51:1144(93)CA - - Air Force, 56th Support Group, Macdill AFB, FL and NFFE, Local 153 - - 1996 FLRAdec CA - - v51 p1144
[ v51 p1144 ]
The decision of the Authority follows:
51 FLRA No. 93
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
56TH SUPPORT GROUP
MACDILL AIR FORCE BASE, FLORIDA
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
April 18, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs.
The consolidated 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 furnish the Union with certain information requested under section 7114(b)(4) of the Statute.(1) For the reasons stated below, we find that the Respondent violated the Statute, as alleged, by failing to furnish unsanitized performance plans. Accordingly, we order the Respondent to provide that information. We also find that the Respondent did not violate the Statute by failing to furnish unsanitized performance appraisals and a supervisor's work folder, because disclosure of that information would violate the Privacy Act.(2) Therefore, we dismiss that portion of the consolidated complaint.
On August 3, 1993, the Union requested unsanitized performance appraisals, performance plans,(3) and the supervisor's work folder, referred to as "AF971," for unit employee Linville for a 4-year period.(4) On September 28, 1993, the Union requested unsanitized performance appraisals and performance plans for unit employees in "Zone 1" for a 1-year period.(5) In both requests, the Union stated that it needed the information in connection with a grievance the Union was investigating.
After the Respondent denied both these requests, the parties met to discuss further the Union's information needs. The Union stated that "it was investigating potential grievances alleging discriminatory treatment against Union officials with respect to performance appraisals and cash awards, and that [it] wanted to compare the Union members' appraisals to their co-workers'." Stip. para. 22.
The parties stipulated that the information requested by the Union: is normally maintained by the Respondent in the regular course of business in its designated Privacy Act system of records; is reasonably available; is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Additionally, the parties stipulated that performance plans "are subject to release pursuant to 5 U.S.C. Section 552a(b)(2)." Stip. para. 10.
III. Positions of the Parties
A. General Counsel
First, with respect to disclosure of the performance plans relating to Linville and Zone 1 employees, the General Counsel maintains that as the Respondent stipulated that disclosure is required by law, namely, the Privacy Act and section 7114(b)(4) of the Statute, the Respondent has admitted to a violation of the Statute and has effectively consented to an order directing release of the plans.
Second, the General Counsel maintains that, consistent with FOIA Exemption 6, there is a public interest in disclosure of the performance appraisals for Linville and Zone 1 employees. Specifically, the General Counsel states that disclosure of such information would assist in promoting the fair and equitable treatment of Federal employees, including Union officials, and determining the manner in which the Respondent rewards superior performance. The General Counsel contends that this public interest outweighs the privacy interests of employees. The General Counsel also distinguishes this case from the Supreme Court's decision in United States Department of Defense v. FLRA, ___ U.S. ___, 114 S. Ct. 1006 (1994) (Department of Defense), on the basis that the public interest in appraisals is greater than the public interest in names and home addresses. As to the routine use exception to the Privacy Act, the General Counsel argues, consistent with the requirements of Federal Personnel Manual (FPM) Letter 711-164, that "the performance appraisal and related information is relevant and necessary." General Counsel's Brief at 14. Despite the parties' stipulation that performance appraisals are maintained in an agency system of records, the General Counsel makes no specific arguments with respect to disclosure of the appraisals as a routine use under an Air Force system of records.
Third, as to the AF971 regarding Linville, the General Counsel states that these supervisory records are analogous to the "spread sheets" that were at issue in United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312 (1992) (VARO). The General Counsel explains that "the Union needed [the records] to determine whether there was background information there used in preparing [Linville's] appraisal." General Counsel's Brief at 11, n.13.
With regard to disclosure of the appraisals and AF971 pertaining to employee Linville, the General Counsel argues that Linville's consent to be represented by the Union constitutes consent to disclosure of the information. Quoting Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991) (Department of the Navy), the General Counsel claims that "'[u]nder circumstances where the employee who is the subject of the records has designated the Union as his or her representative, [the Authority] find[s] that the Union's access to the relevant records would not be a clearly unwarranted invasion of personal privacy.'" General Counsel's Brief at 5 n.7.
