51:0584(52)AR - - Justice, Federal Correctional Facility, El Reno, OK and AFGE Local 171 - - 1995 FLRAdec AR - - v51 p584
[ v51 p584 ]
The decision of the Authority follows:
51 FLRA No. 52
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL CORRECTIONAL FACILITY
EL RENO, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 30, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Donald P. Goodman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.(1)
The Union filed a grievance over the Agency's failure to provide it with two documents pertaining to a bargaining unit employee's appeal of a disciplinary action to the Merit Systems Protection Board (MSPB). The Arbitrator sustained the grievance and directed the Agency to provide the Union with: 1) a copy of the settlement agreement entered into by the employee and the Agency; and 2) portions of the Agency's written response to the employee's MSPB complaint.
For the following reasons, we conclude that the award is contrary to the Privacy Act, 5 U.S.C. § 552a,(2) and, therefore, that the award is deficient under section 7122(a) of the Statute. Accordingly, we set the award aside.
II. Arbitrator's Award
The Arbitrator stated the issue before him as follows:
Did the Agency violate Article 31C of the Master Agreement and 5 USC 7114 in refusing to provide the Union with the documents requested?
Award at 1.(3)
The Arbitrator determined that the Agency "violate[d] Article 31C of the Master Agreement when it refused to provide the Union with the documents requested."(4) Id. at 9. As relevant here, the Arbitrator determined that the Union has a right to know what discipline the Agency imposes on its employees in order to process grievances over disparate disciplinary treatment. The Arbitrator concluded that the Union is not in a position to know if adjustments of employee complaints are in compliance with the agreement unless the Union obtains information pertaining to such adjustments.
Responding to the Agency's argument that the requested settlement agreement and written response are not disclosable under the Privacy Act, the Arbitrator addressed FOIA Exemption 6, but drew no conclusions with respect to its application in this case. However, the Arbitrator did make findings and reached conclusions with respect to disclosure under the routine use exception to the Privacy Act. The Arbitrator cited a routine use notice published by the Office of Personnel Management (OPM) that authorized the disclosure of documents to unions when relevant and necessary to their duties as exclusive representatives of bargaining unit employees. The Arbitrator stated that in cases involving discipline a union has a need to know the names of the affected employees, even if they have not requested union representation, in order to know the procedures and policies management follows and implements when it disciplines its employees. The Arbitrator determined that "[s]ome of the information here requested by the Union meets that 'routine' [use] test." Award at 8.
As his award, the Arbitrator determined that the Union was entitled to a copy of the settlement agreement. The Arbitrator also found that while the Union was "not entitled to blanket unsanitized information[,]" or "to all the specifics of the charges against [the employee,]" the Union was entitled to know that the employee was "charged with incidents with an inmate." Id. Although the Arbitrator did not explicitly reference disclosure of the Agency's written response, the parties treat the award as encompassing portions of that document, in addition to the settlement agreement.
A. Agency's Contentions
The Agency argues that the award is contrary to law because disclosure of the settlement agreement and written response would constitute a clearly unwarranted invasion of personal privacy under FOIA Exemption 6 and is not consistent with the routine use exception to the Privacy Act. Specifically, with respect to the routine use exception, the Agency asserts that the Union's request does not satisfy the "particularized need" requirement of Federal Personnel Manual (FPM) Letter 711-164, Exceptions at 14, because the Union was not seeking the settlement agreement and the written response to assist the employee in his MSPB appeal or any other employee who had filed, or was contemplating filing, a grievance with respect to an adverse action. The Agency claims that the Union has no need for the identities of those employees against whom adverse actions are taken in order to fulfill the objective of ensuring that management has not imposed disparate penalties or negotiated disparate settlement agreements.
As to FOIA Exemption 6, the Agency asserts that the employee's privacy interests are reflected in the fact that he wanted his appeal "concealed" and "moved to have the record sealed precisely because he objected to release of such documents to the Union." Id. at 17. The Agency contends that the employee's privacy interests may be protected, and the Union's stated purposes for the information served, by releasing, in a sanitized form, information concerning the imposition of discipline over a "sufficiently broad time frame[.]" Id. at 18. The Agency also maintains that the public's interest in disclosure is not sufficient to outweigh the employee's privacy interests and that the Arbitrator erred as a matter of law by giving weight to the Union's need for the information as being in the public interest. The Agency asserts that, under Department of Defense, the Arbitrator applied the wrong balancing test in this case.
