51:0147(16)CA - - VA Medical Center, Veterans Canteen Service, Newington, CT and NAGE, Local R1-109 - - 1995 FLRAdec CA - - v51 p147



[ v51 p147 ]
51:0147(16)CA
The decision of the Authority follows:


51 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

VETERANS CANTEEN SERVICE

NEWINGTON, CONNECTICUT

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109, SEIU, AFL-CIO

(Charging Party/Union)

BN-CA-20960
BN-CA-20962
BN-CA-20963
BN-CA-20965
BN-CA-21311

_____

DECISION AND ORDER

September 15, 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)

The consolidated 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 Union, under section 7114(b)(4) of the Statute, with the performance ratings, and supporting data, for unit and non-unit employees in specified organizational subdivisions. 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.(2) Accordingly, we dismiss the complaint.

II. Stipulation

The Union requested that the Respondent provide copies of the performance ratings, and all data used in the development of those performance ratings, of all unit employees in the following organizational subdivisions: (1) Security Section; (2) Building Management Services; (3) Heart Station; and (4) Engineering Service, for the rating period ending in March 1992. The Union also requested the same information for all unit and non-unit employees in the Respondent's Laboratory Service.

The Union requested the information in order to aid it in processing grievances that had been filed under the parties' negotiated grievance procedure for bargaining unit employees in the Respondent's Security Section, Building Management Services, Heart Station, and Engineering Service. More particularly, the Union requested the performance ratings in unsanitized form so that those ratings could be used to make valid comparisons between the grievants and other bargaining unit employees performing the same work in the same department or section. The Union also requested the performance ratings of non-unit employees in the Respondent's Laboratory Service because, according to the Union, those non-unit employees share common supervision with the grievant in the Laboratory Service, perform some work which is similar in nature, and are subject to the same critical element that is at issue in the grievance.

The parties stipulated that the information requested by the Union is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. The parties also stipulated that the Respondent had provided the Union with copies of the performance ratings, and supporting data, of employees on whose behalf the Union had filed grievances, but had refused to furnish the requested information for employees who had not filed grievances.

III. Positions of the Parties

A. General Counsel

The General Counsel argues that the unsanitized performance ratings of unit employees who are performing the same work in the same organizational subdivisions as the grievants is necessary, under section 7114(b)(4) of the Statute, for the Union to process grievances challenging the grievants' performance appraisals.

The General Counsel contends that disclosure of the information is consistent with the Privacy Act because the early resolution of potential grievances and the proper administration of agency performance appraisal systems are the type of public interests which disclosure of information is intended to further. In particular, the General Counsel argues that the disclosure of home addresses in Department of Defense "involves interests which are fundamentally different from the interests at stake in this case[]" because "[u]nlike home addresses, performance appraisals can 'shed light on an agency's performance of its statutory duties' and reveal to the public 'what their government is up to,' because they show how well (or poorly) the agency's employees are doing their jobs." General Counsel's Supplemental Brief addressing Department of Defense at 3.

B. Respondent

The Respondent contends that disclosure of the requested information is prohibited by the Privacy Act because it would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA. The Respondent notes that Exemption 6 requires a balancing of the harm to the individual whose privacy is breached against the public interest served by disclosure and argues that disclosure even of favorable information may embarrass an individual or incite jealousy in his or her co-workers, citing Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984) (Ripskis).

The Respondent claims that the relevant public interest supporting disclosure of employees' performance ratings is negligible and would not further the public's right to be informed about what the Government is up to. The Respondent also claims that, because the organizational subdivisions involved in this case are small, even the disclosure of sanitized performance ratings would result in the identification of the employees who are the subjects of those ratings and would compromise their privacy. The Respondent contends that balancing the privacy interests of the employees in their performance ratings against the public interest served by disclosure of that information demonstrates that disclosure of the performance ratings would constitute a clearly unwarranted invasion of privacy. The Respondent also argues that unsanitized performance ratings are not "necessary" within the meaning of section 7114(b)(4) of the Statute.

IV. Analysis and Conclusions

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

In this case, the parties do not stipulate that, and the Respondent does not address whether, employee performance ratings, and all data used in the development of those ratings, are contained in a system of records. As we did in FAA, we find that it is proper to take official notice of the fact that the requested performance appraisals are contained in a system of records. FAA, 50 FLRA at 346.

With respect to the requested supporting documentation used in the development of those ratings, the Respondent states, without contravention, that such data "are clearly records covered by the broad terms of the Privacy Act." Respondent's Supplemental Brief addressing Department of Defense, at 2. In this regard, we find it proper to take official notice of the Office of Personnel Management's (OPM's) "Publication of Notices of Systems of Records," 57 Fed. Reg. 35698, 35709 (Aug. 10, 1992), concerning OPM/GOVT-2, "Employee Performance File System Records." Supporting documentation for performance appraisals for Federal employees is contained in this system of records. United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312, 318 (1992). Accordingly, we find that the Union's request for all data used in the development of employee performance ratings applies to information that is maintained in a system of records subject to the Privacy Act.

In this case, the Respondent provided the Union unsanitized performance ratings for the employees who filed grievances. The question before us is whether release of the unsanitized performance ratings, and the supporting documentation, for the remaining unit and non-unit employees is prohibited by the Privacy Act.

The Respondent and the General Counsel have demonstrated, respectively, that disclosure of the unsanitized performance ratings, and the supporting documentation, would implicate employee privacy interests and serve the public interest. We find, in agreement with the Respondent, and for reasons discussed more fully in FAA, that employees have substantial privacy interests in shielding their individual performance ratings from public view. The same privacy interests apply as well to the documentation on which those ratings are based. See Equal Employment Opportunity Commission, Phoenix District, Phoenix, Arizona, 51 FLRA No. 9 (1995), slip op. at 7. The Union's request encompasses unit and non-unit employees' performance ratings, and supporting documentation, whether favorable to the employee or not. In this regard, privacy interests may be heightened with respect to derogatory information in an appraisal. See Gilbey v. Department of the Interior, 1990 WL 174889 (D.D.C. 1990). However, such interests exist even as to favorable information. See FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1059 (D.C. Cir. 1992); Ripskis, 746 F.2d at 3.

We also find, in agreement with the General Counsel, that the release of the requested information would shed light on Government operations and, therefore, would serve the public interest. In particular, disclosure of unsanitized performance ratings and supporting documentation would permit review of the ways in which the Respondent administers its performance appraisal system and the manner in which employees perform their work.

However, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be enhanced by the disclosure of performance ratings, and supporting documentation, that includes names and other identifying information. See Ripskis, 746 F.2d at 3-4 (in concluding that the agency was justified in redacting names and other identifying information from employee evaluation forms, the court stated that the public interest in the forms could "be substantially advanced short of disclosure of the names . . . found on the 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; 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"). The General Counsel has not established that the disclosure of unsanitized performance ratings and supporting documentation enhances the public interest that has been established.

In this connection, disclosure of unsanitized information may well enhance the Union's ability to determine whether a grievance is justified. 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 FOIA Exemption 6. See FAA, 50 FLRA at 348 and cases cited therein.

In the circumstances of this case, we conclude that, on balance, the public interest served by disclosure of unsanitized performance ratings, and supporting documentation, 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 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:
(If blank, the decision does not have footnotes.)
 

1. The parties were provided an 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 General Counsel also filed a brief concerning whether the requested 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).

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 Privacy 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. § 522 (FOIA). Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personal 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,