Finally, the General Counsel claims, for the first time in its brief, that the Respondent was obligated to provide all of the requested performance appraisals in a sanitized form if the Respondent "conclusively demonstrate[d] that the Union did not need unsanitized appraisals[.]" Id. at 19 (emphasis and footnote omitted). The General Counsel asserts that this case is similar to U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324-25 (1990) (INS), in which the Authority found that the agency violated the Statute by failing to provide sanitized information, even though the union had requested unsanitized information.
The Respondent contends that performance appraisals are not releasable without the written consent of the employees involved and that disclosure without such consent would violate the Privacy Act. Citing 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) and Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984), the Respondent maintains that employees have significant privacy interests in their appraisals and that there is no public interest "in knowing an employee's rating which could conceivably outweigh an employee's privacy interest." Respondent's Brief at 9. As such, the Respondent claims that the employees' privacy interests outweigh whatever public interest would be served by disclosure.
Further, despite the parties' stipulation that the information is necessary, the Respondent claims that the Union failed to establish a particularized need for the performance appraisals that would outweigh the Respondent's countervailing anti-disclosure interests.
The Respondent makes no further arguments with respect to disclosure of any of the requested information. In addition, the Respondent does not address the General Counsel's claim that the Respondent was obligated to furnish the requested information in a sanitized form.
IV. Analysis and Conclusions
A. Disclosure of Performance Plans Concerning Linville and Zone 1 Employees Would Not Violate the Privacy Act and Is Required By Section 7114(b)(4) of the Statute
We find, based on the parties' stipulations, that the performance plans are disclosable consistent with the Privacy Act and section 7114(b)(4) of the Statute.(6) We conclude that it is appropriate in the circumstances of this case to rely on the stipulation that the plans are required to be disclosed pursuant to the FOIA and the stipulation that the information satisfies all the requirements of section 7114(b)(4). With regard to the former stipulation, we note particularly that, as the parties affirmatively referenced disclosure of the plans under the FOIA, they apparently made an informed judgment that the information could be disclosed under that statute. Consequently, we conclude that the failure to furnish the performance plans violated section 7116(a)(1), (5) and (8) of the Statute. We will order the Respondent to furnish the performance plans to the Union.
B. Disclosure of Performance Appraisals Concerning Linville and Zone 1 Employees and the AF971 Concerning Linville Is Inconsistent With the Privacy Act and Is Not Required Under the Statute (7)
1. Linville's Designation of the Union as Her Representative Does Not Constitute Consent to Disclosure Under the Privacy Act
The Privacy Act does not bar disclosure of requested information where an employee has provided such consent. 5 U.S.C. § 552a(a)(b). In this case, the parties agree that Linville's designation of the Union as her representative "did not expressly state that Ms. Linville was authorizing release of the requested information." Stip. para. 12.
Further, the General Counsel's reliance on the Union's information request, which reproduced a portion of a Union complaint form on which Linville had designated the Union to represent her "in the above-described complaint[,]" stip. Exhibit 5, is misplaced because that form does not establish Linville's implicit consent to disclosure. As the Respondent noted on receipt of this request, the issue for which the Union was providing representation was not specified on the form. As a result, the Respondent lawfully stated that "the information requested cannot be released until the appropriate authorization for release is received." Id., Exhibit 10. This reply thus made the Union aware of the need to procure Linville's consent and that, with appropriate authorization, the information requested could have been released. Although the General Counsel now claims that consent was provided, nothing in the record indicates why the Union did not, or could not, have procured Linville's consent in a manner that would have satisfied the requirements of the Privacy Act. We note that there is nothing to prevent the Union from obtaining Linville's consent for disclosure of her performance appraisals and the AF971 if there is presently a need for that information.
2. The Documents Are Maintained in an Air Force System of Records
Based on the parties' stipulation that the requested performance appraisals and the AF971 are maintained in an Air Force system of records, we assess the disclosability of the appraisals under that system of records. In view of the Authority's previous findings that performance appraisals and supporting documentation are maintained in OPM/GOVT-2, and the General Counsel's assertion that the information satisfies the requirements for disclosure consistent with that system of records, we find it appropriate to also address disclosure of the requested performance appraisals and the AF971 under that system as well. E.g., FAA, Fort Worth, 51 FLRA at 328-29; U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 346 (1995) (FAA). As we stated in FAA, 50 FLRA at 345, although parties bear various burdens in substantiating their claims regarding disclosure of information under the Privacy Act, including identification of the applicable system of records, we will consider matters that are otherwise apparent.
