51:0216(24)CA - - Federal Aviation Administration, Little Rock, AR and National Air Traffic Controllers Association, Local LIT - - 1995 FLRAdec CA - - v51 p216



[ v51 p216 ]
51:0216(24)CA
The decision of the Authority follows:


51 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

LITTLE ROCK, ARKANSAS

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU, AFL-CIO

LOCAL LIT

(Charging Party/Union)

DA-CA-21089

_____

DECISION AND ORDER

September 29, 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.(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 failing and refusing to furnish the Union with unsanitized performance appraisals, requested under section 7114(b)(4) of the Statute.

For the reasons stated below, we find that disclosure of the information is prohibited by the Privacy Act, 5 U.S.C. § 552a.(2) Accordingly, the Respondent was not obligated to furnish the information and its refusal to do so did not violate the Statute.

II. Stipulation

The parties stipulated that, in April 1992, the Union requested that the Respondent provide it with unsanitized copies of the yearly performance appraisals for bargaining unit employees. The Respondent provided sanitized copies of the appraisals, omitting employees' names, supervisors, social security numbers, and other identifying information. The Union informed the Respondent that the sanitized performance appraisals were not sufficient because the employees' names were needed in order to demonstrate bias in the ratings.(3) The Respondent thereafter denied the Union's request.

The parties also stipulated that the requested information 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.

According to the stipulation, the Union maintains that it requested the information for a variety of representational purposes. Among other things, the Union stated that it wanted to ensure that "operational errors," "flight assists," awards and letters of recognition, collateral duties, and on-the-job training were reflected equitably on all appraisals and that Union members had not been treated disparately based on the exercise of their statutory rights.(4) The Union maintained that it had a particularized need for the information in an unsanitized form to facilitate its ability to make valid comparisons among employees and to contact a specific unit employee regarding his or her performance. The Union stated that its informational need could not be satisfied with the identifying information deleted. Stip., para. 15.

According to the stipulation, the Respondent maintains that release of the unsanitized information would violate the Privacy Act and, further, that the Union failed to demonstrate that the information was relevant and necessary so as to permit disclosure of otherwise protected information. Stip., para. 16

III. Positions of the Parties

A. General Counsel

The General Counsel argues that the requested information is not prohibited from disclosure by the Privacy Act. The General Counsel distinguishes this case from FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992) (Commerce), on the basis that the requested information here would permit the Union to determine whether the performance appraisal system was applied fairly, and to assist employees who had allegedly been treated in a discriminatory manner by their supervisors. Without such information, the General Counsel claims that it would be difficult to investigate any alleged wrongdoing.

The General Counsel also asserts that the public interest in ensuring that the Government's operations are opened to public scrutiny outweighs the employees' privacy interests in their unsanitized performance appraisals. The General Counsel claims that disclosure would serve the public interest by permitting the Union to determine if the Respondent is correctly applying the performance appraisal system and enabling the Union to perform its obligations under the Statute to monitor and administer the parties' collective bargaining agreement. In its supplemental brief, the General Counsel argued that disclosure "would further the public interest in promoting the fair and equitable treatment of Federal employees, in ensuring the absence of illegal discrimination, and in reviewing the application of merit principles." Supplemental Brief at 3.

Alternatively, the General Counsel contends that the information should be released in accordance with the routine use provision of the Privacy Act. According to the General Counsel, the purpose for which the information was sought is consistent with the routine use notice published by the Office of Personnel Management (OPM) and OPM's guidance concerning that notice contained in Federal Personnel Manual (FPM) Letter 711-164. The General Counsel further argues that the Union has demonstrated that it has a particularized need for the unsanitized information because the Union cannot determine whether there has been disparate treatment of Union members and unit employees based on protected activity unless the information is disclosed in a form that identifies specific individuals.

B. Respondent

The Respondent contends that the requested information is prohibited from disclosure by the Privacy Act and that the Union has failed to demonstrate that the information is necessary within the meaning of section 7114(b)(4) of the Statute. According to the Respondent, the Union has failed to articulate a particularized need for unsanitized copies of the performance appraisals, and the Union's reasons for requesting that information are addressed sufficiently by the sanitized copies of the performance appraisals that the Respondent has already provided.

