51:0170(19)CA - - Hunter Holmes McGuire VA Medical Center, Richmond, Virginia and AFGE, Local 2145 - - 1995 FLRAdec CA - - v51 p170

Other Files: 

[ v51 p170 ]
The decision of the Authority follows:

51 FLRA No. 19











(Charging Party/Union)




September 19, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority on the Respondent's exceptions to the attached decision of the Administrative Law Judge. No opposition to the exceptions was filed.(1)

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with the Office of Personnel Management (OPM) rating appearing on a selectee's SF 171 form requested pursuant to section 7114(b)(4) of the Statute. The Judge concluded that disclosure of the requested information was not prohibited by the Privacy Act, 5 U.S.C. § 552a, and ordered the Respondent to furnish the requested information. Upon consideration of the Judge's decision, we hold that the Judge erred in concluding that disclosure of the requested information did not violate the Privacy Act. Accordingly, we dismiss the complaint.

II. Judge's Decision

The facts are fully set forth in the Judge's decision and are briefly summarized here.

The Union is the exclusive representative of a unit of Respondents' employees. Unit employees Larry Garnett and Elmo Scott applied for a vacant Maintenance Mechanic, grade WG-9 position. Although three employees, including Garnett and Scott, were found qualified for the position and certified to the selecting official for consideration, the Respondent did not select any of them. Instead, the Respondent posted another vacancy announcement for the same job, restricting eligibility to employees who either were working, or had worked, for the Federal Government at a grade WG-9 level or higher. Garnett and Scott were not eligible to apply for the position under the second announcement. The Respondent selected a candidate from outside the Veterans Administration to fill the position.

Garnett and Scott filed grievances over their non-selection.(2) The Union requested that the Respondent provide the Union with copies of SF-171 forms for "all qualified applicants." G.C. Exh. 6.(3) Initially, the Respondent denied the Union's request. However, after the Union filed an unfair labor practice charge based on the denial, the Respondent furnished SF-171 forms which had been sanitized to delete, among other things, the OPM ratings assigned when the candidates originally were selected for Federal employment.(4) In response to the Union's further request, the Respondent provided Garnett's OPM rating, but refused to furnish the selectee's rating on the ground, among others, that its release would violate the Privacy Act, 5 U.S.C. § 552a.(5)

As relevant here, the Judge concluded that the invasion of the selectee's privacy which would result from disclosure of the OPM rating would be limited because the record contained no indication that the rating would be used for anything other than evaluating and processing the grievances on selection. The Judge identified the public interest that would be served by disclosure as "the public interest inherent in the Union's discharge of its obligations under the Statute . . . ." Judge's Decision at 7 (citing U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164, 166-68 (1991), rev'd sub nom., U.S. Department of Health and Human Services v. FLRA, No. 92-1012 (D.C. Cir. 1992)). Balancing the public and privacy interests, the Judge concluded that disclosure of the selectee's OPM rating was not prohibited by the Privacy Act and, as the Judge found that all the other requirements of section 7114(b)(4) of the Statute had been satisfied, he concluded further that the Respondent's failure to furnish the requested information violated section 7116(a)(1), (5) and (8) of the Statute.

III. Positions of the Parties

A. Respondent

The Agency argues that the strong privacy interest in the selectee's OPM rating outweighs the Union's "negligible" interest in disclosure. Agency's Supplemental Brief at 13. The Agency contends that the public interest in disclosure is "negligible" because the OPM rating was not used in the disputed selection and, as a result, disclosure of the rating would not shed light on the Agency's performance of its statutory duties or otherwise inform citizens about the Government's operations. The Respondent claims, in this regard, that, contrary to testimony of the Union's Executive Vice President, the Union did not need the rating to determine whether the Respondent had violated Article 34, Section 13B of the bargaining agreement.(6) According to the Respondent, that provision encompasses ratings provided by a rating and ranking panel--not OPM--and in any event did not apply in this case because there were fewer than five candidates for the disputed position.(7)

B. General Counsel

The General Counsel argues that the selectee has little or no privacy interest in his OPM rating. The General Counsel also argues that disclosure of the rating would permit the public to ascertain whether "merit principles are being adhered to by Federal agencies in filling vacancies." General Counsel's Supplemental Brief at 2. According to the General Counsel, the public interest that would be served by disclosure outweighs the privacy interest that would be implicated thereby.

C. Union

The Union asserts that in this case "the relevant public interest supporting disclosure . . . is great, and would reveal much about what this government is up to, including whether or not favoritism in hiring and prohibited personnel practices are taking place." Union's Supplemental Brief at 5. The Union claims that this public interest outweighs the selectee's privacy interest in the OPM rating which, according to the Union, is "only theoretically unwarranted" if it is stigmatizing. Id. at 4.

