UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES BORDER PATROL, HARLINGEN, TEXAS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, LOCAL 1844
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES BORDER PATROL, HARLINGEN, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER
PATROL COUNCIL, LOCAL 1844
Case No. DA-CA-20684
Scott David Copper, Esquire
William Owen, Esquire
For the Respondent
Joseph T. Merli, Esquire
For the General Counsel
Mr. Dewell M. Richardson
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether
Respondent's refusal to furnish, ". . . all correspondence between
Mr. Ruiz, a supervisor, and the District Director. . . ."
concerning Mr. Ruiz' arrest and detention in Matamoros, Mexico, was
contrary to § 14(b)(4) and in violation of §§ 16(a)(1), (5) and (8)
of the Statute.
This case was initiated by a charge filed on March 25, 1992
(G.C. Exh. 1(a)). A Complaint and Notice of Hearing issued on June
30, 1992 (G.C. Exh. 1(c)) and an Amended Complaint and Notice of
Hearing issued on September 25, 1992 (G.C. Exh. 1(e)) which set the
hearing for a date, and at a place in Harlingen, Texas, to be
determined; however, the Notice Scheduling the Date of Hearing
(G.C. Exh. 1(a)), set the hearing for February 9, 1993, in McAllen,
Texas, not Harlingen, pursuant to which a hearing was duly held on
February 9, 1993, in McAllen, Texas, before the undersigned. All
parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the
issues involved, and were afforded the opportunity to present oral
argument which each party waived. At the conclusion of the hearing,
March 9, 1993, was fixed as the date for mailing post-hearing
briefs, which time was subsequently extended, for good cause shown,
to March 16, 1993. Respondent and General Counsel each timely
mailed a brief, received on, or before, March 17, 1993, which have
been carefully considered. Upon the basis of the entire
record(2) , I make the following
findings and conclusions:
Findings of Fact
1. The American Federation of Government Employees,
AFL-CIO, Immigration and Naturalization Service Council
(hereinafter, "AFGE") is the certified exclusive representative of
a nationwide consolidated unit of employees appropriate for
collective bargaining at the United States Immigration and
Naturalization Service including employees located at Harlingen,
Texas (G.C. Exhs. 1(e) and (g); 3, Art. 1).
2. Mr. Juan A. Garcia, a member of the bargaining unit
(Tr. 16), is employed by Respondent at its Port Isabel Service
Processing Center, Harlingen District, Los Fresnas, Texas, and
lives in adjacent government housing (Tr. 16).
3. At the time in question, Mr. Garcia, who works
rotating shifts, was assigned to the day shift - 8 a.m. to 4 p.m.
On December 23, 1991, when Mr. Garcia was awakened to go to work,
his wife told him that her nephew had brought his common-law wife
to their home at about 3 a.m. Although his wife told him that her
nephew had assured her that his common-law wife, Maria Guadalupe
Barajas-Enriquez, had documents, Mr. Garcia did not think she had
permission to be in the United States and, accordingly, told his
wife to get them back to Matamoros, a town in Mexico on the other
side of the Rio Grande river from Brownsville, Texas (Tr. 21, G.C.
Exhs. 2, 5). Mr. Garcia went to work without having seen Maria. Mr.
Garcia's wife did not comply with his instructions; at about 1:50
p.m. on December 23, 1991, Ms. Mattilde Reyes, Mr. Garcia's
sister-in-law, called Respondent and reported that an undocumented
alien was being housed in Mr. Garcia's residence, House No. 304.
Respondent sent personnel to Mr. Garcia's residence and found an
undocumented alien, Maria, on the premises. (G.C. Exh. 2).
4. By letter dated February 5, 1992, Respondent notified
Mr. Garcia that it proposed to suspend him for 30 days for,
". . . Failing to report the presence of an undocumented alien at your residence, and instructing your
wife to transport said alien to Brownsville is contrary to
the mission of this Service." (G.C. Exh. 2).
Although Mr. Garcia was charged with the specific offense of
"Failing to report the presence of an undocumented alien at your
residence. . . .", the offense was bottomed, as Respondent reminded
him, on that portion of the Officers' Handbook which provides, "Any
association, business, social or otherwise, which may obligate, or
appear to obligate, you to an alien in any way should be carefully
avoided. Such obligation can become a serious barrier to the proper
enforcement of the law and may bring criticism both to you and to
the Service." (G.C. Exh. 2). All employees are to follow the
guidelines of the Officers' Handbook (Tr. 43).