3. Disclosure of the Documents Would Result in a Clearly Unwarranted Invasion of Personal Privacy Under FOIA Exemption 6
In FAA, 50 FLRA at 345, we set forth the analytic 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. In FAA, which involved the disclosure of performance appraisals of bargaining unit employees, 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 of the requested information will serve that public interest. As we stated above, 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.
Applying that framework here, we find, in agreement with the Respondent and for the reasons more fully discussed in FAA, that employees have substantial privacy interests in shielding their individual performance appraisals from public view. Insofar as the AF971 constitutes background material on which appraisals specific to Linville were based, the same privacy interests that attach to performance appraisals attach as well to the AF971. See FAA, Fort Worth, 51 FLRA at 329. The Union's request encompasses unit employees' performance appraisals, and certain supporting documentation, whether favorable to the employee or not. In this regard, privacy interests may be heightened with respect to derogatory information contained in an appraisal but such interests also exist even when the information is favorable. See FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1059 (D.C. Cir. 1992); Gilbey v. Department of Interior, No. 89-0801 (RCL) 1990 WL 174889 (D.D.C. Oct. 22, 1990). Disclosure of appraisal and related information also could subject employees to embarrassment and jealousy among their co-workers and could result in discord at the workplace. E.g., U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995); FAA, 50 FLRA at 347.
Further, the fact that Linville designated the Union as her representative does not serve to "lessen" her privacy interests in the information sought. In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) (Reporters Committee), the Court held that "the identity of the requesting party has no bearing on the merits of his or her FOIA request." Subsequently, in Department of Defense, 114 S. Ct. at 1014, the Court stated that because "all FOIA requestors have an equal, and equally qualified, right to information," information that is sought "to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis." The import of these decisions is that, for purposes of information requests involving the FOIA, the Statute gives unions no special status vis-a-vis other requesters. To the extent that prior Authority decisions rest on unions having a special status because of their relationship to the individuals about whom information is sought, those decisions will no longer be followed. E.g., U.S. Department of Justice Office of Justice Programs, 45 FLRA 1022, 1026 (1992); U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 198-203 (1991); Department of the Navy, 38 FLRA 1410.
We also find that the General Counsel has established the existence of a public interest, cognizable under FOIA Exemption 6, that would be served by disclosure of the performance appraisals and the AF971. In particular, disclosure of that information would permit review of the ways in which the Respondent administers its appraisal program and permit monitoring of the public fisc to ensure that the Respondent's expenditure of monies for awards is appropriate.(8)
Nonetheless, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under FOIA Exemption 6 would not be enhanced by disclosure of the performance appraisals and supporting documentation in a manner that includes employee names. See, e.g., U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 255 (1995); VAMC, Newington, 51 FLRA at 153. In this connection, disclosure of unsanitized information may well enhance the Union's ability to use the information to determine whether Union officials had been treated in a discriminatory manner with respect to performance appraisals and cash awards. However, this interest is specific to the Union as the requesting party and, as discussed above, may not be considered in balancing interests under FOIA Exemption 6.(9) See Social Security Administration, San Francisco Bay Area, 51 FLRA 58, 65 (1995). Moreover, although the public has an interest in determining whether the Respondent has violated the Statute by, for example, treating Union officials in a disparate manner, the General Counsel has not shown how disclosure of unsanitized performance appraisals and supporting documentation would enhance a member of the public's (as opposed to the Union's) ability to determine whether such disparate treatment had occurred.
Finally, we find that the findings in VARO no longer provide support for the General Counsel's claim that disclosure of the AF971 does not violate the Privacy Act. In that case, the Authority found that disclosure of spread sheets containing production figures for individual unit employees was authorized under FOIA Exemption 6. In finding a public interest in disclosure of the information, the Authority relied on various factors, including the public interest embodied in the Statute, that have since been rejected. FAA, 50 FLRA at 344 n.6, 348. Other components of the Authority's alternative analysis under Reporters Committee, such as administering the respondent's appraisal system in a fair and even-handed manner and gaining insight into the efficiency of the processing of veterans benefits claims, either have not been shown to exist here or are outweighed by the intrusion on employee privacy interests.
We conclude, on balance, that the intrusion on employees' privacy interests outweighs the public interest that would be served by disclosure. Therefore, disclosure of the unsanitized appraisals and the AF971 would constitute a clearly unwarranted invasion of employees' personal privacy under FOIA Exemption 6.
