File 2: Opinion of Member Cabaniss

[ v55 p1262 ]

Dissenting Opinion of Member Cabaniss:

      I believe that the Respondents have been found to have violated the Statute based on a standard that is no longer appropriate, having been, quite rightly, rejected upon judicial review. [n1]  Therefore, I respectfully dissent.

      The Judge found that the information requested by the Charging Party was reasonably available within the meaning of section 7114(b)(4) of the Statute. In doing so, he relied on Authority precedent holding that information is reasonably available unless it is available only through extreme or excessive means. The Judge specifically cited Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697 (1991). However, as the majority notes, that case was reversed, and that standard was held to be "off the mark" because it "practically ignores the `reasonableness' quotient that the [S]tatute requires[,]" in Department of Justice v. FLRA, 991 F.2d 285, 291 (5th Cir. 1993) (DOJ v. FLRA). In so holding, the court specifically found that our interpretation of the Statute was "contrary to Congress's stated goal of promoting efficient government." Id.

      The majority acknowledges that since DOJ v. FLRA, the Authority has not revisited its standard for determining whether data requested u