51:0248(26)CA - - EEOC and National Council of EEOC Locals No. 216, AFGE and AFGE Local 3614 - - 1995 FLRAdec CA - - v51 p248

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[ v51 p248 ]
51:0248(26)CA
The decision of the Authority follows:


51 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Respondent)

and

NATIONAL COUNCIL OF EEOC LOCALS NO. 216

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3614

(Charging Party/Union)

2-CA-10106

2-CA-10107

3-CA-10144-1

3-CA-10144-2

3-CA-10144-3

3-CA-10144-4

_____

DECISION AND ORDER

September 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel did not file an opposition to the Respondent's exceptions.(1)

The consolidated complaints allege 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 with performance ratings, progress reviews and other specified data for certain bargaining unit employees. The Judge granted the General Counsel's motion for summary judgment, which was made during the hearing, finding that there was no genuine issue of material fact in dispute. The Judge concluded that the Respondent violated the Statute, as alleged.

Upon consideration of the Judge's decision and the entire record in this case, we conclude that disclosure of two of the categories of requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a,(2) and that, therefore, the Respondent did not violate the Statute by failing to provide that information. As to the remaining four categories of requested information, we find that the Union has not established that such information is necessary within the meaning of section 7114(b)(4) of the Statute. Accordingly, we dismiss the complaint.

II. Judge's Decision

The facts are set forth fully in the attached Judge's decision and briefly summarized here. The Union submitted separate requests for the following six categories of information concerning bargaining unit employees classified as "Investigator" in six separate geographic locations:(3) (1) unsanitized Fiscal Year 1990 (FY 90) performance ratings and summaries, including all documents (memoranda, letters, notes, affidavits, statements) relied on in issuing performance ratings; (2) for each month in FY 90, "Case Management and Assignment System Sheets" and any other document used in processing cases; (3) for each month in FY 90, the total number of charges assigned to each employee, identified by charge number, statute, basis and issues, and type of respondent; (4) for each month in FY 90, the total number of charges closed by each employee, identified by charge number, type of closure, type of respondent, basis and issue(s), statute, date of receipt in office, date of assignment to employee, date of closure; (5) progress reviews for each employee during FY 90; and (6) "[w]ith specificity," every criteria used to evaluate each employee. Joint Exh. 5 at 2. In each request, the Union stated that it needed the information in order to prepare for a potential grievance and/or third party proceedings. The Respondent provided some of the information at one of the geographic locations after employees in that location filed grievances.

The Judge concluded that the Respondent violated the Statute by refusing to provide information to which the Union was entitled under section 7114(b)(4) of the Statute. The Judge found that "there is no dispute" that the information requested is maintained and readily available and that the information "by its very nature" did not constitute advice, guidance, counsel, or training for management officials within the meaning of section 7114(b)(4)(C) of the Statute. Judge's Decision at 7. In addition, the Judge found that the information was necessary for the Union to perform its representational responsibilities under the Statute because the Union had challenged the performance ratings of investigators and the requested information was "clearly relevant" to the Union's evaluation of the challenged ratings. Id.

Finally, the Judge observed that an agency is obligated to timely respond to a request for data pursuant to section 7114(b)(4) of the Statute, even if the information sought does not exist. The Judge found that the Respondent had failed to advise the Union that some of the information was not maintained at all locations and that certain data might be available quarterly or annually, rather than monthly. However, the Judge did not find an independent violation of the Statute based on such conduct.(4)

III. Positions of the Parties

A. Respondent

The Respondent asserts that the General Counsel offered no testimony regarding, and the Judge failed to address, the applicability of the Privacy Act to the requested information, despite the Respondent's assertion that the information was prohibited from disclosure by law. Citing Commerce in support, the Respondent claims that the public interest in disclosure is outweighed by employees' substantial privacy interests and expectations that their appraisals will remain confidential. The Respondent contends that the public interest in disclosure is minimal because the information sought will not substantially shed light on the nature of the Government's operations.