IV. Analysis and Conclusions

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

A. Disclosure of the Information Would Constitute a Clearly Unwarranted Invasion of Personal Privacy Under FOIA Exemption 6

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 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 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 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 their 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 Respondent provided the Union with sanitized copies of bargaining unit employees' performance appraisals. Thus, the narrow question before us is whether disclosure of the names of bargaining unit employees and other identifying information is consistent with the Privacy Act. Like the situation presented in U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 392 (1995) (FAA, Jacksonville), the Union's stated purpose for requesting employees' names and other identifiers is to match that information with the appraisals that were already provided. As such, disclosure of the requested information would essentially result in disclosure of unsanitized performance appraisals.

We find, in agreement with the Respondent, and for the reasons more fully set forth in FAA, that employees have substantial privacy interests in not having their performance appraisals disclosed.(5) See also U.S. Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut, 51 FLRA No. 16, slip op. at 6 (1995); Social Security Administration, San Francisco Bay Area, 51 FLRA 58 (1995). The Authority has recognized in these, and other cases, that employee privacy interests extend to favorable, as well as unfavorable performance appraisals and ratings. See FAA, 50 FLRA at 347; U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995) (Office of Justice Programs); and FAA, Jacksonville, 50 FLRA at 393. See also Commerce, 962 F.2d at 1059. In addition, the Authority has recognized that disclosure of such information could subject employees to embarrassment and jealousy among co-workers, which could result in discord at the workplace. For example, FAA, 50 FLRA at 347; Office of Justice Programs, 50 FLRA at 479-80.

As to the public interest, we find that disclosure of unsanitized performance appraisals would shed light on Government operations and, therefore, would serve a public interest cognizable under FOIA Exemption 6. Specifically, disclosure of performance appraisals, whether name-identified or not, would permit the public to review the manner in which the Respondent administers its performance appraisal system and to monitor the quality of work products generated by employees in fulfilling the Respondent's statutory mission.

However, our review of the record leads us to conclude that this public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be any better served by the disclosure of appraisals that include names and other identifiers. That is, although there is a public interest in the performance appraisals, such interest has not been identified in the names connected to those appraisals. See, for example, United States Air Force, Headquarters, 442nd Fighter Wing (AFRES), Richards-Gebaur Air Force Base, Missouri, 50 FLRA 455, 460-61 (1995), and cases cited there.

In this connection, disclosure of unsanitized information may well enhance the Union's ability to use the information to make determinations regarding, for example, potential grievances or the merits of grievances already filed. However, it is clear that these interests are specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6.(6) 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[.]"). Moreover, although the public has an interest in determining "if the Respondent is correctly applying the performance appraisal system[,]" the General Counsel has not shown how disclosure of unsanitized performance appraisals would enhance a member of the public's (as opposed to the Union's) ability to determine whether such programs are administered equitably. Union's Supplemental Brief at 8. Cf. Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (court found that the possibility that requested information "would facilitate investigation of government efforts to enforce" certain laws constituted a "limited public interest[,]" which was outweighed by individuals' privacy interests in the records).

We conclude, on balance, that the public interest served by disclosure of the requested information is outweighed by the substantial invasion of employees' privacy that would result. Accordingly, we find that disclosure of the information would result in a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6.

B. Disclosure of the Information Is Not Authorized Under the Routine Use Exception to the Privacy Act

The information requested in this case is contained in the OPM/GOVT-2 system of records. OPM's routine use statement governing that system of records, identified as routine use "e," provides that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation." 57 Fed. Reg. 35710 (1992). Accordingly, to determine whether the routine use exception applies to the requested information we must decide whether the requested information is "relevant and necessary," within the meaning of routine use "e."

OPM issued "guidance to agencies" for interpreting these terms in FPM Letter 711-164, which was published on September 17, 1992. When the FPM was abolished on December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. Office of Personnel Management, FPM Sunset Document at 79. For the following reasons, we conclude that even though the Letter is no longer in effect, the guidance it contained should be applied in this case.

