51:0276(28)CA - - Interior, Bureau of Mines, Pittsburgh Research Center and AFGE Local 1916 - - 1995 FLRAdec CA - - v51 p276
[ v51 p276 ]
The decision of the Authority follows:
51 FLRA No. 28
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF MINES
PITTSBURGH RESEARCH CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
September 30, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
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 filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.(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 furnish the Union with unsanitized copies of employees' Individual Performance Plans (IPPs) requested pursuant to section 7114(b)(4) of the Statute. The Judge concluded that the Respondent violated the Statute, as alleged, and ordered the Respondent to furnish the information in an unsanitized form, as requested.
For the reasons stated below, we find that the Respondent did not violate the Statute because disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a.(2) Therefore, we dismiss the complaint.
II. Judge's Decision
The facts are fully set forth in the attached decision of the Administrative Law Judge and will be repeated only to the extent relevant to our analysis. Similarly, the Judge's conclusions will be repeated only as necessary for our analysis.
The charges in this case arise from three separate requests by the American Federation of Government Employees, Local 1916, for IPPs of bargaining unit employees. According to the Judge, "[a]n IPP is a form maintained on bargaining unit employees" that contains an employee's final performance rating and supporting information.(3) Judge's Decision at 3. The Union first requested all completed IPPs, covering the years 1988 through 1990, for "all general workforce employees." Id. The Union explained that the information was needed so that the IPPs could be compared with those of employees dissatisfied with the resolution of their grievances under a settlement agreement.(4) The Respondent refused to furnish the IPPs, claiming that the Union's justification for requiring the data was inadequate.
In its second request, the Union sought all completed IPPs for the performance period ending in 1991 for employees in one particular segment of the Respondent's organization, stating that the information was required to process a grievance alleging disparate treatment in evaluating the grievant's performance. The Union stated that the information was needed to show that a grievant from that segment was treated differently from other employees in his organizational unit. The Respondent again denied the Union's request, asserting that the Union had not shown that the IPPs were relevant to the grievance.
Third, claiming that the Respondent, despite the settlement agreement, continued to use a quota system to allocate performance ratings, the Union requested the IPPs of all bargaining unit employees for the rating period ending in 1991. The Union maintained that it required the information to identify: how the appraisal process was manipulated; disparities in the application of performance standards; common performance characteristics that resulted in different ratings; and potential grievants. The Respondent rejected the request, asserting that the Union had not clearly explained why it required the IPPs and that affected employees' privacy interests in nondisclosure outweighed the Union's need for the information.
The Judge found that the information sought in all three instances was necessary for the Union to establish which employees were evaluated on similar work and whether employees performing comparable work were being evaluated in a like manner. He also determined that, contrary to the Respondent's argument, the parties' settlement agreement did not preclude the Union from asking for all relevant IPPs and did "not prevent the Respondent from furnishing performance appraisals which are relevant and necessary to resolve existing grievances." Id. at 7. Accordingly, he concluded that the unsanitized IPPs "should be supplied where there is no violation of any other law." Id.
The Judge further found that disclosure of the requested IPPs was not precluded by law. The Judge first concluded that disclosure of the IPPs is required by the Freedom of Information Act (FOIA), 5 U.S.C. § 552, because the "serious public interests" in fostering Federal sector collective bargaining that would be served by disclosure significantly outweighed "a minimal intrusion into the employees' privacy interests" that would result. Id. at 13. The Judge also concluded that the IPPs were disclosable under the routine use exception to the Privacy Act, 5 U.S.C. § 552a(b)(3). In this connection, the Judge noted that "the Respondent released the summary ratings to the Union under the 'routine use' exception." Id. at 15 n.7. Consequently, the Judge found that the Respondent's refusal to provide the Union with the requested information violated section 7116(a)(1), (5) and (8) of the Statute.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent claims that disclosure of the requested information is precluded by the Privacy Act. The Respondent asserts that the Judge erred in balancing the competing interests under Exemption 6 of the FOIA by weighing the Union's, rather than the public's, interest in disclosure. The Respondent maintains that employees' privacy interests in IPPs are substantial, while the public's interest in disclosure is minimal. The Respondent also contends that the Judge erred in his analysis under the routine use exception to the Privacy Act. In the Respondent's view, the Judge failed to correctly apply the particularized need test, as required by Federal Personnel Manual (FPM) Letter 711-164, in determining whether the IPPs may be disclosed to the Union as a routine use.
B. General Counsel's Opposition
The General Counsel contends that the Respondent failed to demonstrate that release of the IPPs would constitute a clearly unwarranted invasion of privacy. The General Counsel asserts that the Judge correctly identified the applicable public interest and balanced it against the minimal intrusion on employees' personal privacy when he concluded that disclosure was not inconsistent with Exemption 6 of the FOIA.
The General Counsel also asserts that the Judge correctly found that the information could be disclosed under the routine use exception to the Privacy Act. The General Counsel contends that the parties' settlement agreement, authorizing the Union to receive IPPs identified as relevant to the grievances concerning performance evaluations, supports the Judge's conclusion that the Union demonstrated a particularized need for the information. In support, the General Counsel cites National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part).
IV. Analysis and Conclusions
The sole question before us is whether disclosure of name-identified IPPs is prohibited by the Privacy Act.
A. FOIA Exemption 6
For the reasons that follow, we find that release of the unsanitized IPPs, containing performance ratings and supporting information, requested by the Union would constitute a clearly unwarranted invasion of personal privacy and, therefore, disclosure is not required under FOIA Exemption 6.
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, we set forth the analytical approach we will follow in assessing an agency's claim 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 Exemption 6 of the FOIA and, therefore, is prohibited by the Privacy Act. As we explained in FAA, an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the information requested is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest that is cognizable under the FOIA; and (2) demonstrate how such disclosure will serve that public interest. Although the parties bear these burdens, 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. 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.
