File 2: Opinion of Member Wasserman
[ v55 p1188 ]
Dissenting Opinion of Member Wasserman
I agree with the disposition of all the provisions except for Provision 9. As explained below, I would find that Provision 9 is not contrary to law and would order the Agency head to rescind its disapproval.
From the record, it appears that the Agency's sole claim in support of its disapproval of the provision was an asserted conflict with the right to determine internal security practices under section 7106(a)(1) of the Statute. In my view, the Agency has not shown a link or reasonable connection between the right to safeguard its personnel, physical property or operations and withholding audiotapes, videotapes or stenographic records of employee interviews.
The Agency asserts, and the majority finds, that disclosure of the "tempo" of the questioning, the exact wording of a particular question, and the type of questions to expect could compromise the integrity of an investigation. I find such concerns to be highly speculative in this case and insufficient to establish the requisite linkage under the Authority's test. The Union states that the Agency has abided by comparable contract provisions for a number of years. [n1] Yet, the Agency offers no proof that investigations have been compromised in any way since these provisions were in effect. The concerns expressed in this case, which are limited to potential risks