4. Disclosure Is Not Authorized By the Routine Use Exception to the Privacy Act
Based on the parties' stipulation that the appraisals and the AF971 are maintained in an Air Force system of records, the routine use statement attendant to that system governs disclosure of the appraisals as a routine use. However, the Authority is unable to assess whether the Union's request for that information satisfies those requirements for disclosure because the routine use statement is not contained in the record. Specifically, there is no evidence as to whether the Union is a routine user of the information or whether the use to which the requested appraisals and AF971 would be put is consistent with the purposes for which the information was collected. Under these circumstances, the General Counsel, who maintains the burden of establishing that requested information satisfies the requirements of section 7114(b)(4) of the Statute, has failed to establish that the information is disclosable under the routine use exception to the Privacy Act.
In the alternative, we reach the same result by assessing disclosure of the appraisals and the AF971 under OPM/GOVT-2. OPM/GOVT-2 contains "Employee Performance File System Records." 57 Fed. Reg. 35709 (August 10, 1992). That system includes performance appraisals and supporting documentation. Id. 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." Id. at 35710. Accordingly, to determine whether the routine use exception applies here 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 216 (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."
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. As such, it is unnecessary to determine whether the information satisfies the standard of "necessary."
Applying the standard of "relevance" and the ordinary meaning of the terms "traceable," "logical," and "significant,"(10) 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. The Union requested the performance appraisals and the AF971 in order to compare the appraisals of Union members with those of their co-workers for the purpose of investigating potential grievances alleging discriminatory treatment of Union officials. The Union has not explained, and it is not clear from the record, in what manner the appraisals of Union members would assist in uncovering discriminatory treatment of Union officials. For example, there is nothing in the record to indicate that any of the employees whose appraisals were requested are Union officials or work in the same unit as Union officials, such that the appraisals could be used to assess the existence or non-existence of discriminatory treatment. Further, based on the General Counsel's uncontradicted assertion that the AF971 constitutes background information in connection with Linville's performance appraisal, we fail to see how that particular kind of information is likely to serve the purpose for which the information was sought. See U.S. Department of Justice, Federal Correctional Facility, El Reno. Oklahoma, 51 FLRA 584, 591-92 (1995); VA, St. Petersburg, 51 FLRA at 538-40.
Accordingly, we conclude that disclosure of the performance appraisals and the AF971 is not consistent with the routine use exception to the Privacy Act.
C. The Claimed Failure to Provide Sanitized Performance Appraisals Is Not Properly Before Us
A complaint serves to put a respondent on notice of the basis of the charges against it. E.g., U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 173 (1991). Where a complaint fails to do so, the Authority may nonetheless address a claimed violation of the Statute where that claim is fully and fairly litigated. U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467-68 (1995) (DOL). In this case, neither the unfair labor practice charges nor the consolidated complaint alleged that the Respondent violated the Statute by failing to furnish unsanitized performance appraisals concerning Linville and the employees in Zone 1.(11) Further, there is no evidence in the record that the Union had ever requested or offered to accept the appraisals in a sanitized form. Specifically, there is nothing in the correspondence between the Union and the Respondent that addressed the furnishing of the requested material in a sanitized form. Consequently, nothing in this record would support a finding that the issue was fully and fairly litigated.
As to the General Counsel's reliance on INS, the Authority stated in DOL that it will no longer follow previous decisions to the extent that they hold that a respondent may be found to have violated the Statute by failing to disclose sanitized information without regard to whether such violation was charged in the complaint or fully and fairly litigated. 51 FLRA at 468, n.6.
In sum, we find that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the Union with unsanitized performance plans. The Respondent did not violate the Statute based on its refusal to furnish unsanitized performance appraisals and the AF971, as disclosure of such information would be inconsistent with the Privacy Act.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Air Force, 56th Support Group, MacDill Air Force Base, Florida shall:
1. Cease and desist from:
(a) Failing and refusing to furnish performance plans requested by the National Federation of Federal Employees, Local 153, the exclusive representative of certain of its employees, pursuant to the Federal Service Labor-Management Relations Statute.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Furnish the performance plans requested by the National Federation of Federal Employees, Local 153, the exclusive representative of certain of its employees.