The Authority has already adopted and applied the interpretation of routine use contained in FPM Letter 711-164. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 243 (1992) (NTEU and Treasury). In doing so, the Authority stated that it would no longer follow its "previous decisions applying a different interpretation . . . ." Id. In those prior decisions, the Authority had declined to defer to or apply OPM's informal and then unpublished interpretation of routine use. See, e.g., U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 539 (1990), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991) (Portsmouth). However, several United States Courts of Appeals disagreed with the Authority's refusal to defer to OPM's interpretation of routine use. See, e.g., FLRA v. United States Department of Veterans Affairs, 958 F.2d 503, 515 (2d Cir. 1992) (Veterans Affairs); Portsmouth, 941 F.2d at 59; FLRA v. U.S. Department of Treasury, Financial Management Service, 884 F.2d 1446, 1454-56 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990) (Treasury, Financial Management). But see FLRA v. U.S. Department of Navy, 966 F.2d 747, 762 (3d Cir. 1992).

Because the FPM Letter adopted and applied by the Authority in NTEU and Treasury was not retained after December 31, 1994, a threshold question is presented in the case now before us: Should the Letter's guidance be applied in interpreting the routine use exception in cases arising from conduct prior to its expiration? In addressing this question, we are aided by a recent decision in which the U.S. Supreme Court extensively discussed the circumstances when a change in the law should be applied in a case arising from conduct antedating such change. Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 1501-05 (1994) (Landgraf). The Landgraf Court, addressing statutory changes in particular, stated that where the application of a new law would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed[,]" the traditional presumption against retroactivity operates to deny such retroactive effect in the absence of clear congressional intent to the contrary. Id. at 1505.

Although there are obvious distinctions between the expiration of an interpretive FPM Letter and the enactment of a new law,(7) the situations are sufficiently analogous to warrant applying the Court's reasoning in this case as well.(8) Doing so, we find that not applying the FPM Letter in this case would impair rights the Respondent possessed when it denied the Union's request for information. There is no indication in the FPM Sunset Document that OPM intended such retroactive result by its action abolishing the Letter.

The case now before the Authority presents yet another issue to consider, however, because it arose prior to the date the FPM Letter was issued, rather than during the period when it was in effect. A similar situation was presented in NTEU and Treasury, where the Authority applied the FPM Letter to a case, like this, that arose prior to the Letter's promulgation. In addition, we note that the Letter expressly stated OPM's "longstanding policy guidance and interpretations" concerning systems of records which OPM administers, and that courts of appeals have agreed that this had been OPM's interpretation prior to the Letter's promulgation. See Veterans Affairs, 958 F.2d at 515; Treasury, Financial Management, 884 F.2d 1454. Moreover, in our view it would likely create considerable and unnecessary confusion to treat the period of time before issuance of the FPM Letter differently from the period of time after it issued, in determining whether to retroactively apply this change in law.

Accordingly, we do not give any retroactive effect to the expiration of FPM Letter 711-164,(9) and will apply its guidance in all cases that arose prior to or during its effective dates.(10)

The FPM Letter contains two requirements that a union must satisfy in order to establish that disclosure of requested information is consistent with routine use "e": (1) the information must be "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information must be "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs. In clarifying this second requirement, the FPM Letter explains that it is to be determined on a case-by-case basis; the union "must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted."

Addressing, first, the standard of "relevance," and looking at the ordinary meaning of the terms "traceable," "logical" and "significant,"(11) we have examined the record to assess whether the Union has established that the nature of the information requested can reasonably be attributed to and is likely to influence or affect the purpose for which the information was sought. We find that the names of bargaining unit employees and other identifiers, insofar as they would effectively provide the Union with unsanitized performance appraisals, bear a traceable, logical, and significant connection to the purpose for which that information was sought. For example, furnishing employees' names clearly would affect the Union's stated purpose of uncovering possible disparate treatment of Union members. It would also enable the Union to make comparisons among employees in order to ascertain whether the appraisals accurately and adequately reflected the employees' duties, training, and commendations.

Despite our finding that the requested information is relevant, however, we are not persuaded that the record before us supports a finding that the information is necessary. Although the General Counsel maintains that the Union needs the requested information to determine whether there was disparate treatment of unit employees and Union members, the Union has not established, and the stipulated record does not otherwise reflect, that this need cannot be satisfied through less intrusive means than by using name-identified appraisals. The only example of less intrusive means contained in the FPM Letter is the release of records with personally-identifying information deleted. In this case, it is clear that this less intrusive means exists -- indeed, the Respondent has already furnished appraisals with names and other personal identifiers deleted; according to the Union this information does not satisfy its needs. However, the sanitization of the appraisals already attempted is not the only means available to accomplish disclosure that is less intrusive to employees' privacy. For example, there is no indication that the parties have considered the use of a coding scheme that would accompany the sanitized appraisals and indicate unit status and Union membership in order to uncover possible disparate treatment. As to the Union's stated need of contacting employees directly, there is nothing in the record to indicate that the Union is unable to contact the total bargaining unit complement without access to the requested information.(12)

Based on the foregoing, we conclude that the Union has not established that the requested information is necessary within the meaning of FPM Letter 711-164.