IV. Analysis and Conclusions

In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338 (1995) (FAA), which involved the disclosure of performance appraisals of bargaining unit employees, the Authority set forth the analytical approach it will follow in assessing an agency's claims that disclosure of information requested under section 7114(b)(4) of the Statute would constitute a clearly unwarranted invasion of personal privacy within the meaning of the Freedom of Information Act (FOIA) Exemption 6, 5 U.S.C. § 552(b)(6), and therefore is prohibited by the Privacy Act. An agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the information is contained in a "system of records" within the meaning of the Privacy Act(8); (2) that disclosure would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. Id. at 345. 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 will serve the public interest. Id. (9) Although the parties bear the burdens set forth above, we will, where appropriate, consider matters that are otherwise apparent.

We held in FAA, for reasons fully explained there, that the only relevant public interest to be considered in this context is the extent to which the requested disclosure would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to the activities of the Government. Id. at 347-48. More particularly, we held that the public interest in collective bargaining that is embodied in the Statute, or specific to a union in fulfilling its obligations under the Statute, will no longer be considered in our analysis under Exemption 6 of the FOIA. Id.

Once the respective interests have been articulated, we will balance the privacy interests of employees against the public interest in disclosure. Id. at 346. If the privacy interests outweigh the pubic interest, we will find that disclosure of the information would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 of the FOIA and, therefore, that disclosure is "prohibited by law" within the meaning of section 7114(b)(4) of the Statute. Id. On the other hand, if the public interest outweighs the privacy interests, we will conclude that disclosure would be required by the FOIA and, therefore, is not prohibited by the Privacy Act under section 7114(b)(4). Id.

Applying this analytical framework to the case before us, we find that disclosure of the requested information would implicate privacy interests. The applicable regulations concerning OPM ratings indicate that the rating is a numeric composite of the applicants' experience and test scores, designed to measure the applicants' eligibility for Federal employment. These regulations provide that OPM "shall prescribe the relative weights to be given subjects in an examination, and shall assign numerical ratings on a scale of 100." 5 C.F.R. § 337.101. The regulation further provides that for applicants who pass the entrance examination, OPM shall add points for veterans' experience and other "valuable experience," including that gained in religious, civic, welfare, service and organizational activities. Id.

Depending on whether the selectee claimed any veteran's preference or other experience, the OPM rating may reveal the selectee's score on the applicable entrance examination. In such a case, the OPM rating, like unsanitized performance appraisals, would reveal information that is sensitive to the selectee and which the selectee may wish to keep confidential. Courts and the Authority have recognized a significant privacy interest in unsanitized performance appraisals requested under FOIA, due to the sensitive and personal nature of the information which would be revealed by such disclosure. See, e.g., Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984); Columbia Packing Co. v. United States Department of Agriculture, 563 F.2d 495, 498 (1st Cir. 1977); Church of Scientology v. Internal Revenue Service, 816 F. Supp. 1138, 1154-56 (W.D. Tex. 1993); Gilbey v. Department of the Interior, 1990 WL 174889 (D.D.C. 1990); Celmins v. United States Department of the Treasury, Internal Revenue Service, 457 F. Supp. 13, 15 (D.D.C. 1977); U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479 (1995); FAA, 50 FLRA at 342-43. If the OPM rating contains additional points for experience as a veteran and in other relevant activities of the type applicants include on employment applications, then, through a mathematical process, disclosure of the rating may also reveal other information which has been found to implicate privacy interests. See Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984) (Core) (disclosure of information concerning selectees' prior employment, special assignments, membership in professional or civic organizations, awards and honors slightly infringes selectees' privacy). However, as the OPM rating synthesizes this information into a number, any such information disclosed by the rating would result in a less significant infringement than would result from direct disclosure of the underlying information.(10)

With regard to the public interest, courts and the Authority have recognized that the public is served if the agency carries out its personnel functions fairly, equitably, and in accordance with laws, rules and regulations.(11) See Federal Labor Relations Authority v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1060 (D.C. Cir. 1992); Core, 730 F.2d at 948; FAA, 50 FLRA at 347. However, the General Counsel has not established how disclosure of this selectee's rating would in any way serve this interest. The OPM rating at issue in this case reveals little, if any, information regarding the Respondent's administration of its personnel functions. Because the rating is several years old, it could only reveal information regarding the selectee's competence at a much earlier time. Moreover, the selectee's OPM rating provides little, if any, information regarding whether he was selected over more qualified applicants because the selectee was the only applicant under the vacancy announcement from which he was selected and because, even if the two announcements were combined, only one other applicant had an OPM rating. See n. 5, supra.