Once the relevant interests are established, we will balance the privacy interests of employees against the public interest in disclosure. Where this balance leads us to conclude that the privacy interests are greater than the public interest at stake, we will find that the requested disclosure would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 and, therefore, that disclosure is "prohibited by law" under section 7114(b)(4) of the Statute; accordingly, the agency is not required to furnish the information, unless disclosure is permitted under another exception to the Privacy Act. In contrast, where the balance tips the other way, because the public interest is greater than the privacy interests, we will conclude that disclosure would be required under the FOIA and, therefore, is not prohibited by the Privacy Act.
In agreement with the Respondent, and for the reasons more fully discussed in FAA, we find that employees have substantial privacy interests in nondisclosure of name-identified IPPs, which, as set forth above, contain their performance ratings and documentation used in developing those ratings.(5) See, e.g., id. at 346-47. In particular, we note, as did the Authority in FAA, that "unsanitized performance appraisals reveal details of supervisory assessment of individual work performance and, as such, are likely to contain information that is highly sensitive to employees, which employees may wish to keep confidential." Id. at 347.
We also find, in agreement with the General Counsel, that the release of the requested information would shed light on Government operations and, therefore, would serve the public interest. In particular, disclosure of IPPs, whether name-identified or not, would permit review of the ways in which the Respondent administers its performance appraisal system and monitors the quality of the work products generated in fulfilling its statutory mission. See U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 393 (1995).
However, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be any better served by the disclosure of IPPs that include names and other identifiers. That is, although there is a public interest in the performance appraisal information contained in IPPs, such interest has not been identified in the names connected to those appraisals. See, for example, United States Air Force, Headquarters, 442nd Fighter Wing (AFRES), Richards-Gebaur Air Force Base, Missouri, 50 FLRA 455, 460-61 (1995), and cases cited there.
In this connection, disclosure of unsanitized information may well enhance the Union's ability to use the information to make determinations regarding, for example, potential grievances or the merits of grievances already filed. However, it is clear that these interests are specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6.(6) See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request"). See also United States Department of Defense v. FLRA, __ U.S. __, 114 S. Ct. 1006, 1014 (1994) ("[A]ll FOIA requestors have an equal, and equally qualified, right to information"). Moreover, although the public has an interest in "whether the Respondent granted promotion actions or awards to employees in a fair and evenhanded manner, and . . . the manner in which the Respondent administers its performance appraisal and award system[,]" the General Counsel has not shown how disclosure of unsanitized IPPs would enhance a member of the public's (as opposed to the Union's) ability to determine whether such programs are administered equitably. G.C.'s Brief at 5. Cf. Painting and Drywall Work Preservation Fund, Inc. v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (court found that the possibility that requested information "would facilitate investigation of government efforts to enforce" certain laws constituted a "limited public interest," which was outweighed by individuals' privacy interests in the records).
In this situation, we conclude that, on balance, the FOIA-related public interest served by disclosure is outweighed by the substantial invasion of employees' privacy that would result. Accordingly, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA.
B. Routine Use
The information requested in this case is contained in the OPM-GOVT 2 system of records. OPM's routine use statement governing that system of records, identified as routine use "e," provides that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation." 57 Fed. Reg. 35710 (August 10, 1992). Accordingly, to determine whether the routine use exception applies to the requested information, we must decide whether the requested information is "relevant and necessary," within the meaning of routine use "e."
OPM issued "guidance to agencies" for interpreting these terms in FPM Letter 711-164, which was published on September 17, 1992. When the FPM was abolished on December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24 (1995), we apply the FPM Letter's guidance in deciding this case.
The FPM Letter contains two requirements that a union must satisfy in order to establish that requested information is consistent with routine use "e": (1) the information must be "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information must be "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs. In clarifying this second requirement, the FPM Letter explains that it is to be determined on a case-by-case basis; the union "must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted."
In this case, we find that the Union has failed to demonstrate that the requested information is both "relevant and necessary" within the meaning of FPM Letter 711-164. Addressing first the standard of "relevance," and looking at the ordinary meaning of the terms "traceable," "logical," and "significant,"(7) we have examined the record to assess whether the Union has established that the nature of the information requested can reasonably be attributed to and is likely to influence or affect the purpose for which the information was sought. In this regard, the Union president testified that the Union expected to use the IPPs in two ways: to "compare the ratings given to employees with similar elements to see if they were given different ratings for similar work" and to "look at individual IPPs in isolation to see if the ratings were justified." Judge's Decision at 8 n.2. The testimony establishes that IPPs, in general, are "relevant." In particular, it appears that providing unsanitized IPPs would affect the Union's stated purpose of uncovering disparate treatment among employees resulting from application of the alleged quota system. It would also enable the Union to establish whether ratings were, in its view, justified.
Even if the requested information is "relevant" within the meaning of the FPM Letter, however, we are not persuaded that the record before us supports a finding that the unsanitized IPPs are "necessary" within the meaning of the FPM letter. Although the General Counsel maintains that the Union needs the requested information to determine whether the Respondent continues to use a quota system in allocating performance ratings, the Union has not established, and the record does not otherwise reflect, that this need cannot be satisfied through less intrusive means than by using name-identified IPPs. In this regard, the Union president testified that it would be necessary to contact some individual employees about facts not set forth in their IPPs. This testimony establishes that, in some circumstances, the Union would need name-identified IPPs to obtain information not readily apparent from the IPPs themselves. However, the testimony does not demonstrate that the Union needs names attached to all of the IPPs.
