51:0324(31)CA - - Federal Aviation Administration & National Air Traffic Controllers Associartion - - 1995 FLRAdec CA - - v51 p324



[ v51 p324 ]
51:0324(31)CA
The decision of the Authority follows:


51 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

FORT WORTH, TEXAS

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/AFL-CIO

LONGVIEW LOCAL

(Charging Party/Union)

DA-CA-21171

_____

DECISION AND ORDER

October 5, 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 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 refusing to provide the Union with unsanitized copies of performance appraisals and supporting documentation requested under section 7114(b)(4) of the Statute. For the following reasons, we conclude 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 National Air Traffic Controllers Association, MEBA/AFL-CIO, is the exclusive representative of a nationwide bargaining unit of the Respondent's employees, including employees at the Respondent's Longview, Texas facility, who are represented by the Charging Party's Longview Local. The Respondent and the Union are parties to a collective bargaining agreement that has been in effect at all times material to this case.

On April 22, 1992, the Union requested that the Respondent furnish it with unsanitized copies of the yearly performance appraisals for all bargaining unit employees. The Union stated that the appraisals were necessary in order to investigate a possible grievance by the Union. In an exchange of letters between April and July, the Respondent requested clarification of the scope of the Union's request, and the Union specified that its request was for the performance appraisals of the Respondent's GS-2152 air traffic control specialists for the 1-year appraisal period ending March 31, 1992. The Respondent subsequently requested further clarification of the Union's need for the appraisals, and the Union explained its need and also requested "all notes and other documentation used to support the performance appraisals in question." Stipulation, Exhibit 6. The Union stated that it needed the appraisals in order to fully evaluate, among other things, whether management had applied performance standards in an equitable, non-disparate manner, and whether appraisals equitably reflected work performed. Ultimately, the Respondent refused to provide the information requested by the Union, stating that disclosure of the information would constitute an unwarranted invasion of employees' privacy.

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.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that the requested performance appraisals and supporting documentation are necessary "in unsanitized form to determine union membership and to compare whether the supervisors involved have given equitable appraisals to all employees." General Counsel's Brief on Stipulation at 7. The General Counsel asserts that the public interest in ensuring that the Union carries out its statutory duty to responsibly represent employees outweighs the employees' interest in preventing disclosure. In this regard, the General Counsel argues that, unlike the situation in Department of Defense, disclosure in this case serves the public interest as discussed in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee), because disclosure would "shed 'light on [the Respondent's] performance of its statutory duties' and allow citizens to know 'what their government is up to.'" General Counsel's Brief on Department of Defense at 3.

The General Counsel further contends that the requested information should have been released under exception (b)(3) of the Privacy Act, consistent with the routine use notice published by the Office of Personnel Management (OPM) at 57 Fed. Reg. 35712 (Aug. 10, 1992). The General Counsel notes that on September 17, 1992, OPM published Federal Personnel Manual (FPM) Letter 711-164 for the guidance of agencies on the release of information under the routine use provisions of the Privacy Act, and contends that the Union in this case fulfilled the requirements of FPM Letter 711-164.

B. Respondent

The Respondent, relying on the court's decision in FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992), states that it "adheres to a policy that precludes the release of unsanitized performance appraisals," as requested by the Union in this case. Respondent's Brief on Stipulation. The Respondent asserts that because the Union did not demonstrate any "particularized need" for the requested information, disclosure of the information in unsanitized form would violate the privacy interests of the employees and be incompatible with the Privacy Act. Id.

IV. Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6. We also find that disclosure of the information is not authorized under exception (b)(3) of the Privacy Act as a routine use. Therefore, disclosure of the requested information is prohibited by the Privacy Act. Accordingly, without addressing the parties' arguments concerning whether the information is necessary under section 7114(b)(4) of the Statute, we dismiss the complaint.

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 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 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 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 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 concerning 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 and in expediting grievances, 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 Union's request was for unsanitized performance appraisals, and the documentation used to support the appraisals, of bargaining unit employees. The parties do not stipulate, and the Respondent does not address, whether the employee performance appraisals and/or supporting documentation 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 performance appraisals are contained in a system of records. FAA, 50 FLRA at 346. We also find it proper to take official notice of 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 of Records." Supporting documentation for performance appraisals for Federal employees is contained in this system of records. See U.S. Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut, 51 FLRA No. 16 (1995). Accordingly, we find that the Union's request for "all notes and other documentation used to support the performance appraisals" applies to information that is maintained in a system of records subject to the Privacy Act.

The Respondent and the General Counsel have demonstrated, respectively, that disclosure of the performance appraisals, 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 appraisals 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 75, 81 (1995). The Union's request was for unit employees' performance appraisals, and the supporting documentation, whether favorable to the employee or not. In this regard, privacy interests may be heightened with respect to derogatory information in a performance appraisal and supporting notes and other documentation. 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, 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 performance appraisals 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 that would be served by disclosure of the requested information also could be substantially, if not equally, served by disclosure of sanitized information which does not identify individual employees by name or other identifying information. See United States Air Force Headquarters, 442nd Fighter Wing (AFRES), Richards-Gebaur Air Force Base, Missouri, 50 FLRA 455, 460-61 (1995) and cases cited therein. As in FAA, the General Counsel has not established that the disclosure of unsanitized performance appraisals, and supporting documentation, enhances the public interest that has been articulated.

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.(3) 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 appraisals, and the 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, and, thus, is not required by 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 (August 10, 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. For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24 (1995), we apply the FPM Letter's guidance in deciding this case.

The FPM Letter contains two requirements that a union must satisfy in order to establish that 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," we have looked at the ordinary meaning of the terms "traceable," "logical," and "significant,"(4) 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 nature of the information--a supervisor's appraisals of employees by name, and the supporting documentation, which would attribute judgments to the supervisor as to each employee's duties and accomplishments, and from which the fairness and equity of the appraisals could be inferred--bears a traceable, logical, and significant connection to the Union's purpose, which is to compare the same supervisor's appraisals to the appraisal of the grievant in order to show disparate treatment. Therefore, we find that the Union established that the information requested is relevant.

However, we find that the Union did not satisfy the standard of "necessary" under the FPM Letter. Specifically, when making its request, the Union did not demonstrate why it needed the performance appraisals and supporting documentation in a form that would identify employees by name or other personally-identifying information. The Union asserted reasons that encompassed an analysis of the entire appraisal system, but has not established, and the stipulated record does not otherwise reflect, that the Union's need cannot be satisfied through less intrusive means than by obtaining name-identified appraisals. The Union identified by classification the bargaining unit employees whose appraisals it sought. However, the Union did not show why these similarly situated employees' appraisals, with names and personal identifiers deleted, could not serve the Union's need in this case. Appraisals could be coded in a manner allowing identification of specific individuals, should the Union later demonstrate that a request for additional information met the applicable standards for disclosure. We conclude that the Union has not established that the information in the unsanitized form sought is necessary within the meaning of FPM Letter 711-164.

In sum, because disclosure of the requested information is not required by Exemption 6 of the FOIA, and is not authorized under exception (b)(3) of the Privacy Act, the disclosure 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.

V. Order

The complaint is dismissed.




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

1. The parties were provided an opportunity to submit 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 General Counsel filed a brief on this issue. The Respondent and the General Counsel filed briefs 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 Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption 6 of the FOIA provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" If such an invasion of privacy would result, then disclosure is not required by the FOIA. In addition, 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. For the reasons set forth in FAA, we no longer consider interests embodied in the Statute as a public