51:0599(54)CA - - Air Force, 375th Mission Support Squadron, Scott AFB, IL and NAGE, Local R7-23 - - 1995 FLRAdec CA - - v51 p599
[ v51 p599 ]
The decision of the Authority follows:
51 FLRA No. 54
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
375th MISSION SUPPORT SQUADRON
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
December 8, 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 on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions,(1) and a brief in response to a Federal Register Notice, 59 Fed. Reg. 63995 (1994), with respect to the standard to be applied in determining whether information is necessary under section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute).
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with performance ratings and awards issued to bargaining unit employees, by name, for the rating cycle ending June 30, 1992. The Judge found that the Respondent violated the Statute.
Upon consideration of the Judge's decision and the entire record in this case, we conclude that disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a,(2) and that, therefore, the Respondent did not violate 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 requested that "performance ratings and awards data for the rating cycle ending 30 Jun 92, be provided for unit employees in the usual format." General Counsel Exhibit 3. The record reflects that, in prior years, the Respondent had furnished to the Union lists containing performance rating and award data that identified employees by name, organization, pay grade, job title, overall performance rating, and monetary award amount. On this occasion, however, the Respondent furnished the information with the names of the employees deleted. In all other respects, the information provided was in the same format.
The Judge determined that the unsanitized performance rating and award data was not prohibited from disclosure by the Privacy Act but, rather, was releasable under Exemption 6 of the FOIA. The Judge balanced the employees' privacy interests in the information against the public interest in disclosure, which the Judge found to be "that embodied in the Statute." Judge's Decision at 7. The Judge determined that disclosure of the performance rating and award data in an unsanitized form would serve the public interest by assisting the Union in monitoring the administration of the performance appraisal and award systems and ensuring that employees are not treated in a disparate manner. The Judge further found that the Respondent failed to articulate how disclosure would constitute a clearly unwarranted invasion of personal privacy. The Judge also found that there was no evidence in the record indicating that the Union would publicize or carelessly circulate the data.
Additionally, the Judge concluded that the unsanitized performance rating and award information was necessary under section 7114(b)(4) of the Statute, was reasonably available and normally maintained, and did not constitute guidance, advice, counsel, or training related to collective bargaining.
III. Positions of the Parties
The Respondent excepts to the Judge's finding that the requested rating and award material was not prohibited from disclosure by the Privacy Act, relying on United States Department of Defense v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994) (Department of Defense); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989); and 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). The Respondent argues that performance appraisals and awards are intensely personal and that, regardless of whether appraisals are favorable or unfavorable, employees have a significant interest in keeping such information private. The Respondent further contends that, although data concerning performance appraisals and awards might shed some "minimal light" on the operation of the Respondent's appraisal and awards programs, "the corresponding identity data would not brighten that light." Exceptions at 23. Therefore, the Respondent asserts that when the employees' substantial privacy interests are balanced against the minimal public interest, disclosure would result in a clearly unwarranted invasion of personal privacy.
Additionally, the Respondent contends that the Union failed to articulate a need for the unsanitized performance rating and award information at the time of its request and did not demonstrate a particularized need for that information. The Respondent argues, contrary to the Judge's finding, that prior disclosures of unsanitized rating and award material to the Union do not absolve the Union from meeting its burden of establishing a need for such information in this case. The Respondent also claims that the Judge failed to take into account countervailing interests against the disclosure of the performance rating and award information.(3)
B. General Counsel
The General Counsel asserts that the Judge properly determined that the information was not prohibited from disclosure by the Privacy Act. The General Counsel contends that in balancing the employees' privacy interests against the public interest in this case, disclosure would not result in a clearly unwarranted invasion of personal privacy because the intrusion on the employees' personal privacy is minimal. According to the General Counsel, there is no evidence to indicate that employees' privacy suffered when the performance rating and award data was disclosed to the Union in prior years. The General Counsel argues that there is a significant public interest in the manner in which the Respondent appraises the performance of its employees and spends tax dollars on performance awards, and that disclosure would ensure that the Respondent's operations are free from discriminatory practices and comply with applicable laws, rules, regulations and the parties' collective bargaining agreement.