5. On February 22, 1992, Mr. Garcia designated Mr.
Dewell M. Richardson, Special Operations Inspector and President of
Local 1944 (Tr. 15), as his representative (G.C. Exh. 4,
Attachment) and Mr. Richardson, by letter also dated February 22,
1992 (G.C. Exh. 4), informed the District Director that he would be
representing Mr. Garcia; in the same letter he requested, ". . .
copies of all documents pertaining to the proposed action in order
to prepare a reply"; and advised the District Director that, "We
will reply both orally and in writing and also request an
appointment for that purpose." (G.C. Exh. 4).
6. Mr. Richardson submitted a statement on February 26,
1992 (G.C. Exh. 5) but did not raise the defense of disparate
treatment. By letter dated March 31, 1992, the District Director,
Mr. E.M. Trominski, found that disciplinary action invoked was
warranted but reduced the suspension from 30 days, as had been
proposed, to fourteen days (G.C. Exh. 6). By letter dated April 7,
1992, Mr. Richardson invoked arbitration (G.C. Exh. 7); and, by
letter also dated April 7, 1992, Mr. Garcia informed Respondent
that his representative in the upcoming arbitration hearing would
be: Ms. Mildred Williams (G.C. Exh. 7, Attachment).
7. In the meantime, by letter dated February 24, 1992,
Mr. Richardson had made the request for information involved
herein. He prefaced his request with the statement that, "It has
come to the attention of the Union that a possible disparity of
treatment has occurred between that proposed for a journeyman
officer, Juan Garcia . . ., in a situation with an alien and that
given to a supervisory officer, Celicio (sic) Ruiz . . ., for a
similar, if not more serious situation. In October 1990,
approximately, Mr. Ruiz was arrested in Matamoros,Tam, MX by
Mexican police while in association with possible known felons and
temporarily jailed." Mr. Richardson stated his request:
"In order to determine whether to include this
incident in an arbitration brief the union requests. . .:
"A. Any and all correspondence between Mr. Ruiz and the District Director and/or his agents
regarding this incident.
"B. Any record of counselling, either verbal or written,
that may exist.
"C. Any proposals for disciplinary action served on Mr. Ruiz and copies of documents imposing
actual punishment awarded to him if not included in Request
"D. Any record of corrective action ordered by the District Director to alleviate that incident and
prevent recurrence in the future by Mr. Ruiz, his subordinates, and all other employees in the
Harlingen District." (G.C. Exh. 8).
Mr. Richardson also stated that, "The union also needs the above
information in addition to the reason stated above in order to
include it in a more general study of disparity in treatment
between journeymen and supervisors(3). . . ." (G.C. Exh. 8).
8. By letter dated March 5, 1992, the Regional Director
denied Mr. Richardson's request of February 24, 1992. In denying
the information, the Regional Director stated, in part, as
"Mr. Ruiz is protected by the Privacy Act of 1974 [5 U.S.C. 552a]. Accordingly, your request is
being handled under the provisions of the Freedom of Information Act [FOIA], Title 5 United
States Code Section 552.
"We have identified seven (7) pages of material which relate to your request. I have reviewed these
documents and have determined that they are exempt from mandatory disclosure to you without the
consent of Mr. Ruiz. The seven pages . . . are being withheld in their entirety, in accordance with the
following provisions of the FOIA:
"(1) 5 U.S.C. 552(b)(5). . .
"(2) 5 U.S.C. 552(b)(6). . .
"(3) 5 U.S.C. 552(b)(7)(C). . .
"Additionally, the Office of Professional Responsibility conducted an inquiry into this matter; however,
my office was not provided copies of any records generated by that inquiry. To request copies of
those documents, you may write to . . . . [Office of the Inspector General, Washington, D.C.] (G.C.
9. Mr. Richardson testified that he first learned that
Mr. Ruiz was missing from Mr. Trominski, the District Director (Tr.
36), and thereafter rumors were rife concerning Mr. Ruiz' having
been arrested with a group of people in Cano's Bar (Tr. 36-40).
Upon Mr. Ruiz' release the story of his arrest and release from a
Matamoros jail was reported in the Valley Morning Star of
Wednesday, October 3, 1990, and in the San Antonio Express News for
October 3, 1990 (G.C. Exh. 12). The Morning Star, for example,
reported, in part, as follows:
"An Immigration and Naturalization Service official was released from a Matamoros jail
Tuesday morning following his arrest during a weekend drug
bust. . .