The Union made three separate requests for unsanitized IPPs in this case. These requests differed only in the rating periods covered and in the number of IPPs requested. These differences are not sufficient to support different conclusions as to the necessity under the FPM Letter of the requested name-identified documents, especially since no arguments are presented that distinguish one request from another. With regard to the Union's one request for IPPs executed during the period covered by the settlement agreement, we reach the same conclusion. Under that agreement, the Respondent undertook to provide the Union with access to employees' IPPs identified "as being relevant to any of the grievances pursued for the rating year 1988, 1989, and 1990." Judge's Decision at 3 (emphasis in original). While, as argued by the General Counsel, the agreement establishes the Union's need for certain IPPs, it does not expressly establish the Union's need for them in unsanitized form.
In sum, the Union has failed to establish that its information needs cannot be satisfied through less intrusive means than name-identified IPPs. An example of a less intrusive method that could serve the needs identified by the Union would be release of sanitized IPPs coded in a manner allowing later identification of specific individuals if the Union requested such identification and established a need therefor. Under this method, any requisite additional information could be obtained in a more targeted way. Furthermore, we note that the Respondent has previously released summary ratings to the Union under the routine use exception. There is nothing in the record to indicate that the Union could not use this information to satisfy its need to identify employees whom it would have to contact directly for additional information.
The Union has not established both the relevance and necessity of unsanitized copies of all the requested IPPs, as required by FPM Letter 711-164. Consequently, the information is not disclosable in the unsanitized form sought by the Union as a routine use under section 552a(b)(3) of the Privacy Act.
As disclosure of the unsanitized IPPs would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and release of the unsanitized information is not authorized as a routine use under section 552a(b)(3) of the Privacy Act, such disclosure is prohibited by law within the meaning of section 7114(b)(4) of the Statute. Accordingly, the Respondent's failure to provide the Union with the requested information did not violate section 7116(a)(1)(1), (5), and (8) of the Statute.(8)
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| U.S. DEPARTMENT OF THE INTERIOR BUREAU
OF MINES, PITTSBURGH RESEARCH CENTER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1916
Beatrice G. Chester, Esq.
For the Respondent
Philip T. Roberts, Esq.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
Statement of the Case
The charge in Case No. BP-CA-20688 was filed by the American Federation of Government Employees, Local 1916 (the Union) with the Boston Regional Director of the Federal Labor Relations Authority (herein called FLRA) on March 17, 1992. The charge in Case No. BP-CA-20864 was filed by the Charging Party with the Boston Regional Director on April 27, 1992. The charge in Case No. CH-CA-20487 was filed by the Charging Party with the Chicago Regional Director on June 2, 1992.
A Complaint and Notice of Hearing in Case No. BP-CA-20688 was issued by the Boston Regional Director of the FLRA on June 15, 1992. Thereafter, a Consolidated Complaint and Notice of Hearing in Case Nos. BP-CA-20864 and CH-CA-20487 was issued by the Chicago Regional Director of the FLRA on July 23, 1992 alleging that Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish certain information which was necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining.
The Respondent filed a Motion to Dismiss the Complaints or, in the Alternative, Motion for Summary Judgment on December 23, 1992. The General Counsel filed an Opposition to the Respondent's Motion on January 4, 1993. The Chief Administrative Law Judge of the FLRA issued an Order on January 13, 1993, deferring decision on the Respondent's Motion and the General Counsel's Opposition until the hearing on the Complaints.(1)
A hearing on the Consolidated Complaint was conducted in Pittsburgh, Pennsylvania at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. All parties filed timely briefs which have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from all the testimony and evidence at the hearing, I make the following:
Findings of Fact
The Union is the exclusive representative of a unit of employees appropriate for collective bargaining at Respondent's Pittsburgh facility. Employees in the bargain-ing unit generally perform mining-related research activity in one of three different areas: health and safety research, environmental technology research and productivity work. Approximately 150 employees are professionals with about 60 to 70 others working as technicians.
In 1990, the Union filed a grievance alleging that the Respondent had in place a "quota system" whereby the performance ratings given to unit employees (i.e., Out- standing, Exceeds Fully Successful, Fully Successful, Minimally Successful and Unacceptable) were to conform to a fixed percentage distribution. Prior to arbitration the grievance was resolved with a Memorandum of Understanding (MOU) signed by the parties on July 16, 1991.
The MOU provided, among other things, that employees would be given an opportunity to grieve their performance ratings for 1988, 1989 and 1990 and the Reviewing Official would then reappraise the employee for the appraisal period in question. It also contained the following:
The Union will be provided access to the IPP's of bargaining unit employees that are identified by the Union as being relevant to any of the grievances pursued for the rating year 1988, 1989, and 1990. (Emphasis added)
Sometime around November 8, 1991, the Union filed a grievance over the performance appraisals of several employees in the Dust Control and Ventilation Group. Thereafter, about November 13, 1991, Respondent replied to the grievance, asking for "information showing why you believe the rating was improper or inaccurate." The Union responded that employees should not be required to provide such information. On December 3, 1991, Respondent issued reappraisals for the employees who were part of the Union's grievance. Some of the appraisals were changed and some were not.
Around December 3, 1991, the Union requested a copy of completed Individual Performance Plans (IPPs) for all general workforce employees for 1988, 1989 and 1990. An IPP is a form maintained on bargaining unit employees which records the following: (1) an understanding between the rating official and employee of what is to be accomplished during the appraisal period; (2) how these accomplishments will be evaluated; (3) the employee's mid-point progress toward achieving the specified accomplishments; (4) the employee's actual accomplishments during the rating period; and (5) the final performance rating assigned the employee. The Union's request stated that it needed the information in connection with the "forced rating distribution grievances" which were pending. On December 6, 1991, Respondent declined to provide the information, claiming that the "forced rating grievance" was settled and therefore, it was under no further obligation to provide information.