The General Counsel also contends that, applying a particularized need standard, performance rating and award data is necessary under section 7114(b)(4) of the Statute because, as the Judge found, without the information the Union would be unable to assess whether there was disparate treatment in the granting of performance ratings or awards.
IV. Analysis and Conclusions
We find that disclosure of the name-identified performance rating and award information would constitute a clearly unwarranted invasion of personal privacy under FOIA Exemption 6. Accordingly, without addressing the parties' arguments as to whether the information is necessary, within the meaning of section 7114(b)(4) of the Statute, we conclude that the Respondent did not violate the Statute by refusing to provide the information.
In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338 (1995) (FAA), which involved the disclosure of performance appraisals of bargaining unit employees, we set forth the analytical approach we will follow in assessing an agency's 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 has already provided the Union with information concerning performance ratings and awards, consisting of the employees' organizations, pay grades, job titles, overall performance ratings and monetary award amounts, with the employees' names redacted. Therefore, the question before us concerns the disclosure of the names of the employees about whom performance rating and award information has already been disclosed.
Before analyzing the respective privacy and public interests, we address two matters. First, we note that the Respondent does not address whether the information is contained in a system of records. However, as we found in FAA, 50 FLRA at 346, performance appraisals, which necessarily include overall ratings, of Federal employees are contained in a system of records. The same system of records also contains material on employee awards. Social Security Administration, San Francisco Bay Area, 51 FLRA 58, 63 (1995) (SSA).(4)
Second, we address what disclosure of the information at issue in this case would reveal about employees. In so doing, we are guided by the statement in Halloran v. Veterans Administration, 874 F.2d 315, 321 (5th Cir. 1989) (Halloran) that "[i]n both FOIA and other contexts involving privacy concerns, it has long been the rule that our concern is not with the identifying information per se, but with the connection between such information and some other detail . . . which the individual would not wish to be publicly disclosed." (Footnote omitted). In this case, we find that in order to comply with the Union's request that the performance rating data be furnished "in the usual format[,]" General Counsel Exhibit 3, the Respondent would have to provide employee names in such a way as to permit the identification of employee performance ratings.(5) Only then would the Union be able, as it testified, to use those names to "match them up to the data" that was previously provided. Transcript at 17. Furnishing employee names in this manner would, in effect, give the Union unsanitized ratings of all employees.
A similar result would be reached if the Respondent were to comply with the Union's request for award data because disclosure of that information "in the usual format" would necessarily lead to disclosure of employee ratings in this case. To illustrate, we find that, as revealed in an exhibit contained in the record and excerpted in the attached Appendix, award amounts vary greatly and are unusual sums. For example, only one employee--the first entry on the chart--is listed as receiving an award in the amount of $263.00. If the Respondent provided the Union with information in a way that disclosed the name of the employee receiving this award, the Union would be able to discern this employee's overall rating by matching such information to the column on the chart identifying the employee's overall rating. In this example, knowing the identity of the employee who received that particular award would reveal that the employee's overall performance rating corresponds to a level of "excellent." Therefore, for all award sums that are unique, the Union would be able to determine individual employee ratings if it obtained the requested information. Indeed, in the circumstances of this case, the same would also hold true for award amounts that are duplicative. Our examination of the entire exhibit reveals that in every instance in which an award amount is duplicated, the employees who received that particular amount also received the same performance rating. For example, there are five employees who each received an award in the amount of $907. They all attained a performance rating of "superior." Similarly, all eight employees who received an award in the amount of $427 attained the rating of "excellent." Thus, based on the record in this case, it is clear that in all instances knowledge of the particular award amount an employee received would enable the Union to ascertain that employee's rating.