The Respondent also argues that the necessity for the requested information was not apparent from the face of the Union's requests or from the surrounding circumstances and that, consistent with various court decisions, the Union failed to establish a particularized need for the information. The Respondent contends that the following countervailing interests militate against disclosure: the absence of a pending case; the Respondent's interest in non-disclosure; the interests of the Respondent's employees in non-disclosure; and the voluminous nature of the request, coupled with the burden it creates for the Respondent in responding.

The Respondent further asserts that the Judge erred in concluding that there were no material facts in dispute, despite evidence to the contrary, and in granting the General Counsel's motion for summary judgment.

B. General Counsel

The General Counsel contends that the Supreme Court's decision in Department of Defense has no applicability to the instant proceeding because the nature of the information sought concerns a significant public interest. The General Counsel asserts that the privacy interest of employees in their performance appraisals, if one exists, is relatively minor when compared with the public interest in ascertaining whether public employees are being properly rated in accordance with merit principles. The General Counsel claims that the public's interest in knowing what its government is doing is of paramount importance and that performance appraisals could expose "unfair, discriminatory and erroneous appraisals which concern public employees performing public duties paid by public funds on the public's time." General Counsel's Supplemental Brief at 3.

IV. Analysis and Conclusions

A. Judge Incorrectly Granted Summary Judgment

Although the Authority is not bound by the Federal Rules of Civil Procedure, we have stated that motions for summary judgment that are filed with administrative law judges under section 2423.19 of our Regulations "serve the same purpose and have the same requirements as motions for summary judgment filed with United States District Courts pursuant to Rule 56 of the Federal Rules of Civil Procedure." Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky and Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO, 33 FLRA 3, 4-6 (1988), rev'd on other grounds sub nom. Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990). Consistent with courts' interpretations of Rule 56, a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading," but must show by affidavit or otherwise that there is a genuine issue of material fact. Fed. R. Civ. P. 56(e). See also Brown v. Chafee, 612 F.2d 497, 504 (10th Cir. 1979).

In this case, the Respondent presented testimony disputing a number of factual assertions made by the General Counsel. Although the Judge found otherwise, our review of the transcript of the hearing persuades us that there was a genuine dispute over facts that were material to the General Counsel's showing, under section 7114(b)(4), that certain information was normally maintained and was reasonably available. Therefore, the Judge erred in granting the General Counsel's motion for summary judgment. Cf. Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995) (judge did not err in granting general counsel's motion for summary judgment and denying respondent's cross-motion for same because respondent failed to demonstrate that there was a genuine issue of material fact regarding an affidavit on which the judge relied).

B. Disclosure of Performance Ratings and Summaries, Including Documents Relied On in Issuing Ratings and Progress Reviews, Is Prohibited by the Privacy Act (5)

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.

The record in this case provides a sufficient basis to conclude that the Respondent and the General Counsel have demonstrated, respectively, that disclosure of the performance ratings and summaries, including documents relied on in issuing the ratings, and progress reviews would implicate employee privacy interests and serve the public interest.(6) In agreement with the Respondent, and for the reasons more fully set forth in FAA, we find that employees have substantial privacy interests in not having performance evaluation information disclosed. See also U.S. Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut, 51 FLRA No. 16, slip op. at 7 (1995); Equal Employment Opportunity Commission, Phoenix District, Phoenix, Arizona, 51 FLRA 75 (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). 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 agree with the General Counsel that release of the requested information would shed light on Government operations and, therefore, would serve the public interest. Specifically, disclosure of the requested material would permit review of the manner in which the Respondent administers its performance appraisal system. It would also shed light on the ability of employees to perform their duties, which furthers the public interest in knowing how "public servants" are carrying out their Government functions. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978) (a basic purpose of the FOIA is to ensure an informed citizenry needed to "hold the governors accountable to the governed"). See also FAA, 50 FLRA at 348.