On January 29, 1992, the Union appealed the decision of Respondent's Research Director concerning the various appraisal grievances. The appeal was filed on behalf of all employees whose grievances had not been resolved to their satisfaction. Again on January 30, 1992, the Union asked for the 1988, 1989 and 1990 IPPs. Respondent replied, on February 10, 1992 denying the information and again claiming that it was under no obligation to provide it since the underlying grievance had been settled.
On February 10 and 11, 1992, Respondent answered to each of the employees listed in the Union's appeal, denying further relief. Among other things, Respondent noted that employees had not provided any information in support of their grievance. Arbitration was invoked and is now in abeyance pending the outcome of the instant case.
The Union requested the same information a third time on February 19, 1992. It explained the intended use was to compare the IPPs of the grievants with the IPPs of other employees. The Union also noted that it did not need the IPPs of part-time and clerical employees. On March 4, 1992, Respondent again declined to provide the information, claiming that the Union had not provided sufficient explanation as to why it needed the information. Consequently, the information has never been supplied.
Sometime around December 20, 1991, the Union requested, "Copies of all the completed IPPs for the performance appraisal period ending in 1991 of all employees rated by Mr. Michael Trevits, Group Supervisor, Subsidence and Methane Control." It indicated that the information was needed to "use in assessing the merits of a potential performance rating grievance and, if filed, processing this grievance." Respondent replied on December 27, 1991, asking for more information about the possible grievance in order to possibly resolve it. Thereafter, on February 5, 1992, the Union retorted indicating that unit employee James Ulery, an employee under Trevits supervision, wished to grieve his 1991 appraisal and that it needed the information to assess the possible merits of such a grievance. On February 10, 1992, Respondent reacted to the second request, again by declining to provide the information, but indicating it would reconsider the request if Ulery filed a grievance and stated a basis for which of the ratings of other employees would be relevant to his grievance.
Ulery filed a grievance over his 1991 appraisal on March 2, 1992. The Union also renewed its initial request for the IPPs of other technical personnel in his area. Respondent answered on March 11, 1992, contending that the Union still had not shown how the requested information was relevant so as to outweigh the individual rights of the employees affected. Ulery's grievance was thus denied on April 3, 1992. Later, on April 8, 1992, the Union made a fourth request for 1991 IPPs for the technical personnel in the Ground and Methane Control Group. It explained that it needed the information to show that Ulery was treated differently than other employees in his group and that the weights assigned to the elements of his IPP were incorrect. Respondent answered on April 15, 1992, denying the information and claiming that the Union had not shown how the information was relevant.
Ulery's grievance was elevated by the Union and denied by the Respondent at the next levels of grievance process. Although the grievance is pending arbitration, no information was supplied.
Sometime around, February 19, 1992, the Union filed a grievance alleging that the "quota system" was still in place and had affected the bargaining unit's 1991 performance appraisals. On February 25, 1992 Respondent denied this grievance. The grievance was elevated to the next level on March 11, 1992 and denied on March 23, 1992. Arbitration was invoked and is in abeyance pending the outcome of the instant matter.
On March 12, 1992, the Union requested, "the completed IPPs of all bargaining unit employees who were rated for the performance appraisal period ending in 1991." It explained that the information was needed in connection with the grievance filed February 19, 1992. The Respondent declined to provide the information and in its letter dated March 24, 1992 stated the following:
Based on the issues identified by the Union in the subject grievance, the relevance of the information requested is not clear. If individual performance ratings are the issue in the grievance, then specifically related IPPs must be identified and the relevance specified in relation to a grieved rating. If the issue is a rating distribution having been prescribed by upper management then evidence of such is the issue rather than individual employee ratings.
Again on April 28, 1992, the Union requested the 1991 IPPs. It explained that it needed the information in order to identify how the appraisal process was manipulated, to identify disparities in the application of performance standards, to identify common performance characteristics that resulted in different ratings, and to identify potential grievants. Respondent's May 7, 1992 reply stated that the Union's need for the information was not clear, and furthermore, privacy interests of the individuals whose IPPs were at issue outweighed the Union's need for the information.
In all three cases the requested information was never supplied. In denying the information Respondent relied heavily on privacy and particularized need arguments as its justification for refusing to supply the information to the Union. The General Counsel seeks to counter those arguments with its interpretation of the present state of case law in the information area.
Agencies are obliged, under section 7114(b)(4) of the Statute, to provide the exclusive representatives with information which is normally maintained, reasonably available, and which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. The Respondent has admitted that the information involved here is normally maintained and that it does not constitute guidance advice, counsel, or training within the meaning of section 7114(b)(4)(C) of the Statute.
The parties sought to put an end to the longstanding issues concerning ratings in the Pittsburgh office by signing an MOU on July 16, 1991. That MOU is of primary consideration in all three cases since Respondent argues that the MOU precludes blanket disclosure of the unsanitized information requested here. While the MOU covers the grievances herein it certainly could be reasonably read to allow the Union any information it identified, which would aid in disposing of a number of potential employee grievances, including specific performance appraisals.
While not totally clear from the record, it emerged that Respondent felt that the Union's failure to identify the specific IPP's it wanted, as required by the MOU, relieves it of any obligation to supply the 1988, 1989 or 1990 IPPs and that any dispute over this interpretation of the MOU must be resolved through the parties grievance/arbitration machinery. The Union did specify which IPP's it wanted: all of them. Respondent's interpretation of the MOU seems to be, that the Union could only request some, not all, of the IPP's and furthermore, it had to provide proof to back up the need for those IPPs. This view is not, in my view, consistent with the plain language of the MOU which states "the Union will be provided access to the IPPs of bargaining unit employees that are identified by the Union as being relevant. . . ." It makes no reference to providing proof as to why the Union might need the IPP, but states only that it must identify a particular IPP as "relevant." Furthermore, the language of the MOU does not cover by any reference the need of the Union for IPPs where it is investigating or attempting to assess employee claims or where it might need the IPP to decide whether or not to proceed with certain claims. Nor does it appear to place a burden on the Union to establish relevance, especially where a grievance has been filed and where the grievance is specifically identified in the Union's request. Such language in it's plainest sense does not prevent the Union from asking, as it did, for all the IPPs nor does it require the measure of proof suggested by Respondent, in order to be given access to an IPP. Consequently, the undersigned finds that the MOU can not be reasonably read to bar disclosure of IPPs in this case. Internal Revenue Service, Washington, D.C. 47 FLRA 1091 (1993); Social Security Administration, Douglas, Arizona, 48 FLRA 383 (1993).