Having made this determination, we find, in agreement with the Respondent, that the employees have substantial privacy interests in not having this rating information disclosed.(6) Previously, we have determined that employees have significant privacy interests in their final performance ratings. SSA. Disclosure of favorable, as well as unfavorable, information could subject employees to embarrassment and jealousy among co-workers, which could result in discord at the workplace. FAA, 50 FLRA at 347. See also U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995); U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388 (1995) (FAA, Jacksonville). We find unpersuasive the General Counsel's assertion that the intrusion on employees' personal privacy resulting from disclosure of the requested information is minimal because there is no evidence that any employee "suffered or was injured" from prior disclosures of the same type of information. General Counsel's Opposition at 6. The absence of such evidence in no way diminishes the substantial privacy interests that employees retain in these documents. See FAA, Jacksonville, 50 FLRA at 393. Cf. Halloran, 874 F.2d at 322 ("that otherwise-private information may have been at one time or in some way in the 'public' domain does not mean that a person irretrievably loses his or her privacy interests in it").
The requested information also implicates a public interest cognizable under Exemption 6 because the information would shed light on Government operations and serve the public interest of ensuring that the appraisal and awards systems are administered in a fair and equitable manner, without discrimination, and in accordance with laws, rules and regulations. The information relating to awards also would serve the public interest of monitoring the public fisc to ensure that the Respondent's expenditure of monies for awards is appropriate. As we noted in SSA, 51 FLRA at 64, n.7, the public interest in awards information generally is recognized in 5 C.F.R. § 293.311.(7) More particularly in this case, permitting comparisons of employee ratings and awards, including award amounts, would enable a requestor to assess whether award monies were being disbursed to those employees who were most deserving based on job performance.
However, our review of the record leads us to conclude that the information already provided would serve this public interest and, further, that the names of rating and award recipients--the precise portion of the information withheld by the Respondent--would not shed any additional light on the Government's conduct. United States Department of State v. Ray, 502 U.S. 164, 178 (1991) (Court concluded that agency properly redacted names and other identifying information from summaries of certain interviews). See, e.g., FAA, Jacksonville, 50 FLRA at 393-94. See also Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (in finding that agency was justified in deleting names and other personal identifiers from employee evaluation forms, court stated that public interest in forms could "be substantially advanced . . . short of disclosure of the names . . . found on evaluation forms").
In this connection, disclosure of the employees' names may well enhance the Union's ability to use the information to process grievances. However, this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6. See SSA, 51 FLRA at 65. See also Department of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]"); Reporters Committee, 489 U.S. at 771 ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request[.]"). Moreover, although the public has "a legitimate interest in how the [Respondent] rates its employees and expends tax dollars for awards[,]" Opposition at 6, the General Counsel has not shown how disclosure of unsanitized ratings and awards information would enhance a member of the public's (as opposed to the Union's) ability to determine whether the Respondent was administering its performance appraisal and awards systems equitably. Cf. Painting and Drywall Work Preservation Fund, Inc. 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 also find, contrary to the Judge, that even if the Union were to agree to maintain the confidentiality of the information, such an assurance is not an appropriate consideration in balancing the privacy and public interests because every requestor must be treated the same for purposes of determining whether disclosure of requested information is consistent with the FOIA. FAA, 50 FLRA at 346, n.8.
We conclude that, on balance, the public interest served by disclosure of the names of employees about whom performance rating and award information has already been provided, is outweighed by the invasion of employees' privacy that would result. Accordingly, we find that disclosure of the requested names would constitute 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 requested information under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute.
The complaint is dismissed.
