United States, Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Houston, Texas (Respondent) and American Federation of Government Employees, Local 1030, Council of Prison Locals, AFL-CIO (Charging Party/Union)

[ v60 p91 ]

60 FLRA No. 22

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL DETENTION CENTER
HOUSTON, TEXAS
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1030
COUNCIL OF PRISON LOCALS, AFL-CIO
(Charging Party/Union)

DA-CA-02-0242

DECISION AND ORDER

July 15, 2004

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

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the exceptions.

      The Judge found that the Respondent violated § 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing to provide information requested by the Union under § 7114(b)(4) of the Statute in connection with disciplinary actions against two employees. For the following reasons, we deny the Respondent's exceptions and adopt the Judge's findings, conclusions, and recommended order.

II.     Background and Judge's Decision

      The facts, set forth in detail in the Judge's decision, are summarized here.

      The Respondent imposed discipline on two correctional officers named Oglesbee and Brown. The Union requested, as relevant here, a copy of the Special Investigative Supervisor (SIS) Manual and copies of the investigative files pertaining to the two disciplinary actions in order to determine whether a grievance under the parties' collective bargaining agreement, or some other action, was warranted. [n1]  Specifically, the Union indicated that it needed the SIS Manual to determine whether: (1) the investigations underlying the disciplinary actions were conducted properly and in accordance with Respondent policies and procedures; and (2) all necessary evidence was gathered. [n2]  As to the investigative files, the Union stated that it needed that information to determine whether: (1) there was exculpatory evidence in the file that was not available to the correctional officers or the Union; and (2) all necessary evidence was gathered.

      The Respondent denied the Union's request. As to the SIS Manual, in particular, the Respondent explained that it denied the request because: (1) the Manual "is a restricted document critical to institution security[;]" and it is covered by a "law enforcement privilege." Judge's Decision at 4. The Respondent denied the request for the investigative files on the ground that they were "not part of the disciplinary record or disciplinary process." Id. at 5. In addition, the Respondent indicated that, "due to the sensitivity of the information" in the files, they were in the custody of the Respondent's Office of Internal Affairs and that the Union should obtain the files from that office through a Freedom of Information Act (FOIA) request. Id.

      The Judge found that the SIS Manual and investigative files were normally maintained by the Respondent in the regular course of business and reasonably available within the meaning of § 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute). [n3]  The Judge found that the Respondent did not deny the Union's request for the SIS Manual on the ground that it constituted guidance, advice, and counsel for management officials within the meaning of § 7114(b)(4)(B) of the Statute. [n4]  The Judge also found that the Union had established a particularized need for the SIS Manual. Specifically, she found that the Union had articulated, with specificity, the reasons why it needed the information, including the uses to which it would put the information, and the connection between [ v60 p92 ] those uses and its representational responsibilities under the Statute. The Judge rejected the Respondent's assertion of a law enforcement privilege with respect to the information for the reasons set forth in the Authority's decision in United States Dep't of Justice, Federal Bu. of Prisons, Federal Correctional Institution, Forrest City, Ark., 57 FLRA 808 (2002) (FCI, Forrest City). The Judge concluded that, as the Union had established a particularized need for the SIS Manual, the Respondent's failure to furnish that information violated § 7116(a)(1), (5), and (8) of the Statute.

      With respect to the investigative files, the Judge found, citing FCI, Forrest City, that such files do not constitute guidance, advice, and counsel within the meaning of § 7114(b)(4)(B). [n5]  The Judge summarized the Union's reasons for requesting the investigative files pertaining to Oglesbee and Brown, citing the Union's explanation that it needed the information to determine: (1) if there was exculpatory evidence in the files that was not made available to the correctional officers or the Union; (2) whether all the evidence had been gathered; (3) the evidence that was available to the Warden before he imposed discipline on the officers; (4) whether the officers and the Union had been given the opportunity to present a complete defense before the decision was made; and (5) whether there were factors considered in the decision of which the officers and the Union were not aware. The Judge found that the reasons articulated by the Union established a particularized need for the requested investigatory files.