Accordingly, it is found that the MOU does not prevent Respondent from furnishing performance appraisals which are relevant and necessary to resolve existing grievances. Thus, it is the view of the undersigned that the IPPs in this case should be supplied where there is no violation of any other law. Therefore, Respondent's further arguments are considered below.
A. The information requested from Respondent is reasonably available
While Respondent does not argue that the information was not readily available, it does deny that the requested information is reasonably available. From its representations at the hearing, it appears Respondent feels that supplying the requested IPPs would be unduly burdensome. Respondent's counsel noted that the requests involved the IPPs for 300 employees for 1988, 1989 and 1990, or somewhere in the neighborhood of 900 IPPs. Including the 1991 IPPs that are the subject of CH-CA-20487, the total would increase to around 1200. Respondent offered no evidence to show that complying with these requests would adversely affect its ability to perform its mission or how it would otherwise affect its budget. It appears that the IPPs are all maintained in one central location and Respondent need only pull the IPPs and copy them.
It has been previously held that a request was not unreasonable which required production of records that would take three weeks to retrieve, Social Security Administration, 36 FLRA 943, 950-51 (1990), and that a request was not unreasonable which required an agency some three to four weeks to write a new computer program needed to retrieve the data, Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987), reversed as to other matters sub nom. FLRA v. Department of the Air Force Base, Ohio, No. 87-1387 (D.C. Cir. Aug. 9, 1990). The cases above clearly indicate that the mere fact that an agency has to make some effort to comply with an information request would not, standing alone, operate to deprive an exclusive representative necessary information. Lacking any evidence to establish that gathering and copying the IPPs in this case would create an unreasonable burden on Respondent, it is found that the requested information is reasonably available.
B. Necessary and Relevant
Respondent denies that the requested information is necessary because the Union made broad and indiscriminate across the board requests for IPPs which were tantamount to a "fishing expedition." It seems that as part of its represen- tational responsibilities, the Union has a legitimate right to satisfy itself that the ratings given by Respondent's supervisors are consistent with law and with the public interest. Thus, the records of how the ratings are given appears to be reasonably relevant to that issue and, therefore, necessary for it to make informed assessments in its representational role.(2) This being the case, issue needs be taken with Respondent's position that certain limitations are placed on exclusive representatives to investigate grievances and that here the Union may have been able to do so with less information than it asked for here. In Department of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1270-71 (D.C. Cir. 1993), the Authority in accord with the District of Columbia Circuit of Appeals, found that the necessity of information must be determined "in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement." U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 130 (1990), quoting American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (emphasis in original). Furthermore, on numerous occasions, performance appraisal data has been found necessary for the exclusive representative to perform the "full range" of its responsibilities. Id.; U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164, 165, 177 (1991) (SSAFO, Region II), rev'd per curiam sub nom. U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II v. FLRA, Civ. No. 92-1012 (D.C. Cir. Dec. 10, 1992); Internal Revenue Service, Washington D.C. and Internal Revenue Service, Wichita District, Wichita, Kansas, 32 FLRA 920, 925-26 (1988); Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 29 FLRA 107 (1987). Certainly, case law provides ample support for the Union's claim that in cases such as this, where employees' performance appraisals are being grieved, that appraisals of other unit employees are "necessary" information.(3) Finally, Respondent cannot deny that a "potentially grievable complaint may create the need for certain information. See, Department of Justice, Bureau of Prisons, supra.
The Union repeatedly expressed its need for the IPPs in this case. Furthermore, Respondent all but admitted that it had imposed a quota system for the allocation of ratings. Such a system is troublesome because, if it exists, some employees undeniably will receive ratings based not on the merit of their work, but on whether the supervisor had already given out too many Outstanding, Exceeds Fully Successful or Fully Successful ratings. This system is what the Union sought to rectify.
Merely establishing the existence of a quota system does not, however, reveal all its victims. In fact, this was the problem with Respondent's replies to individuals who grieved their 1988, 1989 and/or 1990 performance appraisals pursuant to the 1991 settlement agreement. Respondent demanded more information showing that the individual grievants were in fact among the victims of the quota system giving rise to the Union's request for more information, which happened to be the IPPs. The Union here was not just curious, but was seeking to satisfy Respondent's demand. In the circumstances, it is difficult for the undersigned to understand what other information the Union could have asked for in order to satisfy Respondent's demand for documentation of the grievants' claims. In this case, the record demonstrated and it is found that the requested IPPs were necessary for the Union to perform its obligations as an exclusive representative.(4)
Respondent makes much of the fact that the nature of the unit employees' work is so varied that few, if any, have duties that are similar enough to one another that their IPPs might prove useful for the Union for comparison purposes. Respondent's Deputy Research Director, Sacks, testified that even where different employees have similar items on their work plans, the tasks they are assigned to perform in connection with these items vary from employee-to-employee and furthermore, only their immediate supervisor or someone with similar expertise would be in a position to properly evaluate the merits of their work. Sacks also said, that the only person capable of deciding whether or not different employee's IPPs were comparable, and therefore relevant to the Union, would be the Personnel Office. In this regard, Respondent's personnel regulations specify that performance plans are to be developed to "ensure equity and consistency within  organizations" and that "performance plans for similar positions [should be] comparable in all important aspects." In actuality, all the non-clerical bargaining unit employees have elements in their IPPs which are for the most part "very similar." Respondent's point seems to be that any comparisons are useless because although the narrative description of an element may be the same for two employees, the actual work performed is different.