PERSONAL DATA - PRIVACY ACT OF 1974
PREPARED 92 SEP 22 20:49 DESIRE LIST (PA) AS OF 92 SEP 22 PCN N130050SF
BARGAINING UNIT EMPLOYEES - COMMISSARY EXCLUDED
ORGANIZATION 932 AEA GP
PP-SERS-GR POSITION TITLE OFF-SYM APPR-CURR PERF AWD-CD EFF-DATE AWD-AMT
GS-0501-09 FUNDS MANAGEMENT ANALYST ACB 988989898 D 9L 920901 00263
GS-0545-04 MILITARY PAY CLERK (OFFICE
AUTOMATION) ACB 566454455 G
GS-0560-07 BUDGET ANALYST ACB 555665566 G
GS-1035-11 PUBLIC AFFAIRS SPECIALIST(ART) PA 988999998 D 9L 920901 00415
GS-1702-06 TRAINING TECHNICIAN (OFFICE
AUTOMATION) DPMPT 887898777 G
GS-0303-06 OPERATIONS TECHNICIAN (ART) DOTF 998989889 D 9L 920901 00268
GS-0326-04 OFFICE AUTOMATION CLERK DOTF 777877777 G
GS-0303-05 MEDICAL ADMINISTRATIVE
ASSISTANT (ART) SGA 897988778 D 9L 920901 00212
GS-0326-04 OFFICE AUTOMATION CLERK SGA 888878767 G
GS-0326-04 OFFICE AUTOMATION CLERK 932AAGSG 888999898 D 9L 920901 00059
GS-0318-05 SECRETARY (OFFICE AUTOMATION) MA 999999999 A 9L 920901 00509
GS-0344-07 MANAGEMENT ASSISTANT (ART) MAP 778676777 G
GS-1702-09 TRAINING TECHNICIAN (ART) MAT 889788999 D 9L 920901 00343
WG-2610-12 ELECTRONIC INTEGRATED SYSTEMS
MECHANIC (ART) MAAESC 998899999 A 9L 920901 00844
WG 2610-12 ELECTRONIC INTEGRATED SYSTEMS
MECHANIC (ART) MAA1 878877877 G
WG-2610-12 ELECTRONIC INTEGRATED SYSTEMS
MECHANIC (ART) MAA1 989989888 D 9L 920901 00422
WG-2892-10 AIRCRAFT ELECTRICIAN (ART) MAAES 888888888 D 9L 920901 00366
WG-2892-10 AIRCRAFT ELECTRICIAN (ART) MAA1 999999999 A 9L 920901 00788
WG-3414-11 MACHINIST (ART) MAAEF 899998999 A 9L 920901 00815
WG-3806-10 SHEET METAL MECHANIC
(AIRCRAFT)(ART) MAAEF 678798778 G
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF THE AIR FORCE,
375TH MISSION SUPPORT SQUADRON,
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-23, SEIU, AFL-CIO
Major David H. Brash
For the Respondent
Susanne S. Matlin, Esq.
For the General Counsel
Mr. Carl L. Denton
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
Statement of the Case
The National Association of Government Employees, Local R7-23, SEIU, AFL-CIO (herein called the Union) filed an unfair labor practice charge on September 28, 1992, against Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois (herein called Respondent). Thereafter, on January 25, 1993, the Chicago Regional Director, Federal Labor Relations Authority (herein called Authority) issued a Complaint and Notice of Hearing alleging that Respondent violated section 7116(a)(1), (5) and (8), of the Federal Service Labor-Management Relations Statute, as amended, (herein called the Statute) by failing to provide the names of employees receiving performance ratings and awards for the rating cycle ending June 30, 1992.
A hearing was held in St. Louis, Missouri at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence I make the following:
Findings of Fact
On July 14, 1992, Union President Carl Denton made a request to Respondent for performance rating and award data for the rating cycle ending June 30, 1992. He requested that the data be provided in the usual format. Several years preceding this request Denton had made requests for and received this very information. In response to the Union's previous requests, Respondent provided Denton with computerized listings showing the names of bargaining unit employees, their organizations, pay grades, job titles, overall performance ratings, appraisal factors, monetary awards, if any, received by the employees. On this occasion, however Respondent answered the Union's request on July 22, 1992, stating that it would supply the data in early October. Respondent attached a summary describing the decision from the United States Court of Appeals District of Columbia Circuit, in Federal Labor Relations Authority v. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992). This opinion of the D.C. Circuit held that the Privacy Act prevented an exclusive representative from receiving the names of unit employees who received superior performance ratings.
Denton replied on July 23, 1992, stating that he felt the Union should receive the data requested before September 1, 1992 and in the same form that it had been provided in previous years. Denton thanked Respondent for the court decision, but stated his disagreement with it.
Thereafter, on August 4, 1992, Respondent indicated it would provide the data as soon as possible. When Respondent failed to provide the data by September 1, 1992, the Union filed a Pre-Complaint under the parties' negotiated agreement.
Although the Union never received the data it requested, it received some information pursuant to its July 14, 1992 request on September 24, 1992. In that instance the Union received the computerized listing with all the information requested except the names of the employees that had been deleted. The data provided was not consistent with that the Union received in prior years and it was not what the Union needed and requested on July 14, 1992.