"INS detention and deportation director Cecilio Ruiz returned to the United States after
spending more than a day behind bars in a Matamoros jail. .
. . .
"Trominski emphasized that no charges were brought against Ruiz and said Mexican
authorities cleared the supervisor of any wrong-doing.
. . .
"He apparently was arrested with several others in the lounge of the Hotel Del Prado in
Matamoros late Sunday night. Some of the others were found to be in possession of cocaine,
according to reports.
. . .
"Trominski called the arrest an 'unfortunate incident,' but was unable to explain why Ruiz was
kept for over a day.
"'He just happened to be in the wrong place and (sic) the wrong times (sic),' Trominski said,
'Cecilio Ruiz was visiting with friends in a bar and a bust went down. He was among several people
arrested.'" (G.C. Exh. 12).
10. Mr. Trominski testified that there had been no
counselling, either oral or written, of Mr. Ruiz and, accordingly,
there was no record as requested in Request B (Tr. 116); and,
further, that there had been no proposal for disciplinary action
and no corrective action taken and, accordingly, there was no data
as requested in Requests C and D (Tr. 116-117, 118). Mr. Trominski
further testified that the seven pages he had indicated in his
letter of March 5, 1992, as related to Mr. Richardson's request
(G.C. Exh. 10), consisted of two documents: first, the three pages
of Mr. Ruiz' memorandum to the Regional Director, Mr. Trominski,
which he, Trominski, had orally requested (Tr. 136); and, second
Mr. Trominski's four page report to the Acting Regional
Commissioner, his immediate supervisor (Tr. 136-137). Mr. Trominski
stated that his four page report was not, strictly speaking, within
the purview of Mr. Richardson's request, (Tr. 117-118),
i.e. ". . . correspondence between Mr. Ruiz
and the District Director and/or his agents . . ." (G.C. Exh. 8,
Request A), and he included it only because he did not want to
subject the agency to "splitting hairs" (Tr. 127) and elected to
"err on the side of caution" (Tr. 137). Mr. Trominski testified
that Mr. Ruiz' statement concerned law enforcement relations
between Mexico and the United States (Tr. 141, 142, 143) and that
its disclosure could damage law enforcement efforts along the
border (Tr. 152, 156, 157, 160-161).
Mr. Trominski stated that Mr. Ruiz' statement contained ". .
. nothing . . . that discussed any hint of criminal misconduct upon
the part of Mr. Ruiz." (Tr. 123). Mr. Trominski further stated that
Mr. Ruiz' statement was not needed by the Union because, "There is
nothing in there that would assist them in the defense of any
bargaining unit employee in any sort of disciplinary action because
there was nothing in there to indicate that Mr. Ruiz had committed
any kind of an offense of any sort that would subject him to
disciplinary action." (Tr. 123-124). Further, in this regard, the
incident of Mr. Ruiz' arrest was investigated by the Immigration
and Naturalization Service and the Report of Special Agent Ernesto
Gonzalez, of the Border Patrol in McAllen, Texas (Tr. 120), dated
January 17, 1991 (Res. Exh. 1) concluded that: (a) Mr. Ruiz was not
a suspect and was not charged with any violation by the Mexican
Federal Judicial Police (MFJP), and (b) there was no evidence that
Mr. Ruiz was associating with known criminals. Thus, Mr. Gonzalez'
report(4) states, in part:
". . . Statements from the MFJP officials conclude that SUBJECT [Ruiz] was not a suspect in
their investigation and no charges were filed.
. . .
". . . there is no evidence that any of persons arrested
with SUBJECT are known criminals.
"No evidence or documentation was obtained that would substantiate the allegation that SUBJECT
was associating with known criminal elements." (Res. Exh. 1).
1. Data not necessary within the meaning
of § 14(b)(4)(B).
Wholly apart from the Privacy Act concerns which Respondent
has raised, i.e. to the extent not
prohibited by law, the Statute imposes, inter alia, the limitation that
such data be necessary, i.e., that data,
upon request, be furnished,
"(B) which is . . . necessary for full and proper discussion, understanding, and negotiation of
subjects within the scope of collective bargaining. . .
."(5) (§ 7114(b)(4)(B)).