In reality, even though two employees may have identical performance standards, but actually perform different work, comparisons are not useless nor are such comparisons precluded because of a suspected privacy interest. While the usefulness of such comparisons might be reduced, they are not, in my view, rendered irrelevant or useless. The General Counsel seeks to explain the utility of such comparisons by what, the undersigned considers, an appropriate example. Thus, says the General Counsel, if a Physical Scientist in the Dust Control and Ventilation Group is given an Outstanding, in large part because of an article he has had published, while another Physical Scientist in the Environmental Technology Group, with five publications to his credit, is only given a Fully Successful, this evidence could be used to support an inference that the latter Scientist's rating was improper. Since both are Physical Scientists notwithstanding their working on different areas of research, each has as their ultimate goal to advance the state of their particular scientific endeavor, and a part of that process is most certainly publication. Of course there may be legitimate reasons for the difference in ratings, but then again, there might not. That question is for an arbitrator to decide. The plain fact is, that perfectly legitimate comparisons can be made between the ratings of two employees even though they perform different work.(5)
Sacks' also submitted that certain aspects of some appraisals that are so technical and esoteric that only the supervisor who drafted the appraisal would be in a position to understand the rating. According to Sacks, that there are some things which an outside party simply would not be able to measure. This, most certainly, in my view, defeats the purpose of having ratings in the first place. If this is the case, Respondent's position simply does not help its own case. The purpose of performance appraisals in the Federal government, in my thinking, is to provide objective documentation justifying the ratings given to each employee. If Respondent is correct and its ratings are so subjective as to be unreviewable by anyone other than the person who prepared the IPP, then the entire ratings process has a debatable value. In my opinion, Respondent may not properly deny the Union access to appraisal information simply by claiming that the information is unintelligible and worthless to an arbitrator. Thus, an arbitrator, not Respondent, must be the one to evaluate whether the Respondent has achieved the objective purpose of the appraisals.
Finally, Respondent maintains that the Union did not specifically identify which, if any, of the employees' IPPs were comparable. I agree with the General Counsel that in this particular case such an argument, if accepted, creates a Catch-22 situation which section 7114(b)(4) was designed to prevent. Thus, Respondent's position establishes an impossible burden of proving which IPPs would be relevant. If, as here, an agency refuses to supply the exclusive representative with information unless it can provide proof of the relevancy, yet the very information it is requesting is absolutely essential to establish that relevancy, then the exclusive representative cannot meet the burden of establishing why it needs the information. Presumably, Respondent would willingly supply the Union with the IPPs of specific individuals if the Union had been able to demonstrate to the Respondent's satisfaction that the individual employees performed comparable work. According to Sacks, however, the only way to tell what an employee's appraisal is based upon is to look at the work plan which is contained in the IPP and talk to the supervisor to ascertain the actual basis for the rating. How then, is the Union to identify which employees are comparable, when the Respondent will not give it the IPPs? The short answer is that the Union without the IPPs cannot perform its representational function of processing grievances.
Accordingly, it is found that the requested IPPs in all three cases were necessary and relevant for the Union to perform its representational role.
C. Prohibited by law
Respondent maintains that the release of the requested information is prohibited by law, specifically, that the Privacy Act, 5 U.S.C. § 552a, prevents the release of the requested information.
The Authority uses a balancing test to determine whether the Privacy Act prohibits disclosure of information under section 7114(b)(4) of the Statute. See, U.S. Department of Transportation, Washington, D.C., 47 FLRA 110 (1993). Under that test a balance is struck between the employee's right to privacy against the public interest in disclosure. One can say with some certainty, that in many instances individual employees would be inclined to maintain that information such as sought in this case, is private and thus, feel that the release of the information would be an invasion of his or her privacy. While this may be true, the exclusive representa- tive's need for the information cannot be subordinated simply because of individual concerns. This is particularly true, where as here, the exclusive representative is representing employees who are questioning the efficacy of the performance ratings and awards. Clearly, early resolution of such grievances or potential grievances where the public interest is involved points toward a finding that the information should be made available in unsanitized form. Thus, release of requested data in unsanitized form has already been ordered despite the fact that the disclosure might be viewed as an invasion of personal privacy by individual employees. See U.S. Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312 (1992); Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164 (1991).
5 U.S.C. § 552a is the Privacy Act which regulates disclosure of information in an agency record within a system of records retrievable by reference to an individual's name or other personal identifier. Such records are generally prohibited from disclosure unless one of the specific Privacy Act exceptions under 5 U.S.C. § 552a(b) is applicable. Section 552a(b)(2) permits disclosure of Privacy Act protected information to the extent such information is required to be released under the Freedom of Information Act (FOIA) provides that all records in the possession of the federal government agencies must be disclosed upon request unless subject to a specific FOIA exemption. Section (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st. Cir.).
In making a determination as to whether requested information falls within the (b)(6) exemption, it is necessary to balance the competing interest of the employees' privacy against the public interest in disclosure. Moreover, the public interest to be examined when applying the balancing test required by exemption (b)(6), is that embodied in the Statute.
There are serious public interests favoring the disclosure of the information in unsanitized form, in cases such as this, where no more than a minimal intrusion into the employees' privacy interests occurs. In this case, the documents at issue which are arguably within the purview of the Privacy Act are the performance ratings and awards. The disclosure of the IPPs in unsanitized form are essential to aid the Union in evaluating the merits of performance rating related complaints and the processing of performance rating related grievances. Furthermore, the disclosure of the names of the employees on the performance ratings and awards serves the public interest since it assists the Union in monitoring the administration of the appraisal and award systems, investigating and processing grievances and in seeing that employees are not treated in a disparate manner. See e.g., U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991).