The Union's need for the performance rating and award data in unsanitized format was stated at the hearing as information which would allow it to exercise its broad representational functions and responsibilities in an intelligent informed and effective manner. Furthermore, the information was needed to evaluate the merits of performance ratings related complaints and the processing of performance ratings related grievances. Furthermore, it needed this information to evaluate whether standards were applied in a fair and equitable manner, to ensure that Union members and non-members were treated in a like fashion and to assist in handling cases involving dissatisfaction with the failure to receive or the amount of an award. Allegations of disparate treatment for whatever reason require the Union to compare the complainant to other unit employees. The unsanitized data therefore, was necessary for the Union to perform its duties within the time frames set forth in the negotiated grievance and arbitration process.
A. The names of bargaining unit employees who have receive performance ratings and awards are reasonably available and normally maintained by Respondent in the regular course of business.
The General Counsel contends that the information requested by the Union on July 14, 1992 is reasonably available and normally maintained by Respondent. Denton's testimony that Respondent supplied the same information he was now requesting from 1987 to 1991 and the lack of any indication that circumstances had changed with respect to the availability and maintenance of the data seems to confirm the General Counsel's position. Furthermore, Respondent offered no evidence to support its denial of the availability and normal maintenance of this data. In these circumstances, there is no real issue concerning availability of and Respondent's maintaining the requested data. Therefore, it is found that the information requested is reasonably available and normally maintained by Respondent.
B. The names of bargaining unit employees who have received performance ratings and awards does not constitute guidance, advice, counsel or training related to collective bargaining.
The requested information does not constitute management guidance, advice, counseling or training within the meaning of section 7114(b)(4). Again Denton's testimony supports such a finding. Furthermore, Respondent offered no evidence requiring a finding that the requested information contained "intramanagement" materials as defined by the Statute. Accordingly, it is found that the information requested does not constitute management guidance, advice, counsel or training related to collective bargaining under section 7114(b)(4) of the Statute.
C. Were the names of bargaining unit employees who received performance ratings and awards "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining".
The General Counsel claims that, under the circumstances of this case, the names of bargaining unit employees receiving performance ratings and awards are necessary for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. Thus, it insists the Union identified why the requested information was necessary and Respondent recognized that need i.e. monitoring the administration of the appraisal and award systems, investigating and processing grievances and ensuring that employees were not treated in a disparate manner. Clearly, Respondent had previously supplied the information to the Union over a four year period from 1987 to 1991 without questioning its necessity thereby, leading one to believe that it was at least tacitly aware of the need.
The investigation, evaluation and processing of potential grievances is undoubtedly a significant part of the exclusive representatives responsibility. The Authority has certainly acknowledged that significance and has consistently held that under section 7114(b)(4) of the Statute, the exclusive representative has a right to information that is necessary to enable it to fulfill its representational functions, including data which assists in resolving potential grievances. Internal Revenue Service, 40 FLRA 1070 (1991); Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310 (1990); Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987 (1990). Furthermore, it is clear that an exclusive representative is entitled to information under the Statute to realistically assess the strengths or weaknesses of a potential grievant's position. See Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191 (1991).
Respondent's argument that the Union made no showing of a "particularized need" for the information before hearing notwithstanding, it is my view that the Union's need for the information requested is clearly established on the record as one which would aid it in fulfilling its representational duties. While the Authority has definitely approved application of the "particularized need" test in information cases where the primary issue is whether the requested information constituted "management advice, guidance, counsel, or training. . ." and, therefore is normally not discoverable under section 7114(b)(4) of the Statute, it has not to date applied such a demanding test to documents that are not strictly "intramanagement". National Park Service, National Capital Region, United States Park Police, 48 FLRA No. 127 (1993). Thus, the instant matter is not governed by the more exacting test for "intramanagement" materials, but falls under those cases where the requested information was found necessary because the exclusive representative needed the information in order to fulfill its representational functions.