      The Judge also found that disclosure of the investigatory files was not barred by the Privacy Act, 5 U.S.C. § 552a. Specifically, the Judge ruled that "the Privacy Act does not preclude release of information concerning an employee when the information is sought by a union as the employee's representative." Judge's Decision at 16 (citing FEMTC, 38 FLRA 1410, 1423-24 (1991) (FEMTC)). The Judge also noted that the Respondent provided no evidence as to any other employees' privacy interests that would be affected by disclosure of the files.

      Accordingly, because the Union had established a particularized need for the SIS Manual and the investigatory files, and the Respondent had demonstrated no ground for precluding disclosure, the Judge found that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with the requested information and issued an appropriate order.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent notes that, under Authority precedent, the "strength" of a union's particularized need for requested information depends on the "intensity" of an agency's countervailing interests. Exceptions at 4 (citing NLRB v. FLRA, 952 F.2d 523, 531 (D.C. Cir. 1992). In this regard, the Respondent contends that it established that the SIS Manual is a document that is critical to the security of the institution. According to the Respondent, disclosure of the Manual would result in greater awareness of the investigative techniques prescribed and, as a result, would aid persons who are the subject of investigation in circumventing those techniques. The Respondent asserts that the Authority has a long-standing practice of deferring to prison administrators in connection with security concerns. The Respondent maintains that the Authority has recognized that "possible misuse of information and disclosure at an inopportune time are valid anti-disclosure interests." Exceptions at 5. The Respondent argues that an effective and efficient Government is not well-served by "risking disclosure of [its] `playbook' for doing investigations to those who might seek to evade them." Id. at 6.

      The Respondent contends that disclosure of the investigative files would constitute a clearly unwarranted invasion of privacy with respect to Oglesbee and Brown because it would reveal potentially embarrassing or stigmatizing information concerning those correctional officers. The Respondent recognizes that the Authority has held that access by a union to an employee's records would not be a clearly unwarranted invasion of personal privacy where the employee has designated the union as his or her representative. The Respondent contends, however, that the Authority no longer follows that holding. According to the Respondent, the Authority has stated that "an agency may properly decline to provide requested information regarding an employee, notwithstanding [the employee's] designation of the union as representative, where no specific consent to disclosure of the information accompanied the designation." Id. at 8 (citing United States Dep't of the Air Force, 56th Support Group, MacDill AFB, Fla., 51 FLRA 1144, 1150 (1996) (MacDill AFB)). The Respondent asserts that the record only contains the Union's statement that it represented the correctional officers and not "specific consents by them to disclosure of the relevant information." Exceptions at 8. The [ v60 p93 ] Respondent maintains that, therefore, disclosure of the investigative files is barred by the Privacy Act. [n6] 

B.     General Counsel's Opposition

      The GC states that, under well-settled Authority precedent, agencies are responsible for raising, at or near the time of a union's information request, any countervailing anti-disclosure interests. According to the GC, in denying the Union's request for the SIS Manual, the only anti-disclosure interest the Respondent asserted was the law enforcement privilege. Because the security concern articulated by the Respondent in its exceptions was not timely raised as a countervailing interest, the GC contends that it is not properly before the Authority. In the alternative, the GC contends that the Respondent has not substantiated its defense. In particular, the GC notes that the Respondent's witness who testified concerning the SIS Manual "did not identify any particular section of Chapter 9 that contains secret or specialized security information that should not be turned over to the Union." Opposition at 8.