A final factor to be considered is whether the Union specifically needs the names of the employees on the IPPs or if it could do just as well with sanitized IPPs. See, National Weather Service, supra, at 134-35; Compare, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324 (1990). Again Respondent seems to have proven its case too well. Thus, Sacks testified that the narrative portion of the IPPs may not describe details which are critical to understanding why an employee was rated as he or she was, and Sacks further testified that the only way to find out these critical details would be to talk to the employee or his/her supervisor. Further, Sacks conceded that if the IPPs were supplied in sanitized form, the Union would be unable to contact either the supervisor or the employee and thus would be unable to obtain this information which is critical to its understanding the IPP. In short, sanitized IPPs would be of little help to the Union.
Of particular note, Respondent has not articulated how, or in what manner, the disclosure of the requested information would constitute a clearly unwarranted invasion of employees' privacy interests to either the exclusive representative or to this forum. Respondent, really has never stated how disclosure of the information implicates any privacy interests of the affected bargaining unit employees, or how the employees would be stigmatized by the release of the data. Additionally, the Union here cannot reasonably obtain the information contained in the IPPs.(6) In its eagerness to prove that employees would be upset by the release of their IPPs to the Union, Respondent has only succeed in proving beyond dispute that any attempt by the Union to obtain the IPPs directly from the employees themselves would most likely be fruitless. Thus, the Union as no alternative means of obtaining the information; but, if it is to get it, the information must come from the Respondent. Furthermore, there is no evidence in the record or any reason to believe that the Union might publicize the information, or carelessly circulate the information. See, e.g., Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987).
The central purpose of FOIA is to ensure that the Government's activities be opened to the sharp eye of public scrutiny. U.S. Dep't of Justice v. Reporters Committee, 109 S. Ct. 1468, 1482 (1989). (Reporters Committee). Additionally, official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. The Union, without the names of the employees, would be unable to discern whether promotion actions or awards were made on a discriminatory basis. In this case, disclosure of the IPPs certainly open to "public scrutiny" what the Respondent is "up to" (Reporters Committee, 489 U.S. at 772-73) by showing what kind of work by unit employees merits what kind of performance rating. Such information would help show whether the public was getting its moneys worth from the Respondent's research projects. "Official information that sheds light on an agency's performance of its statutory duties falls squarely within the statutory purpose." Reporters Committee, quoted in VARO, San Diego, at 318.
Under these circumstances, the balancing of the employees' privacy interests against the exclusive representative's need for the information would not result in a "clearly unwarranted" invasion of personal privacy.
Finally, the IPPs are also subject to disclosure as a "routine use" under Section (b)(3) of the Privacy Act.(7)
"Performance appraisals for Federal employees and supporting documentation for those appraisals are contained in the system of records entitled 'Employee Performance File System Records.'" SSAFO, Region II, citing, 55 Fed. Reg. 3842-43. Routine uses of records maintained in this system include:
To disclosure information to an arbitrator to resolve disputes under a negotiated grievance procedure or to officials of labor organizations recognized under 5 U.S.C. chapter 71 [the Statute] when relevant and necessary to their duties of exclusive representation.
Id., quoting, 55 Fed. Reg. 3844.
The guidance offered by the Office of Personnel Management (OPM), FPM Letter 711-164 is not inconsistent for it provides that information may be released as a "routine use" if the information is "relevant" and "necessary." "Relevant" meaning that "the nature of the information bears a traceable, logical, and significant connection to the purpose to be served." "Necessary" signifying that "there are no adequate alternative means or sources for satisfying the union's information needs."
As previously discussed, the relevance of the information is clear. There were pending allegations that unit employees were the subject of an improper quota system. While Respondent did not deny the existence of the quota system, it nevertheless demanded that the Union produce information showing that the grievants were the victims of this quota system, and not some of their colleagues. The only way to prove this would be with information by which one could compare the grievants to their colleagues, and that information is contained only in the IPPs. In these circumstances, there is little question that a traceable, logical, and significant connection exists between the IPPs and the grievances filed by the Union in these cases.
Having rejected all of Respondent's arguments in this matter, it found that the release of IPPs requested by the Union in all three cases is not prohibited by law, specifically the Privacy Act. Furthermore, the release of such data is compatible with the Privacy Act and is, therefore, consistent with section 7114(b)(4) of the Statute. Accordingly, it is found that Respondent's failure to provide the above information constituted a violation of section 7116(a)(1), (5) and (8) of the Statute. Therefore, it is recommended that the Authority adopt the following:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center, shall,
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, Local 1916, the exclusive representative of its employees necessary and relevant information which was requested in connection with the processing of certain grievances.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish to the American Federation of Government Employees, Local 1916 the informa-tion requested on December 3, 1991, December 20, 1991, and March 21, 1992 respectively, unsanitized copies of the performance appraisals of employees, which the American Federation of Government Employees, Local 1916 requested in connection with the processing of certain grievances.
(b) Post at its facilities in the U.S. Department of Interior, Bureau of Mines, Pittsburgh Research Center, where bargaining unit members represented by the American Federation of Government Employees, Local 1916, 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 Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notifying the Regional Director of the Chicago Region, Chicago, Illinois, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, July 29, 1994
ELI NASH, JR.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, Local 1916, the exclusive represen- tative of our employees, necessary and relevant information which the Union requested in connection with a grievance.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish to the American Federation of Government Employees, Local 1916 the information requested on December 3, 1991, December 20, 1991, and March 21, 1992 respectively, unsanitized copies of the performance appraisals of employees, which the American Federation of Government Employees, Local 1916 requested in connection with the processing of a grievance.
