File 2: Member Pope's Opinion

[ v57 p798 ]

Member Carol Waller Pope, dissenting in part:

      In determining whether requested information is "necessary," within the meaning of section 7114(b)(4) of the Statute, the union's need for the information is balanced against the agency's countervailing interests, if any, in refusing to disclose it. IRS, Kansas City, 50 FLRA at 669-71. In my view, the Respondent's countervailing interests in refusing to disclose the MEO at the time it was requested do not outweigh the Charging Party's undisputed need for it. Also in my view, the Judge erred in finding that disclosure of the MEO is "prohibited by law." As such, I would find that the Respondent violated the Statute by failing to provide the Charging Party with the MEO.

      The Judge found, based on credited testimony, that the Charging Party needed the MEO to monitor compliance with applicable regulations and the parties' collective bargaining agreement, as well as to ensure that employees were treated fairly in anticipation of a reduction-in-force potentially arising from the contracting-out study. Judge's Decision at 4, 8. The Agency has not excepted to these findings, and the majority does not question them.

      The Judge also found, and the majority agrees, that the Respondent's interest in protecting the MEO from disclosure to contractors outweighed the Charging Party's need for the information. On this point, I disagree. While the MEO is clearly sensitive and the Respondent has a strong interest in preventing its untimely disclosure to a contractor, this does not establish an interest in refusing disclosure to the Charging Party. Absent an indication that the Charging Party posed a threat of disclosure to a contractor, the Respondent's interest is speculative.

      In this regard, the Charging Party acknowledged both the need to protect the MEO from disclosure to contractors and the Respondent's ability to enforce this requirement. In particular, the Charging Party affirmed that the Respondent had no basis for concern "that the officers of NAGE, Local R4-11 would compromise the MEO or their positions with the federal government." G.C. Exh. 5. The Charging Party's concern that unauthorized disclosure could compromise employees' positions is legitimate. Employees who improperly disclose source selection information are subject to adverse personnel actions, as well as civil and criminal penalties. 41 U.S.C. 423(e)(1), (2), (3)(A)(iv). [n1] Thus, there is evidence that the Charging Party would keep the MEO confidential and no evidence to the contrary. In these circumstances, the Respondent has not established a countervailing interest in refusing to disclose the MEO, [ v57 p799