C. Summary

We find that disclosure of the names of bargaining unit employees attached to their performance appraisals, as well as other identifying information, would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and that release of such information is not authorized as a routine use under section 552a(b)(3) of the Privacy Act. Therefore, such disclosure is prohibited by law within the meaning of section 7114(b)(4) of the Statute and the Respondent's refusal to provide the information did not violate section 7116(a)(1), (5) and (8) of 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 briefs addressing the Supreme Court's decision in U.S. Department of Defense, v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994) (Department of Defense). The General Counsel filed a supplemental statement. The parties also filed briefs concerning whether the 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).

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 (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." In addition, Exception (b)(3) of the Privacy Act permits disclosure of information "for a routine use as defined in subsection (a)(7) of this section . . . ." 5 U.S.C. § 552a(b)(3). Subsection (a)(7), in turn, defines routine use as "the use of such record for a purpose which is compatible with the purpose for which it was collected[.]"

3. The Union also advised the Respondent that there was no objection to deletion of employees' social security numbers. Based on the General Counsel's brief, it appears that, and we find, the Union is seeking the information with employee names and other "identifying data," but not social security numbers. General Counsel's Brief at 5.

4. The record does not indicate the meaning, or import, of "operational errors" or "flight assists."

5. 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. For the reasons set forth in FAA, we no longer consider interests embodied in the Statute as a public interest cognizable in our Exemption 6 analysis.

7. Cf. U.S. v. Walter Dunlap & Sons, Inc., 800 F.2d 1232, 1238 (3d Cir. 1986) (Interpretive rules do not have the force and effect of law because they are statements of policy issued by an agency asserting its construction of a regulation.).

8. In general, regulations and statutes have not been treated differently for retroactivity purposes. See Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988) (agency lacked authority to promulgate a rule having retroactive effect); Association of Accredited Cosmetology Schools. v. Alexander, 979 F.2d 859, 864 (D.C. Cir. 1992) (retroactivity of statute and related regulations discussed without distinction). The presumption against retroactivity has been applied to deny retroactive effect to the expiration of a regulation. Bankruptcy Estate of United Shipping Co. v. General Mills, Inc., 34 F.3d 1383, 1393 (8th Cir. 1994) (regulation, repealed at the time of adjudication, but in effect during conduct at issue, was correctly applied by the administrative agency to the conduct under consideration).

9. Although the Authority has not previously addressed this precise question, it has previously applied the abolition of the FPM retroactively in other circumstances. See National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, 49 FLRA 1126, 1137 (1994) (National Treasury Employees Union) and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802, 811 (1994) (Mare Island). In view of the Supreme Court's decision in Landgraf, and for the reasons discussed above, we will no longer apply the law in effect at the time we issue our decision, as we did in Mare Island and National Treasury Employees Union, if the application of a new or expired law or regulation would have a "retroactive effect." Landgraf, 114 S. Ct. at 1505.

10. The consequence, if any, of the abolishment of the FPM Letter in cases arising after December 31, 1994, is not at issue in this case.

11. According to Webster's Third New International Dictionary (unabridged) (1986), traceable is defined as "suitable or of a kind to be attributed: Due, Ascribable"; logical means "that [which] is in accordance with inferences reasonably drawn from preceding or surrounding or predictable facts or events or circumstances"; and significant refers to "having or likely to have influence or effect." The Authority occasionally refers to dictionary definitions of terms to supply meaning where none has otherwise been provided. For example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 958 n.2 (1994). See also U.S. Department of the Army, Red River Depot, Texarkana, Texas v. FLRA, 977 F.2d 1490, 1492 (D.C. Cir. 1992) (court found that Authority's adoption of dictionary definition of statutory term was permissible).

12. The Union represents 27 employees at the Little Rock, Arkansas facility as the agent for the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, which represents a nationwide consolidated bargai