Based on the foregoing, we conclude that the FOIA-related public interest in disclosure of the selectee's OPM rating is so insubstantial--indeed "virtually nonexistent"--that even a slight privacy interest would be sufficient to outweigh it. Department of Defense, 114 S. Ct. at 1015. Accordingly, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6.

As no other exceptions to the Privacy Act are alleged to apply to this case, we find that disclosure of the requested information is prohibited by law. Therefore, the Respondent is not obligated to provide the Union with the requested information under section 7114(b)(4) of the Statute and its failure to do so is not a violation of the Statute.

V. Order

The complaint is dismissed.

NOTE: The ALJ decision that was appended to the above Authority decision is not available in electronic format.

(If blank, the decision does not have footnotes.)

1. The parties were provided an opportunity to submit supplemental briefs addressing the Supreme Court's decision in United States Department of Defense v. FLRA, 114 S. Ct. 1006 (1994) (Department of Defense). The Respondent, Union, and General Counsel filed briefs on this issue.

2. Ultimately, arbitration was invoked in these grievances. The arbitrator granted the union's request that the arbitration proceedings be held in abeyance pending resolution of the unfair labor practice complaint in this case.

3. Based on the record as a whole, we construe the Union's request as encompassing all qualified applicants under either of the vacancy announcements.

4. Based on the record as a whole, we conclude that the "OPM ratings" involved in this case are those encompassed by 5 C.F.R. §§ 332.401 and 337.101, which provide, in relevant part:

§ 332.401 Order on registers.

Subject to apportionment, residence, and other requirements of law and this chapter, OPM shall enter the names of eligibles on the appropriate register in accordance with their numerical ratings . . . .

§ 337.101 Rating applicants.

(a) OPM shall prescribe the relative weights to be given subjects in an examination, and shall assign numerical ratings on a scale of 100. Except as provided in § 930.203(a) of this chapter, each applicant who meets the minimum requirements for entrance to an examination and is rated 70 or more in the examination is eligible for appointment.

(b) OPM shall add to the earned numerical ratings of applicants who make a passing grade:

(1) Five points for applicants who are preference eligibles under section 2108(3)(A) and (B) of title 5, United States Code; and

(2) Ten points for applicants who are preference eligibles under section 2108(3)(C)-(G) of that title.

(c) When experience is a factor in determining eligibility, OPM shall credit a preference eligible with:

(1) Time spent in the military service . . . .

(2) All valuable experience, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of whether pay was received therefor.

5. There is no dispute that, of the four candidates who applied under the two vacancy announcements, only Garnett and the selectee had OPM ratings. Therefore, the only rating not disclosed was that of the selectee.

6. Article 34, Section 13 of the parties' agreement provides, in pertinent part:

Section 13. Determining the Best Qualified List for Referral.

A. First Area of Promotion Consideration.

1. The evaluation panel will review the listing of ranked promotion candidates to determine whether a meaningful break is present. . . .

2. Promotion candidates above the break will be placed on the best qualified list for referral. . . .

B. In order to be referred, candidates who have to compete under the procedures of this Article and who are outside the facility shall have a rating equal to or better than the meaningful break or cutoff established by the promotion candidates within the first area of promotion consideration.

Respondent's Exh. A1 at 74-75.

7. The Respondent relies on Article 34, Section 10 of the parties' agreement, which provides, in pertinent part:

Section 10 - Evaluation (Rating & Ranking Panel)

A. When there are 5 . . . or fewer qualified promotion candidates, they will be referred in order of entry on duty date at the current VA facility to the selecting official for consideration without rating and ranking.

B. When there are six or more qualified promotion candidates in the first area of promotion consideration, a Panel shall be convened.

C. Promotion candidates from outside the first area of promotion consideration shall be rated by the Panel if the candidates from the first area were rated and ranked.

Respondent's Exh. A1 at 73.

8. The Respondent asserted to the Judge, and the General Counsel did not dispute, that OPM ratings, including the one in dispute in this case, are included in a system of records, within the meaning of the Privacy Act. Respondent's Post-Hearing Brief at 7. Accordingly, although the Judge made no finding on this point, we conclude that the requested information is contained in a system of records.

9. Of course, the General Counsel bears the overall burden of proving a violation of the Statute; as relevant here, the General Counsel must establish that all of the requirements of section 7114(b)(4) have been satisfied.