meaning of section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (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 Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552(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 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.

4. The grievances are being held in abeyance pending resolution of the unfair labor practice complaint now before us.

5. 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.

6. The Authority has found that discrimination complaint files of FAA employees constitute personnel or other similar files within the meaning of FOIA Exemption 6. See U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 199 (1991).

7. We note that the General Counsel's characterization of the contents of the settlement agreement also may be relevant to determining whether the document is "necessary" under section 7114(b)(4)(B) of the Statute. In addition to already knowing the EEO complainant's name, the record establishes that the Union attended a meeting "where the [complainant's] allegations of discrimination . . . were discussed." Stip. at 1-2, para. 5. Further, the Union already knows at least one action the Agency agreed to undertake: reassignment of the complainant. See Stip. at 2, para. 7 (parties stipulated that the settlement agreement "provided for the [complainant] to be reassigned to an [sic] nonsupervisory air traffic control specialist position in the Traffic Management Unit . . . at the New York TRACON."). If the information revealed by the requested settlement agreement and related to the Union's stated need is already known to the Union, it is difficult to understan