Discipline of Mr. Garcia had been proposed for his admitted
failure to report the presence of an undocumented alien at his
home. As a defense, the Union wanted to explore the possibility of
disparity of treatment of a supervisor, Mr. Ruiz, following his
arrest in Mexico about a year earlier for which Mr. Ruiz received
no discipline, and the proposed discipline of Mr. Garcia. The
difficulty was that neither the newspaper accounts, nor the Union's
other sources of information (Tr. 78), had indicated any misconduct
on the part of Mr. Ruiz, although, certainly, his mere arrest and
detention for more than 24 hours had raised a question. But, the
VALLEY MORNING STAR had reported, ". . . that no charges were
brought against Ruiz . . . 'There are no allegations pending
against Cecilio Ruiz. The Commandante of the Federal Judicial
Police made it very clear they found him not be culpable of any
charges' . . . He apparently was arrested with several others in
the lounge of the Hotel Del Prado in Matamoros. . . ."; and the SAN
ANTONIO EXPRESS NEWS had reported, "A high-ranking U.S. immigration
officer was arrested in this border city after Mexican federal
police found cocaine on a man with him at a hotel bar. . .
'Basically, it appears that Ruiz was socializing with some friends
when the MFJP moved in with an investigation . . . One of his
acquaintances was in possession of a small amount of cocaine . . .
The police assured us that his name was cleared and that he had
absolutely nothing to do with the possession or use of cocaine'"
(G.C. Exh. 12).
In an effort to "bridge the gap", the Union requested, "Any
and all correspondence between Mr. Ruiz and the District Director .
. ." (G.C. Exh. 8). Mr. Ruiz had written a three page report of his
incarceration incommunicado to the District Director. General
Counsel concedes that the only "necessity" for Mr. Ruiz' report was
to determine, "whether there was evidence of misconduct." (General
Counsel's Brief, p. 9). Thus, General Counsel opines that there
might have been "an admission, or acknowledgement of misconduct"
(id); but there was none. District Director
Trominski, who I found to be a wholly credible witness, in answer
to my question, "Was there any statement in the written statement
by Mr. Ruiz concerning any wrong doing by him?", testified,
"THE WITNESS: None whatsoever. The only wrong thing he did was to be in the wrong place
at the wrong time.
"JUDGE DEVANEY: And he made no confession of dealing in any illicit activity?
"THE WITNESS: None whatsoever." (Tr. 166).
This was fully confirmed by Internal Affairs' (OIG) independent
investigation whose Report showed, inter
". . . Statements from the MFJP officials conclude that SUBJECT [Cecilio L. Ruiz, Jr.] was not a
suspect in their investigation and no charges were
"No clear reason was given as to why he was detained for that length of time, however, there is
speculation that it was due to the nature of the SUBJECT's employment. Several other speculations
could be made, to include that the harassment was planned, and that the cocaine found on one of the
others was planted. . .
". . . there is no evidence that any of the persons arrested
with SUBJECT are known criminals.
"No evidence or documentation was obtained that would substantiate the allegation that SUBJECT
was associating with known criminal elements." (Res. Exh.
The Union's request was specifically limited to ". . .
correspondence between Mr. Ruiz and the District Director" (G.C.
Exh. 8) and, accordingly, the Union did not ask for the District
Director's report to his superior. Indeed, General Counsel stated
at the hearing that, "And it sounds now like we are down to a
three-page memo that Ruiz wrote" (Tr. 159); but, in any event,
there was no showing whatever that the District Director's report
was "necessary" within the meaning of § 14(b)(4)(B) of the Statute.
Because the Union's request was not "necessary" within the meaning
of § 14(b)(4)(B) of the Statute, Respondent's refusal to furnish
the data was not contrary to § 14(b)(4) and did not violate §§
16(a)(1), (5) or (8).
2. Release of Mr. Ruiz' Statement
Prohibited by Law.
The Privacy Act( 5 U.S.C. § 552a)provides that,
"(b) CONDITIONS of DISCLOSURE - No agency shall disclose any record which is
contained in a system of records . . . 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 -
. . .
(2) required under section 552 of this
. . . . (5 U.S.C. § 552a(b)(2)).
The Freedom of Information Act (U.S.C. § 552) provides,
"(b) This section does not apply to
matters that are --
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency.
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly
unwarranted invasion of personal privacy.
(7) investigatory records complied for law enforcement purposes. . . ."
(5 U.S.C. § 552(b)(5),(6),(7)).
(a) Clearly unwarranted
invasion of personal privacy.
In United States Department of Defense v.