The Agency further argues that the award constitutes a collateral attack on MSPB's jurisdiction and, thereby, violates 5 U.S.C. §§ 1204(a)(1) and (h); 5 U.S.C. §§ 7701 and 7702; and various provisions of the Statute. The Agency claims that MSPB's jurisdiction includes the exclusive authority to enforce settlement agreements. The Agency also disputes the Arbitrator's findings under both section 7114 of the Statute and the parties' agreement on numerous grounds. Finally, the Agency contends that the Arbitrator exceeded the scope of the issue submitted to him for resolution. According to the Agency, the Arbitrator "restructure[d] the issue before him[,]" which related to the disclosure of unsanitized material, by ordering disclosure of only portions of the Agency's written response to the employee's MSPB complaint. Exceptions at 25.
B. Union's Position
The Union did not file an opposition to the exceptions. As set forth in the award, the Union claimed that the two documents it requested are necessary to ensure that the Agency "observes its statutory, regulatory and collective bargaining agreement obligations. Otherwise, the Agency would have a free rein to cut deals with employees and maintain those deals in secrecy." Award at 2-3. In its supplemental submission, the Union argues that Department of Defense is not applicable to this case.
IV. Analysis and Conclusions
The Agency challenges the award's consistency with law; accordingly, we review the questions raised by the exceptions de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). Based on such review, we find that disclosure of the settlement agreement and the Agency's written response to the employee's MSPB complaint is inconsistent with the Privacy Act and, therefore, that the award ordering disclosure is contrary to law. As a result, we set aside the award and find it unnecessary to address the remaining exceptions that are premised on other grounds.
Initially, we note the Agency's statement, in its exceptions, that the settlement agreement and the written response are contained in a system of records identified as OPM/GOVT-3. As the Union does not dispute this statement, we find that the documents are contained in OPM/GOVT-3.
A. Disclosure Would Result In a Clearly Unwarranted Invasion of Privacy Under FOIA Exemption 6 (5)
The Authority recently found that employees have significant privacy interests in information pertaining to disciplinary actions, which include the action involved in this case, because the release of such information can be embarrassing and stigmatizing to the employee involved. U.S. Department of Labor, Washington, D.C., 51 FLRA No. 41, slip op. at 9-10 (1995) (Department of Labor). We find that the employee in this case similarly has significant privacy interests. Furthermore, by entering into an agreement with the Agency to seal the settlement agreement, the employee has evidenced a desire to maintain the secrecy of the agreement and guard against disclosure of its contents. Cf. U.S. Department of Veterans Affairs Regional Office, St. Petersburg, Florida, 51 FLRA No. 47 (1995), slip op. at 7. The fact that the employee's identity is known to the Union does not lessen his privacy interests. See Department of Defense, 114 S. Ct. at 1014.
As to the public interest that would be served by disclosure, we find that release of the settlement agreement and the written response would shed light on Government operations and, therefore, would serve a public interest that is cognizable under Exemption 6. Specifically, disclosure of the two documents would serve the public interest of monitoring the manner in which the Government disciplines Federal employees and assesses the job conduct of public servants. See 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").
However, there is no indication that disclosure of the documents in a name-identified form would better serve the foregoing public interest. See Department of Labor, 51 FLRA No. 41, slip op. at 10. See also Norwood v. Federal Aviation Administration, 993 F.2d 570 (6th Cir. 1993) (disclosure of documents pertaining to settlement offers of reinstatement to fired air traffic controllers, redacted of identifiers, found to serve the public interest). Moreover, because the requested documents concerned only one name-identified employee, it is not possible to redact the documents to protect the identity of the employee whose privacy is at stake. See Federal Aviation Administration, New York TRACON, Westbury, New York, 51 FLRA 115, 122 (1995). See also Schonberger v. National Transportation Safety Board, 508 F. Supp. 941, 945 (D.D.C. 1981) (court found "no reasonable way to . . . protect . . . privacy because the request sought one document, identified by name and date, applying solely to one individual"). Although disclosure of the unsanitized settlement agreement and the written response might assist the Union in discharging its representational responsibilities, this interest is specific to the Union and, as such, may not be considered in balancing interests under FOIA Exemption 6. See FAA, 50 FLRA at 349. See also Department of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]"); 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.").
