American Federation of Government Employees, Local 1592 (Union) and United States, Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah (Agency)

[ v58 p584 ]

58 FLRA No. 145

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1592
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
(Agency)

0-AR-3560

_____

DECISION

June 9, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Thomas L. Watkins filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The grievance alleged that the Agency violated the Privacy Act, 5 U.S.C. § 552a, by providing information related to the grievant's medical condition to the grievant's personal physician without his prior written consent. The Arbitrator found that the Agency's actions did not violate the Privacy Act. For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      Following an off-duty accident, the Agency's physician recommended that the grievant be medically disqualified from his position. After the grievant received additional treatment from his personal physician, the grievant presented the Agency's physician with a note from his personal physician indicating that he could return to duty without restriction. The Agency's physician then wrote a letter discussing the grievant's physical condition to the grievant's personal physician.

      The Union then filed a grievance, alleging that the Agency violated the Privacy Act, 5  U.S.C. § 552a, by disclosing the grievant's medical records without his prior written consent. [n2]  After the parties could not resolve the matter, they submitted it to arbitration.

      At the hearing, the Agency's physician testified that he informed the grievant of his intent to discuss the grievant's condition with his personal physician. The grievant testified that although he was uncertain whether the Agency's physician informed him of his intent to consult with his personal physician, he admitted that he would have granted a request from the Agency's physician to discuss his medical condition with his personal physician had he been asked. Award at 2.

      Before the Arbitrator, the Agency argued, for the first time, that the grievance was not arbitrable because violations of the Privacy Act can only be pursued in Federal court. The Arbitrator, however, determined that the parties' agreement precluded the Agency from raising its jurisdictional argument for the first time in front of the Arbitrator. Therefore, the Arbitrator assumed, but did not decide, that the matter was grievable.

      Turning to the merits of the grievance, the Arbitrator determined that the Agency did not violate the Privacy Act. He first found that the Privacy Act did not apply to the medical records at issue because the Privacy Act only prohibits the unauthorized disclosure of records related to an individual's "medical history," which the Arbitrator determined refers only to an employee's historical medical records that might adversely impact his or her employment prospects.

      Next, he determined that even if the medical records at issue fell within the definition of "medical history," 5 U.S.C. § 552a(b)(1) and (8) sanctioned the disclosure of the information contained within those records to the grievant's physician because the Agency's physician needed to know why the discrepancy existed between his assessment of the grievant's condition and the grievant's personal physician's assessment. [n3]  [ v58 p585 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to the Privacy Act. First, the Union argues that the grievant's medical records fall within the definition of "medical history." The Union asserts that, under 5 C.F.R. § 293.504, medical records of the nature at issue here are covered by the Act. [n4] 

      The Union next contends that 5 U.S.C. § 552a(b)(1) does not sanction the release of the medical records at issue as that provision permits the disclosure of information only to other officials of the Agency.

      The Union further asserts that 5 U.S.C. § 552a(b)(8) did not permit the release of the information because that exception applies only in an emergency situation where a delay in disclosure could harm an individual's health or safety.

      Although it was speculative and not a basis for the award, the Union also objects to the Arbitrator's comments regarding the applicability of the "routine use" exception since the Arbitrator indicates that communications and disclosures between doctors would constitute routine use under 5 U.S.C. § 552a(b)(3). The Union contends that such an interpretation is overly broad and inconsistent with that Privacy Act exception.

      Finally, the Union claims that even though the Arbitrator found that the grievant would have given his written consent if asked and that the Agency's physician had valid reasons for disclosing the relevant information to the grievant's physician, such good faith beliefs did not allow the Agency to release the information. In support, the Union cites Swenson v. United States Postal Serv., 890 F.2d 1075 (9th Cir. 1989) (Swenson).

B.     Agency's Opposition

      The Agency contends that its actions did not violate the Privacy Act as the grievant was given notice of the need for disclosure and either did not object to that disclosure or would not have objected to that disclosure. The Agency claims that the form of that consent is irrelevant.