Federal Labor Relations Authority, No. 92-1223, __ U.S. __,
__S. Ct. __, 62 U.S.L.W. 4143, (hereinafter, "DoD"), the Supreme Court, on February 23, 1994, held
that the disclosure of the home addresses of federal civil service
employees by their employing agency pursuant to a request made by
the employee's collective-bargaining representative under the
Statute would constitute a "clearly unwarranted invasion" of the
employees' personal privacy within the meaning of the Freedom of
Information Act, 5 U.S.C. § 552. Although the precise data
requested in DoD (names and home addresses)
was different, the holding of the Court is fully applicable here.
In DoD, the Court rejected the contention
that in determining whether Exemption 6(6) applies to information requests under §
14(b)(4) of the Statute, the public interest in effective
collective bargaining must be weighted against the interest of the
employees' personal privacy. To the contrary, the Court held,
". . . We must weigh the privacy interest of bargaining unit employees in nondisclosure . . . against
the only relevant public interest in the FOIA balancing analysis - the extent to which disclosure of
the information sought would 'she[d] light on an agency's performance of its statutory duties' or
otherwise let citizens know 'what their government is up to.' Reporters Committee, supra, [489
U.S. 749 (1989)] at 773 (internal quotation marks omitted)."
(62 U.S.L.W. 4146).
The Court further stated that the Freedom of Information
". . .allows the disclosure of information necessary for effective collective bargaining only 'to the
extent not prohibited by law.' 5 U.S.C. §7114(b)(4). Disclosure . . . is prohibited by the Privacy
Act unless an exception to that Act applies. The terms of the Labor Statute in no way suggest that
the Privacy Act should be read in light of the purposes of the Labor Statute. . . . Therefore, because
all FOIA requestors have an equal, and equally qualified, right to information, the fact that
respondents are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA
analysis. . . ." (62 U.S.L.W. 4146).
Mr. Ruiz' statement concerning his arrest and detention in
Mexico would not contribute to public understanding of the
operations or activities of the United States government, which the
Court has noted is the core purpose of FOIA, Reporters Committee, supra, 489
U.S. at 775; DoD, supra, 62 U.S.L.W. at 4146, 4147. As the Court held in
"Because a very slight privacy interest would suffice to outweigh
the relevant public interest, we need not be exact in our
qualification of the privacy interest. It is enough . . . that the
employees' interest in nondisclosure is not insubtan- tial." (62
U.S.L.W. at 4147). Here, as in DoD,
supra, the FOIA-related public interest in
disclosure is virtually nonexistent, and Mr. Ruiz' interest in
nondisclosure clearly is not insubstantial. Accordingly, Mr. Ruiz'
statement is protected by the Privacy Act and its disclosure would
constitute a clearly unwarranted invasion of personal privacy.
(b) Prohibited by Exemption of
the Freedom of Information Act.
It is undisputed that the requested statement was contained
in a system of records, obtained for law enforcement purposes and
identifiable by Mr. Ruiz' name (Tr. 125). The Supreme Court stated
in Department of Justice v. Reporters
Committee, supra, that,
"Exemption 7(C)'s privacy language is broader than the comparable language in Exemption
6 in two respects. First, whereas Exemption 6 requires that the invasion of privacy be 'clearly
unwarranted,' the adverb 'clearly' is omitted from Exemption 7(C). This omission is the product of a
1974 amendment adopted in response to concerns expressed by the President [footnote omitted].
Second, whereas Exemption 6 refers to disclosures that 'would constitute' an invasion of privacy,
Exemption 7(C) encompasses any disclosure that 'could reasonably be expected to constitute' such
an invasion. This difference is also the product of a specific amendment [footnote omitted]. Thus, the
standard for evaluating a threatened invasion of privacy interests resulting from the disclosure of
records compiled for law-enforcement purposes is somewhat broader than the standard applicable
to personnel, medical, and similar files." (id., at 756).
Here, as in Reporters Committee,
supra, the potential disclosure of
information related to unsubstantiated charges. It is also beyond
question that Mr. Ruiz' statement contained no information as to
what the Government was up to. The Court in Reporters Committee, supra,
further stated that,
". . . when the information is in the Government's control as a compilation, rather than as a record
of 'what the Government is up to,' the privacy interest protected by Exemption 7(C) is in fact at its
apex while the FOIA-based public interest in disclosure is at its nadir . . . Accordingly, we hold as
a categorical matter that a third party's request for law-enforcement records or information about
a private citizen can reasonably be expected to invade that citizen's privacy, and that when the
request seeks no 'official information' about a Government agency, but merely records that the
Government happens to be storing, the invasion of privacy is
'unwarranted.' . . . ." (id., at 780).
Accordingly, release of Mr. Ruiz'