Based on the foregoing, we conclude that, on balance, the public interest that would be served by disclosing the settlement agreement and the Agency's written response to the employee's MSPB complaint is outweighed by the invasion of 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 not authorized by the FOIA exception to the Privacy Act.
B. Disclosure of the Requested Information Is Not Authorized Under the Routine Use Exception to the Privacy Act
The routine use statement published by OPM in connection with OPM/GOVT-3 provides, under routine use "a," 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 concerning personnel policies, practices, and matters affecting work conditions." 57 Fed. Reg. 35712 (1992). Accordingly, to determine whether the routine use exception applies to the settlement agreement and written response, we must decide whether such information is "relevant and necessary," within the meaning of routine use "a."
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 216, 223-26 (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 the requested information is consistent with routine use "a": (1) the information is "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 is "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."
In this case, we find that the Union has failed to demonstrate that the requested information is "relevant" within the meaning of FPM Letter 711-164. Addressing that standard and looking at the ordinary meaning of the terms "traceable," "logical," and "significant,"(6) it is necessary for us to examine the relationship between the requested information--the settlement agreement and the Agency's written response to the employee's MSPB complaint--and the express purposes for which that information was sought: to "ensure that the Agency observes its statutory, regulatory and collective bargaining agreement obligations." Award at 2. In this regard, the Union has not explained, and it is not apparent to us, how the information would, if provided, bear a traceable, logical, and significant relationship to these purposes. The Union has not shown, for example, how knowledge of the terms of the settlement agreement and the Agency's written response would permit the Union to ensure that the Agency complies with its statutory and regulatory obligations and its obligations under the parties' negotiated agreement. First, the Union points to no statutory and regulatory obligations with which the Agency must comply. Second, the only contractual provision cited is Article 31C, which permits employees to adjust grievances without the Union "as long as the adjustment is not inconsistent with the terms of this Agreement . . . ." Exceptions, Exhibit 5 at 2. The record does not indicate, and the Union does not explain, what the terms of the agreement are and how the requested documents can reasonably be attributed to and are likely to influence or affect those agreement terms.
Based on the foregoing, we conclude that the Union has not established that the settlement agreement and the Agency's written response to the employee's MSPB complaint are relevant, within the meaning of FPM Letter 711-164. As a result, it is unnecessary for us to decide whether the information is "necessary" under the FPM Letter. We conclude that the settlement agreement and the Agency's written response are not disclosable under the routine use exception to the Privacy Act, 5 U.S.C. § 552a(b)(3), and that the Arbitrator's finding otherwise is deficient.
Disclosure of the settlement agreement and the Agency's written response to the employee's MSPB complaint would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA, and is not authorized as a routine use under section 552a(b)(3) of the Privacy Act. Accordingly, the Arbitrator's award ordering disclosure is contrary to law under section 7122(a) of the Statute.
The award is set aside.
(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). Both parties filed briefs.
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. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2) (the Freedom of Information Act or FOIA exception) 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. Exemption 6 of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. Second, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected."
3. Article 31C of the agreement provides:
A grievance may only be pursued to arbitration by the Employer or the Union. However, any employee in the unit may present a grievance to the Employer and have it adjusted without the intervention of the Union, as long as the adjustment is not inconsistent with the terms of this Agreement and the Union is given the opportunity to be present at the adjustment on official time. The Employer shall provide a copy of any written grievance response to the Union.
Exceptions, Exhibit 5 at 2.
4. The Arbitrator also made various findings under section 7114 of the Statute but, as noted, concluded only that the Agency violated the parties' collective bargaining agreement.
5. In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338 (1995) (FAA), we set forth the approach to be used for addressing agency 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. Although this case involves an information request under the terms of a collective bargaining agreement, rather than the Statute, we apply the same balancing of privacy and public interests as we did in FAA and as we have done previously in arbitration cases. For example, National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 238 (1992). We also address the settlement agreement and the Agency's written response to the employee's MSPB complaint as presenting the same privacy and public interests because the parties have treated them as such.
6. 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 in