      The GC contends that, based on her in camera review of the investigative files and the fact that the correctional officers designated the Union to represent them, the Judge found that release of those files would not constitute a clearly unwarranted invasion of the officers' privacy. Moreover, the GC argues that the Respondent "fails to identify how the release of any specific document from the investigative files would run afoul of the Privacy Act." Id. at 9 (emphasis in original). Specifically, the GC argues that the Respondent "has made no showing that disclosure of evidence from the file[s] would implicate employee privacy interests and the nature and significance of those interests." Id. at 10. The GC notes that the Judge found, and the Respondent does not dispute, that the correctional officers sought representation by the Union. The GC also notes that the officers provided the Union with copies of their discipline and argues that "the Privacy Act is not violated when the agency discloses information to a party who is already aware of the information." Id. at 11. The GC indicates that the Respondent does not object to the disclosure of the disciplinary files, which contains much of the same information that is in the investigatory files. Finally, the GC distinguishes MacDill AFB on the ground that the employee in that case, unlike the correctional officers in this case, had not sought union representation.

IV.     Analysis and Conclusions

      Under § 7114(b)(4)(B) of the Statute, an agency must furnish information to a union, upon request, and "to the extent not prohibited by law," if, as relevant here, the information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]"

A.     Countervailing Interest

      To demonstrate that information is "necessary" a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information[,] and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Washington, D.C. and IRS, Kansas City Service Center, Kansas City, Mo., 50 FLRA 661, 669 (1995) (footnote omitted). In addition, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. See also Health Care Financing Admin., 56 FLRA 156, 159 (2000). Such interests must be raised at or near the time of the union's request. See IRS, Austin Dist. Off., Austin, Tex., 51 FLRA 1166, 1180 n.14 (1996).

      The Judge found, and the Respondent does not dispute, that the Union established a particularized need for the SIS Manual. The Respondent contends that the Judge erred in failing to find that its countervailing interest in security outweighed the Union's particularized need for the SIS Manual.

      In its response to the Union's request, the Respondent noted a security concern related to the disclosure of the SIS Manual, but stated that concern in connection with its assertion of a law enforcement privilege. It did not, at that point, elaborate on its security concern by identifying the portions of the SIS Manual that would compromise prison security if it were released, or explain how disclosure of the information would, in [ v60 p94 ] fact, compromise security. The Respondent argued, at the hearing and in its brief to the Judge, that disclosure of the SIS Manual would allow persons subject to investigation to anticipate investigatory techniques and, as result, avoid them. The Judge examined the SIS Manual in camera and found nothing to warrant the Respondent's concerns.

      The Respondent's explanation of its countervailing security interest is general and conclusory. As such, even assuming that the claimed countervailing interest was raised in response to the Union's request for the SIS Manual, it is not sufficient to outweigh the Union's demonstration of a particularized need for the information. See Dep't of the Air Force, Scott AFB, Ill., 51 FLRA 675, 683-84 (1995) (speculation about possible outcomes falls short of establishing agency interests deserving of much weight). See also United States Postal Service, 305 NLRB 997, 997-98 (1991) (Board found claim of nondisclosure interest in use of force guidelines because disclosure would allow circumvention of guidelines was unconvincing and speculative).

      Accordingly, we deny the Respondent's exception.

B.     Privacy Act

      The Respondent contends that disclosure of the investigatory files is barred by the Privacy Act. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Therefore, if an employee has consented to the release of the requested information, the Privacy Act interposes no bar to that disclosure.

      There is no dispute that the correctional officers have not consented to the release of the files to the Union. Moreover, in MacDill AFB, the Authority held that an employee's designation of the union as his or her representative in connection with a particular matter is not sufficient to constitute consent by the employee to disclosure of information pertaining to that employee under 5 U.S.C. § 552a(a)(b). MacDill AFB, 51 FLRA at 1150. The holding in MacDill AFB is consistent with court precedent. See Abramsky v. United States Consumer Products Safety Comm., 478 F. Supp. 1040 (D.C. S.D. N.Y. 1979). See also Local 2047, AFGE v. Defense General Supply Center, 423 F. Supp. 481 (D.C. E.D. Va. 1976), aff'd 573 F.2d 184 (4th Cir. 1978).