      The Agency next disputes the Union's argument that current medical records are encompassed within the definition of "medical history." The Agency argues that the term "medical history" was precisely selected by Congress to refer only to past records. The Agency also disputes the Union's claim that the routine use exception is inapplicable here.

IV.     Analysis and Conclusions

      The Union's exceptions challenge the award's consistency with law. The Authority reviews questions of law raised by the exceptions and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      To maintain a suit for an unauthorized disclosure of information under 5 U.S.C. § 552a(g)(1)(D), a claimant must prove the following four elements: (1) the information is covered by the Privacy Act as a "record" contained in a "system of records"; (2) the agency "disclose[d]" the information; (3) the disclosure had an "adverse effect" on the claimant; and (4) the disclosure was "willful or intentional." Quinn v. Stone, 978 F.2d 26, 131 (3rd Cir. 1992). The "adverse effect" requirement is, in effect, a standing requirement. Id. at 135.

      The Agency argues that the exceptions must be denied because the grievant testified that he would have given his consent if asked. We construe this as an argument that the disclosure had no adverse effect on the grievant. The Union has neither alleged nor demonstrated that the release of the information had an adverse effect on the grievant. In these circumstances and in light of such an admission, we conclude that the Union has failed to establish that the Agency violated the Privacy Act. [n5] 

      [ v58 p586 ] In light of our finding that the Union has not established a violation of the Privacy Act in the absence of any adverse impact on the grievant, we need not consider any of the Union's other exceptions. [n6] 

V.      Decision

      We deny the Union's exceptions.


APPENDIX

5 U.S.C. § 552a provides, in pertinent part:

(a) Definitions. -- For purposes of this section -

. . . .

(4) the term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

(5) the term "system of records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;

. . . .

(7) the term "routine use" means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;

. . . .

(b) Conditions of disclosure. -- No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would
be --

(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties[.]

. . . .

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;

. . . .

(8) to a person pursuant to a showing or compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

. . . .

(g)(1) Civil remedies. -- Whenever any agency . . . 

(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.


Concurring Opinion of Chairman Cabaniss:

I agree with the majority that the grievant has failed to present a cognizable claim. However, I reach that conclusion for a different reason. For the reasons more fully explained in my dissent in AFGE, Local 987, 57 FLRA 551, 558 (2001), I believe that the Authority has no jurisdiction over alleged violations of the Privacy Act. In this regard, I note that a grievance may deal only with alleged violations of statutes or regulations that have been issued for the express purpose of affecting working conditions of employees. United States Customs Serv. v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994). The Privacy Act has a much broader scope than just regulating working conditions, covering the behavior of agencies as it relates to all individuals with whom it deals, a much broader category than employees. See 5 U.S.C. § 552a(a)(2). Therefore, I would find that the Authority has no jurisdiction over the present case and deny the exceptions.



Footnote # 1 for 58 FLRA No. 145 - Authority's Decision

   The concurring opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 145 - Authority's Decision

   Relevant sections of the Privacy Act are set forth in the Appendix.


Footnote # 3 for 58 FLRA No. 145 - Authority's Decision

   The Arbitrator further stated that "routine use" under 5 U.S.C. § 552a(b)(3) would also likely sanction the disclosure of the grievant's medical records without his prior written consent, although the matter was not "specifically determined" in the award. Award at 16.


Footnote # 4 for 58 FLRA No. 145 - Authority's Decision

   5 C.F.R. § 293.504(a) provides, in pertinent part:

All employee occupational medical records (which exclude employee assistance/counseling, patient, non-personal, and epidemiological records) whether they are maintained in an automated, microform, or paper mode, and wherever located in the agency, are part of the EMFS [Employee Medical File System]. The records maintained in the EMFS are part of a Governmentwide Privacy Act system of records established by the Office. . . .

Footnote # 5 for 58 FLRA No. 145 - Authority's Decision

   Swenson does not compel a different result. See Swenson, 840 F.2d at 1077. In this regard, our decision is consistent with that court's holding that the plaintiff did not fail to state a claim under the Privacy Act where she alleged, as relevant he