The record reveals that the information in this case was necessary to evaluate the merits of performance ratings and award related grievances which by the way, appear to have been numerous. According to Denton, the Union had processed about 200 such grievances. In particular, the information was needed to evaluate whether standards were applied in a fair and equitable manner and whether union members and non-members were treated in a like manner. Furthermore, Denton's testimony established the need to have the names of the employees as part of the computer print-out he requested to assist in handling cases involving dissatisfaction with the failure to receive or the amount of an award. According to Denton, without the names of employees on the computer print-out, it was virtually impossible for the Union to do a thorough analysis of the grievances they were getting from employees. It is not difficult to see that a print-out which did not indicate the employee's sex or dues paying status places the Union in an awkward, if not impossible position of having to determine whether there was disparate treatment in ratings or awards based on either gender or union status without adequate information with which to compare the claims. Accordingly, it is found Denton's request was sufficient to satisfy any existing need requirement and therefore, to justify the release of the requested information in unsanitized form. Therefore, it is concluded that the names of bargaining unit employees who received performance ratings and awards were necessary for section 7114(b)(4)(B) purposes.
D. Whether the Privacy Act precludes Respondent from furnishing the names of bargaining unit employees who received performance ratings and awards to the exclusive representative.
There is a balancing test to determine whether the Privacy Act prohibits disclosure of information under section 7114(b)(4) of the Statute. See, U.S. Department of Transportation, Washington, D.C., 47 FLRA 1107 (1993). Under that test a balance is struck between the employee's right to privacy against the public interest in disclosure. One can say with certainty that many individual employees will view information such as sought in this case, as private and thus, feel that the release of the information is an invasion of his or her own privacy. Be that as it may, the exclusive representative's need for the information should not be nullified or rendered any less important simply because of individual concerns. This is particularly true, where as here, the exclusive representative is representing employees who are questioning the efficacy of the performance ratings and awards. Clearly, early resolution of such grievances or potential grievances where the public interest is involved points toward a finding that the information should be made available in unsanitized form. Thus, release of requested data in unsanitized form has already been ordered despite the fact that the disclosure might be viewed as an invasion of personal privacy by individual employees. See U.S. Department of Veterans Affairs, Regional Office, San Diego, California 44 FLRA 312 (1992); Social Security Administration and Social Security Administration Field Operations Region II, 43 FLRA 164 (1991).
5 U.S.C. § 552a is the Privacy Act which regulates disclosure of information in an agency record within a system of records retrievable by reference to an individual's name or other personal identifier. Such records are generally prohibited from disclosure unless one of the specific Privacy Act exceptions under 5 U.S.C. § 552a(b) is applicable. Section 552a(b)(2) permits disclosure of Privacy Act protected information to the extent such information is required to be released under the Freedom of Information Act (FOIA) provides that all records in the possession of the federal government agencies must be disclosed upon request unless subject to a specific FOIA exemption. Section (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (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.).
In making a determination as to whether requested information falls within the (b)(6) exemption, it is necessary to balance the competing interest of the employees' privacy against the public interest in disclosure. Moreover, the public interest to be examined when applying the balancing test required by exemption (b)(6), is that embodied in the Statute.
Here, there are serious public interests favoring the disclosure of the information in unsanitized form for there is minimal intrusion into the employees' privacy interests. In this case, the documents at issue which are arguably within the purview of the Privacy Act are the performance ratings and awards. Their disclosure in unsanitized form appears essential to assist the Union in evaluating the merits of performance rating related complaints and the processing of performance rating related grievances. The disclosure of the names of the employees on the performance ratings and awards most certainly serves the public interest since it aids the Union in monitoring the administration of the appraisal and award systems, investigating and processing grievances and ensuring that employees are not treated in a disparate manner. See e.g., U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Montana, 39 FLRA 241 (1991).
Of particular note, Respondent has not articulated how, or in what manner, the disclosure of the requested information would constitute a clearly unwarranted invasion of employees' privacy interests to either the exclusive representative or to this forum. Respondent, in fact, has never stated how disclosure of the information implicates any privacy interests of the affected bargaining unit employees, or how the employees would be stigmatized by the release of the data. Furthermore, there is no evidence in the record or any reason to believe that the Union might publicize the information, or carelessly circulate the information. See, e.g., Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987).