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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Region, 55 West Monroe, Suite 1150, Chicago, IL 60603 and whose telephone number is: (312) 353-6306.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The General Counsel also filed a brief concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).
2. 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) and (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption 6 of the FOIA provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. In addition to the exemption relating to the FOIA, as relevant here, an exception to the Privacy Act, contained in section 552a(b)(3), provides for release of information "for a routine use[.]" A "routine use" is defined as the use of covered information "for a purpose which is compatible with the purpose for which it was collected." 5 U.S.C. § 552a(a)(7).
3. An IPP includes the following information for each employee: (1) an understanding between the rating official and employee of what is to be accomplished during the appraisal period; (2) how these accomplishments will be evaluated; (3) the employee's mid-point progress toward achieving the specified accomplishments; (4) the employee's actual accomplishments during the rating period; and (5) the final performance rating assigned to the employee. See Judge's Decision at 3. As no party either disputes the Judge's description of the IPP as "a form," or separately addresses the informational components in an IPP, we will treat it as a single document for purposes of our analysis.
4. A Union grievance alleging that the Respondent used a quota system in allocating performance ratings among its employees was settled pursuant to a memorandum of understanding (MOU) affording employees the opportunity to grieve their performance ratings for the years 1988 through 1990 and have the reviewing official reappraise performance for the period in question. The MOU also provided the Union with access to unit employees' IPPs "that are identified by the Union as being relevant to any of the grievances pursued for the rating year 1988, 1989, and 1990." Judge's Decision at 3 (emphasis omitted).
5. Although the record does not establish whether IPPs are contained in a system of records, the Judge found that Federal employees' performance appraisals and supporting documentation, which are contained in IPPs, are included in a system of records designated as "Employee Performance File System Records." See Judge's Decision at 15. The Union does not dispute this finding, and the Respondent agrees that employees' IPPs are maintained in an Office of Personnel Management (OPM) system of records. See also U.S. Department of Veterans Affairs, Medical Center, Veterans Canteen Service, Newington, Connecticut, 51 FLRA No. 16, slip op. at 6 (1995), (supporting documentation for performance appraisals is included in the OPM/GOVT-2 system of records).
6. For the reasons set forth in FAA, we no longer consider interests embodied in the Statute as a public interest cognizable in our Exemption 6 analysis. Accordingly, we also reject the Judge's conclusion that early resolution of grievances is a public interest cognizable under FOIA Exemption 6. FAA, 50 FLRA at 348-49.
7. According to Webster's Third New International Dictionary (unabridged) (1986), traceable is defined as "suitable or of a kind to be attributed: Due, Ascribable"; logical means "that [which] is in accordance with inferences reasonably drawn from preceding or surrounding or predictable facts or events or circumstances"; and significant refers to "having or likely to have influence or effect." The Authority occasionally refers to dictionary definitions of terms to supply meaning where none has otherwise been provided. For example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 958 n.2 (1994). See also U.S. Department of the Army, Red River Depot, Texarkana, Texas v. FLRA, 977 F.2d 1490, 1492 (D.C. Cir. 1992) (court found that Authority's adoption of dictionary definition of statutory term was permissible).
8. In so deciding, we do not address whether the information is "necessary" within the meaning of section 7114(b) of the Statute.
ALJ's Footnotes Follow:
1. In view of the disposition of the matters herein it is unnecessary to rule on Respondent's motions.
2. Union President Burks testified that the IPPs could be used in two ways: (1) the Union could compare the ratings given to employees with similar elements to see if they were given different ratings for similar work, and the Union could look at individual IPPs in isolation to see if the ratings were justified. Burks further testified that because some ratings might have depended upon facts not set forth in the IPP, he would need to have the IPPs unsanitized in order to contact individual employees to obtain more information concerning why they received the rating they received.
3. Respondent's attempt to play up the reluctance of unit employees to disclose their IPPs to the Union, nothwithstanding. It further appears that the information is necessary since the Union had no other means to gather the information contained in the IPPs. If employees did not want that information revealed then the alternative means of obtaining the information from those who did not want it revealed to process grievances would be clearly defeated.
4. The Authority appears to have adopted aspects the D.C. Circuit's "particularized need" test, the IPP's would nevertheless be considered "necessary" even under that test. U.S. Department of Transportation, Washington, D.C. and Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 47 FLRA 110, 121 (1993); National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992); Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992). As discussed above, the IPPs bear a direct relationship to the pending grievances. Moreover, Respondent demanded that the Union provide proof, such as is contained in the IPPs before it would rule in the Union's favor on those grievances.
5. Even assuming, that the work performed by each of the Respondent's employees was entirely different from one another, a legitimate reason to use the IPPs to compare employee's performance still exists. Imagine that there is a quota which dictates that 50 percent of the employees get Fully Successful ratings, 30 percent should get Exceeds Fully Successful ratings, and 20 percent should get Outstanding ratings. Then pretend that a supervisor has 10 employees working for him, all performing work which is entirely different from one another. With the quota system, he rates five of them Fully Successful, three Exceeds Fully Successful and two Outstanding. A review of the IPPs of Employee A, who received a Fully Successful and Employee B, who received an Exceeds Fully Successful, reveals that both appear to have achieved roughly 80 percent of work they were to have performed, according to their work plan. Even though each might do entirely different work from the other, the fact that both achieved similar levels of success within their assigned work plan, yet were ultimately rated differently, is certainly evidence an arbitrator might use in examining whether Employee A is a victim of the quota system. Thus, even conjecturing, as the Respondent claims, that none of its employees are comparable to one another, the above scenario suggests legitimate uses for the IPPs to resolve the issue.
6. See, e.g., FLRA v. NWS, 140 LRRM at 2286, n.2.
7. It is noted that the Respondent released the summary ratings to the Union under the "routine use" exception.