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 ] let alone an interest sufficient to outweigh the Charging Party's undisputed interest in disclosure.
I would also find that the Judge erred in concluding that disclosure of the MEO is "prohibited by law." I note that, in making this determination, the Authority requires agencies to demonstrate a specific prohibition on disclosure, and has not permitted an agency to withhold information based on general statements concerning information sensitivity. See DOD, Fort Knox, 43 FLRA at 494 (regulation providing information "normally not releasable" insufficient to prohibit disclosure).
Neither of the two portions of Circular A-76 relied on by the majority address -- or prohibit -- disclosure of the MEO to the Charging Party. The first merely describes the MEO as a "procurement sensitive document." Circular A-76, Supp. Hand. Pt. 1, Ch. 3 F.1. The second provides that the MEO must be delivered to the contracting officer as a "sealed" document and not opened until bids are opened. As the Respondent's witnesses explained, the sealing of the MEO is part of a "fire wall" ensuring that officials who prepare the government's in-house bid do not have "unfair advantage or access to a contractor's proposal." Tr. at 89. However, the sealing of the MEO does not prevent individuals who are not part of the bid evaluation process from obtaining a copy of it. Indeed, seven agency officials were provided the MEO in this case during the time that it was sealed. Tr. at 165.
Further, Circular A-76 contemplates that union representatives will be integrally involved in the cost comparison process. Specifically, employee representatives are included in the definition of "[d]irectly affected parties" who must be given "the opportunity to fully participate in the development of supporting documents and proposals, including the development of . . . in-house and contract cost estimates." [n2] Cir. A-76 6(g); Supp. Pt. 1, Ch. 1 G.a. Consistent with this, the Respondent's Commercial Activities Program manager testified that he interacted "frequently" with officials of the Charging Party, who were "kept . . . very well informed about . . . cost factors, anything." Tr. at 167-8. He included the Charging Party's officials in regular teleconferences and on a distribution list of "[a]ny note [he] got from headquarters about A-76," he provided them with changes in performance documents, and he met with them. Id.
Neither of the remaining two provisions relied on by the Judge prohibit disclosure of the MEO. Assuming without deciding that AR 5-20 has the force and effect of law, it relates only to the release of information under the Freedom of Information Act (FOIA). AR 5-20 4-6(b). While the FOIA permits agencies to withhold certain documents, it does not prohibit the disclosure of anything. See, e.g., U.S. Customs Serv., Region IV, Miami, Fl., 48 FLRA 1239 1242 (1993). The other provision relied on by the Judge, 41 U.S.C. 423, nowhere limits disclosure of information to a union official; in fact, it permits disclosure to "any person" who is authorized "to receive that information." 41 U.S.C. 423(h)(1). [n3]
Based on the foregoing, I would find that the MEO is necessary, within the meaning of section 7114 of the Statute, and that disclosure of the MEO is not prohibited by law. Therefore, I would find that the Respondent violated sections 7116(a)(1), (5) and (8) when it refused to disclose the MEO.
Footnote # 1 for 57 FLRA No. 176 - Member Pope's Opinion
Agency officials are permitted to designate as "source selection information" any information the disclosure of which would "jeopardize the integrity or successful completion of the . . . procurement." 41 U.S.C. 423(f)(2)(J).
Footnote # 2 for 57 FLRA No. 176 - Me