The central purpose of FOIA is to ensure that the Government's activities be opened to the sharp eye of public scrutiny. U.S. Dep't of Justice v. Reporters Committee, 109 S. Ct. 1468, 1482 (1989). (Reporters Committee). Additionally, official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. The Union, without the names of the employees, would be unable to discern whether promotion actions or awards were made on a discriminatory basis.
Under these circumstances, the balancing of the employees' privacy interests against the exclusive representative's need for the information would not result in a "clearly unwarranted" invasion of personal privacy.
Having rejected all of Respondent's arguments in this matter, it found that the release of the names of bargaining unit employees who received performance ratings and awards is not prohibited by law, specifically the Privacy Act. The release of such data is compatible with the Privacy Act and is consistent with section 7114(b)(4) of the Statute. Accordingly, it is found that Respondent's failure to provide the above information constituted a violation of section 7116(a)(1), (5) and (8) of the Statute.
Therefore, it is recommended that the Authority adopt the following:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of its employees, unsanitized copies of requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with performance ratings and awards.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of its employees, unsanitized copies of requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with performance ratings and awards.
(b) Post at its Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, DC, February 28, 1994
ELI NASH, JR.
Administrative Law Judges
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to provide the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO the exclusive representative of our employees, unsanitized copies of requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with performance ratings and awards.
WE WILL NOT in any like or related manner interfere with, restrain or coerce its employees in the exercise of rights assured by the Statute.
WE WILL, upon request, provide the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of our employees, unsanitized copies of requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with performance ratings and awards.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Region, 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.
(If blank, the decision does not have footnotes.)
1. The Respondent filed a motion to strike a portion of the General Counsel's opposition, in which the General Counsel argued, for the first time, the applicability of the routine use exception of the Privacy Act, 5 U.S.C. § 552a(b)(3). The General Counsel filed an opposition to the motion to strike. Under section 2429.5 of the Authority's Regulations, the Authority will not consider any issue that was not presented in the proceedings before the Judge. Although, as the General Counsel notes, routine use is an exception to the Privacy Act, there is nothing in the record to indicate that the General Counsel had argued before the Judge that the documents sought were disclosable based on the routine use exception. Accordingly, we will not consider the argument further. See, e.g., Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021, 1036 (1992).
2. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption (b)(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[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA.
3. The Respondent also excepts to the Judge's statement, in finding the information necessary under section 7114(b)(4) of the Statute, that furnishing the information in a form that did not indicate each employee's sex or dues paying status would impair the Union's ability to assess disparate treatment of employees. The Respondent claims that data concerning sex and dues paying status was not part of the Union's request and was not litigated. Because we do not address the necessity of the information under section 7114(b)(4), see our discussion infra, we will not discuss this matter further.
4. Although in SSA we referenced the system of records at 55 Fed. Reg. 3843 (1990), we note that a more current system of records contains the same material on employee awards. 57 Fed. Reg. 35709-10 (1992).
5. In this regard, the situation presented here is analogous to that in SSA, in which a union sought the names of employees who had attained particular levels of performance and who either did or did not receive awards. We found that disclosure of the names inherently would identify rating information about individual employees and we took that factor into account in balancing the interests under FOIA Exemption 6. 51 FLRA at 64.
6. We find it unnecessary to separately address whether employees possess privacy interests in the awards information because, as we explain below, the privacy interests in employee ratings, on balance, are sufficient to outweigh the public interest in disclosure of the unsanitized performance rating and award information.
7. 5 C.F.R. § 293.311 permits, among other things, public access to salary information, including awards, to the extent that such access does not also reveal matters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. See 5 C.F.R. §§ 293.311(a)(4); 293.311(b)(1). Given the nature of the request, and for the reasons we have discussed, disclosure of the requested employees' names would reveal information regarding each employee's performance rating, which, as we conclude below, would result in a clearly unwarranted invasion of the employees' privacy.
8. The material in this Appendix was supplied in General Counsel Exhibit 8 at 2. The performance ratings identified in this list correspond to the following levels of performance: A = superior; D = excellent; G = fully successful. General Counsel's Exh. 4 at 1.