(b) Post at its facilities at MacDill Air Force Base 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 Regulations, notify the Regional Director of the Atlanta Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
The allegations in the consolidated complaint that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with unsanitized performance appraisals and the AF971 are dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, 56th Support Group, MacDill Air Force Base, Florida, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT refuse to furnish the performance plans requested by the National Federation of Federal Employees, Local 153, the exclusive representative of certain of our employees, pursuant to the Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.
WE WILL furnish the performance plans requested by the National Federation of Federal Employees, Local 153.
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, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, Suite 701, 285 Peachtree Center Ave., Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.
(If blank, the decision does not have footnotes.)
1. During the pendency of this proceeding, the Authority granted the General Counsel's motion to sever Case No. AT-CA-31326 from the consolidated complaint, and to grant the Union's request to withdraw the charge. Accordingly, we do not discuss the information request contained in that charge, except to the extent it provides elucidation for the issues that remain before the Authority.
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. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act (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 (b)(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. Performance plans contain information on individual employees, including each employee's name, social security number, position title, description of duties, and identification of each performance element, with a notation as to whether the element is critical or noncritical. We recognize that disclosure of social security numbers may implicate Privacy Act considerations. However, we do not address the privacy aspects of that particular identifying information in view of the parties' stipulation that the plans are disclosable consistent with the Privacy Act and the absence of any arguments regarding the privacy interests in social security numbers.
4. The record identifies the AF971 as the "Supervisor's Work Folder," stip. exh. 5, or the "records kept by the supervisor[,]" stip. para. 12. Based on the General Counsel's assertion, without contravention by the Respondent, that the AF971 constitutes background information connected to Linville's appraisal, we view the AF971 as constituting supporting documentation to Linville's performance appraisal. E.g., Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, 51 FLRA 324 (1995) (FAA, Fort Worth); U.S. Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut, 51 FLRA 147 (1995) (VAMC, Newington).
5. The record contains no description of Zone 1.
6. As the performance plans do not contain employee ratings, this case is distinguishable from U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center, 51 FLRA 276 (1995), where the Authority determined that disclosure of "Individual Performance Plans," which contained employees' final performance ratings, would constitute a clearly unwarranted invasion of personal privacy under FOIA Exemption 6.
7. In view of this disposition, it is unnecessary to address whether the parties' stipulation that the performance appraisals are "necessary" would be binding on the parties.
8. Although the Union did not request award information, the Union stated that it needed the requested appraisals in order to determine whether Union officials were treated in a discriminatory manner with respect to cash awards, as well as appraisals.
9. We note that the Union could have requested disclosure of the performance appraisals of employees in Zone 1 with the names of employees deleted, but coded in a manner that would have fulfilled the Union's stated needs. As we find in Part IV.C. below, the Union did not make such a request. Disclosure of sanitized and coded performance appraisal information presumably would not have identified particular employees and their performance appraisals and, thereby, would have protected against a clearly unwarranted invasion of employees' privacy, within the meaning of FOIA Exemption 6. However, we recognize that sanitization of Linville's performance appraisals and the AF971 would not have protected Linville's privacy interests because her identity is known. See U.S. Department of Veterans Affairs, Regional Office, St. Petersburg, Florida, 51 FLRA 530, 537 (1995) (VA, St. Petersburg); Federal Aviation Administration, New York TRACON, Westbury, New York, 51 FLRA 115, 122 n.9 (1995).
10. 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 is in accordance with inferences reasonably drawn from or proceeding or surrounding or predictable facts or events or circumstances"; and "significant" refers to "having or likely to have influence or effect." The Authority refers to dictionary definitions of terms to supply meaning where none has otherwise been provided. For example, International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and International Plate Printers, Die Stampers and Engravers Union of North America, Local Nos. 2, 24, and 32 and Graphic Communications International Union, Local No. 285 and International Association of Siderographers, Washington Association and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 683 (1995). See also U.S. Department of the Army, Red River Depot, Texarkana, Texas v. FLRA, 977 F.2d 1490, 1492 (D.C. Cir. 1992) (court found that the Authority's adoption of the dictionary definition of a statutory term was permissible).
11. In contrast, in the portion of the case that was severed and remanded to the regional director per the General Counsel's motion, the complaint specifically alleged that the failure to provide the information first in an unsanitized form and then in a sanitized form violated the Statute.