      However, even in the absence of the correctional officers' consent, the investigatory file may still be disclosable if disclosure is not otherwise barred by the Privacy Act. See, e.g., Veterans Administration Medical Center, Jackson, Miss., 32 FLRA 133, 137-38 (1988) (Privacy Act prohibition of disclosure without consent not applicable if disclosure is required under FOIA). More particularly, if disclosure of the requested information would not result in a clearly unwarranted invasion of personal privacy, it is disclosable even in the absence of the consent of the person who is the subject of the information. In this connection, the Respondent claims that disclosure of the information in the investigatory files constitutes a clearly unwarranted invasion of personal privacy under the Privacy Act. An agency asserting that disclosure of particular information constitutes a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the Freedom of Information Act so as to be prohibited by the Privacy Act is required to demonstrate: (1) that the information sought is contained in a system of records within the meaning of the Privacy Act; (2) that disclosure would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. See, e.g., United States Dep't of Transportation, FAA, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (New York TRACON). If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest. See MacDill AFB, 51 FLRA at 1151 (citing New York TRACON, 50 FLRA at 345).

      There is no dispute that the investigatory files constitute "records" within a "system of records" under the Privacy Act. The question then becomes whether disclosure of the investigatory files is otherwise barred by the Privacy Act so as to be "prohibited by law" within the meaning of § 7114(b)(4) of the Statute. More particularly, it is necessary to examine, under the Authority's framework for analyzing Privacy Act claims, whether the Respondent has demonstrated that disclosure of the investigatory files would implicate employee privacy interests and the nature and significance of those interests.

      Relying on FEMTC, the Judge ruled that disclosure of the investigatory files to the Union, as the designated representative of the employees, would not constitute a clearly unwarranted invasion of the employees' personal privacy. In MacDill AFB, however, the Authority held that the status of the union as an employee's representative does not lessen the employees' [ v60 p95 ] privacy interests in personal information. The Authority expressly stated in MacDill AFB that it would no longer follow FEMTC to the extent that it rests on unions having a special status because of their relationship to the individuals about whom such information is sought. MacDill AFB, 51 FLRA at 1153. Consequently, the Judge erred in finding that, given the Union's status as the correctional officers' designated representative, the disclosure of the investigatory files did not constitute a clearly unwarranted invasion of personal privacy within the meaning of the Privacy Act.

      The question then becomes, applying the framework established in New York TRACON, whether the Respondent has met its burden of demonstrating that the correctional officers' privacy interests would be affected by the disclosure of the investigatory files. We note initially that, in denying the Union's request for those files, the Respondent made no reference to any employee privacy interests that would be implicated, despite the Union's articulation in its request of the public interest that would be served by disclosure of the information. See Joint Exhibit (Jt. Ex.) 6. Moreover, in presenting its case to the Judge, the Respondent asserted no privacy interests on the part of any employees in arguing that the investigatory files were not disclosable, even though it noted that the Union's request did not specify that the files be sanitized. Transcript (Tr.) at 33. The Respondent also consistently noted to the Judge the "sensitivity" of the information contained in the files, see Tr. at 28 and 57, but made no attempt to articulate the nature of that "sensitivity." Only in its brief to the Judge did the Respondent raise concerns about the correctional officers' privacy interests in their disciplinary records. As noted above, the Authority has refused to consider legal arguments raised for the first time in a brief to a judge. See PBGC, 59 FLRA at 52.

      Further, at the time that the Respondent refused to disclose the investigatory file, it advised that the disciplinary files are available to the employees or their representative at any stage of the disciplinary process. Judge's Decision at 5. The Respondent does not claim that the disclosure of the investigatory file would reveal the employees' private matters that are not already available to the Union through this disclosure. In this regard, an in camera examination of the investigatory file and the disciplinary files, which were made a part of the record for inspection by the Judge and Authority, indicates that the investigatory file does not contain information concerning the private matters of the employees other than those private matters in the disciplinary files. See generally United States Dep't of Commerce, Bureau of the Census, 24 FLRA 630, 632 (1986) (reviewing documents provided to a judge and the Authority in camera), petition for review dismissed sub nom., Hanlon v. United States FLRA, 859 F.2d 971 (D.C. Cir. 1988).