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 the name-identified performance ratings, summaries, documents relied on in issuing the ratings, and progress reviews. That is, although there is a public interest in this performance evaluation information, 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 and American Federation of Government Employees, Local 2127, 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.(7) 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, __U.S.__, 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 evaluation information 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 unsanitized performance ratings, including summaries and supporting documentation, and progress reviews is outweighed by the substantial invasion of employees' privacy that would result. Accordingly, we find that disclosure of that 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 information under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute.

C. Disclosure of the Remaining Information Is Not Necessary Within the Meaning of Section 7114(b)(4) (8)

Recently, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS Kansas City), which set forth the analysis for determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union making a request under that section must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that a union's need will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" 50 FLRA at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. As for the agency's responsibilities, we stated that when it denies an information request, the agency must assert and establish any countervailing anti-disclosure interests. The agency will not satisfy its burden by making conclusory or bare assertions.

Where the parties are unable to agree on whether, or to what extent, requested information must be provided, we will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.

Applying the analytic framework of IRS Kansas City, we find that the Union has not satisfied its burden of demonstrating that the information requested in categories 2, 3, 4 and 6 is required for it to adequately represent its members. At the time of its information requests, the Union stated that it needed the information to prepare for a potential grievance and/or third party proceedings. The record demonstrates that at the time of the Union's requests, or shortly thereafter, grievances were filed. The Respondent provided the requested information with respect to the named grievants and, in addition, provided "comparators." Transcript at 43-44, 63. The Respondent asked the Union to clarify why it needed the remaining information but the Union did not offer any clarification. Under these circumstances, we find that it was incumbent on the Union to explain why it needed such information, the uses to which the information would be put, and the connection between those uses and the Union's responsibilities. This it failed to do. The Judge's statement that the information was "clearly relevant" to the Union's evaluation of the challenged ratings, Judge's Decision at 7, does not persuade us that the Union has satisfied its burdens, particularly in view of the fact that a showing of relevance is insufficient to establish a particularized need.

More specifically, with regard to information described in category 2 -- "case management and assignment system sheets" -- the Union advanced no reasons at all to explain why it needed that particular information and how it would assist the Union's representational responsibilities concerning the grievants. The same is true with regard to the information in categories 3 and 4 -- "charges assigned" and "charges closed." Although at the hearing the General Counsel asserted that the complexity of each type of case should be taken into account in appraising employee performance, this reason was not communicated to the Respondent at a time when it reasonably could have assessed the necessity for the information. As to the remaining information sought in category 6 -- "all criteria used to evaluate employees" -- the Union did not even explain what it sought, despite the Respondent's attempts to obtain some further amplification from the Union. It is simply impossible to ascertain the Union's needs, given these facts. In sum, we conclude that the Union has not satisfied its burden of articulating and establishing, with specificity, why it needed the information, the uses to which the information would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. As such, we conclude that the information requested in categories 2, 3, 4 and 6 is not necessary within the meaning of section 7114(b)(4) of the Statute.(9)

V. Order

The consolidated complaints are dismissed.

NOTE: The ALJ decision that is appended to the above Authority decision is not available in electronic format.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Respondent also filed a supplemental submission addressing the applicability of 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), which issued after the Respondent filed its exceptions. The General Counsel filed an opposition arguing that the submission was not timely filed and that the Respondent had failed to show good cause for its consideration. We will consider the submission pursuant to section 2429.26 of the Authority's Regulations. See U.S. Customs Service, 46 FLRA 1080, 1080 n.1 (1992). In addition, the parties were provided an opportunity to submit 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). Both parties filed submissions in response. Additionally, the Respondent filed a brief addressing various court decisions that were issued during the pendency of this case concerning the requirements of section 7114(b)(4) of the Statute. We will also consider this submission under section 2429.26 of our Regulations.

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 (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 the requests did not limit the information sought to bargaining unit employees, the complaints specify that the Union sought information relating to such employees.

4. As the Judge did not find an independent violation of the Statute with regard to this matter, and in the absence of an allegation in the complaint, or an amendment thereto, that a refusal to advise the Union of the unavailability of some of the information constituted a viola