      In these circumstances, the Respondent has failed to sustain its burden under New York TRACON to establish that disclosure of the investigatory file would implicate the correctional officers' privacy interests. As such, this case is distinguishable from MacDill AFB, where the Authority agreed with the Respondent that there were substantial privacy interests in the disputed data. See MacDill AFB, 51 FLRA at 1152. Consequently, while the Judge's decision misconstrues the law with respect to the effect of an employee's designation of a union as a representative on an employee's privacy interests under the Privacy Act, we deny the Respondent's exception and sustain the Judge's order requiring the Respondent to provide those files to the Union.

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Statute, the United States Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Houston, Texas, shall:

      1.      Cease and desist from:

           (a) Failing and refusing to furnish, as requested by the American Federation of Government Employees, Local 1030, Council of Prison Locals, AFL-CIO: (1) Chapter 9 of the SIS Manual; and (2) the complete investigative files on Oglesbee and Brown.

           (b) In any like or related manner, interfering with, restraining, or coercing unit employees in the exercise of their rights assured by the Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)      Furnish to the American Federation of Government Employees, Local 1030, Council of Prison Locals, AFL-CIO the exclusive representative of certain of its employees, Chapter 9 of the SIS Manual and the complete investigative files on Ogelsbee and Brown.

           (b)      Post at its facilities in Houston, Texas, where bargaining unit employees represented by the American Federation of Government Employees, Local 1030, Council of Prison Locals, AFL-CIO are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden, and [ v60 p96 ] shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY THE ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Houston, Texas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to furnish, as requested by the American Federation of Government Employees, Local 1030, Council of Prison Locals, AFL-CIO: (1) Chapter 9 of the SIS Manual; and (2) the complete investigative files on Oglesbee and Brown.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Statute.

WE WILL furnish to the American Federation of Government Employees, Local 1030, AFL-CIO the exclusive representative of certain of our employees: (1) Chapter 9 of the SIS Manual; and (2) the complete investigative files on Ogelsbee and Brown.

 ___________________________________________________
                                                   (Activity)

Date: By ________________     _______________________
                                                            (Signature) (Title)

This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Chicago Regional Office, whose address is: 
55 West Monroe, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is: (312) 886- 3465.


File 1: Authority's Decision in 60 FLRA No. 22
File 2: ALJ's Decision


Footnote # 1 for 60 FLRA No. 22 - Authority's Decision

   The Judge specifically found, and there is no dispute, that only the SIS Manual and the investigative file are at issue in this case. Judge's Decision at 2, n.1.


Footnote # 2 for 60 FLRA No. 22 - Authority's Decision

   Although the Judge and the parties refer to the SIS Manual generally, the specific portion of the Manual at issue, Chapter 9, concerns internal investigation of alleged employee misconduct.


Footnote # 3 for 60 FLRA No. 22 - Authority's Decision

   The Respondent does not except to these findings of the Judge and they will not be further addressed herein.


Footnote # 4 for 60 FLRA No. 22 - Authority's Decision

   The Judge also stated that even if the SIS Manual constitute guidance, advice, or counsel under § 7114(b)(4)(B), such that the Respondent had a presumptive anti-disclosure interest in the document, she would find that the Union's demonstration of particularized need would outweigh the Respondent's interest. Judge's Decision at 9 n.4.


Footnote # 5 for 60 FLRA No. 22 - Authority's Decision

   The Judge also found, in the alternative, that even assuming the investigative files constituted guidance, advice, and counsel within the meaning of § 7114(b)(4)(B), the Union had established a particularized need for those files.


Footnote # 6 for 60 FLRA No. 22 - Authority's Decision

   The Respondent also notes that Article 17, Section b, of the parties' collective bargaining agreement requires written authorization by an employee as a condition precedent to the release of that employee's records and no such authorization was made by the employees in this case. The Respondent first referred to the requirement for written authorization set forth in Article 17, Section b, as a part of its argument in its brief to the Judge that the investigative files could not be rele