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50 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES AIR FORCE

HEADQUARTERS, 442ND FIGHTER WING (AFRES)

RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2127

(Charging Party/Union)

DE-CA-20896

_____

DECISION AND ORDER

June 13, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel filed an opposition to the 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 provide the Union with an unsanitized copy of the candidate referral roster used in making a selection for a supervisory vacancy under merit promotion procedures.⁽²⁾ 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.⁽³⁾

II. Judge's Decision

The facts are set forth fully in the attached Judge's decision and briefly summarized here. In connection with a grievance alleging that the grievant was improperly ranked on the candidate referral roster for a supervisory position, the Union sought an unsanitized copy of the candidate referral roster for that vacancy. The Respondent furnished the Union with a copy of the roster with the applicants' names and other personal identifiers deleted, because, in its view, the Privacy Act barred release of an unsanitized roster.

The Judge concluded, in a decision issued prior to United States Department of Defense v. FLRA, U.S. , 114 S. Ct. 1006 (1994) (Department of Defense), that the Respondent's refusal to furnish the unsanitized referral roster violated the Statute. The Judge determined that disclosure of the information was not barred by the Privacy Act and that the unsanitized candidate referral roster was necessary under section 7114(b)(4) of the Statute "for the Union to assess a potential grievance and perform its representational responsibilities[.]"⁽⁴⁾ Judge's Decision at 7.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent argues that release of the unsanitized roster is barred by the Privacy Act. The Respondent contends that unions seeking information protected by the Privacy Act have no greater right of access than members of the general public seeking the same information under the FOIA. According to the Respondent, disclosure of the relative rankings of employees "could generate friction and discord, and would potentially be stigmatizing and embarrassing depending on the relative ranking of an employee on the Roster." Exceptions at 8. Therefore, the Respondent argues, employees' significant interest in nondisclosure of their relative rankings outweighs the general public's "insubstantial" interest in the disclosure of the unsanitized roster. Id. The Respondent also maintains that the requested information is not necessary within the meaning of section 7114(b)(4) of the Statute.

B. General Counsel's Opposition

The General Counsel asserts that the Privacy Act does not bar release of the roster. The General Counsel maintains that there is "a very significant public interest" in disclosure of the information and that "opening to public scrutiny Respondent's application of its Merit Promotion System would contribute significantly to public understanding of the operations and activities of the government." Opposition at 11. On the other hand, the General Counsel contends that the roster would not be stigmatizing or embarrassing to the employees concerned. In the General Counsel's view, when the employees' "negligible" privacy interest is weighed against the strong public interest in disclosure, the balance favors release of the unsanitized roster. Id. at 12.

In addition, the General Counsel asserts that the Respondent did not sustain its burden of establishing that the requested information is covered by the Privacy Act. Specifically, according to the General Counsel, the Respondent failed to show that the roster is part of a system of records from which the roster must be retrieved by name or personal identifier. Finally, the General Counsel asserts that the information is "necessary," within the meaning of section 7114(b)(4) of the Statute to enable the Union to determine whether the Respondent was adhering to its contractual obligation to follow established merit promotion procedures and to decide whether "the disputed document creates a grievable action." Id. at 8.

IV. Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information is not required by the FOIA because release of the data would constitute a clearly unwarranted invasion of personal privacy and, therefore, is prohibited by the Privacy Act. Accordingly, without addressing the parties' arguments concerning whether the information is necessary under section 7114(b)(4) of the Statute, we dismiss the complaint.

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 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 FOIA Exemption 6 and, therefore, is prohibited by the Privacy Act. We stated that an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the information sought is contained in a "system of records" within the meaning of the Privacy Act; (2) that disclosure would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. 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 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 concerning 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 this case, the Respondent has already provided to the Union a copy of the candidate referral roster with employees' names and other personal identifiers deleted. Thus, the question before us is whether disclosure of the deleted names and other personal identifiers is prohibited by the Privacy Act. We note, in this connection, that the Union has requested an unsanitized roster for the purpose of matching those names with other information already contained on the roster. This other information includes candidates' scores in categories encompassing, among other things, performance appraisals and awards. See General Counsel's Exhibit No. 5. Cf. Respondent's Exceptions at 8 (Respondent states that an employee's relative ranking on a referral roster "is derived in part from consideration of factors such as experience, education, training, and appraisal and award history of that employee."). Disclosure of the requested information would effectively require release of a complete, unsanitized referral roster.

Although the Judge made no finding with respect to whether candidate referral rosters are contained in a system of records, it is apparent that they are.⁽⁵⁾ In addition, we find that the Respondent has established that the information sought implicates employees' privacy interests. In agreement with the Respondent, we find that employees have a privacy interest in their relative rankings for the disputed vacancy and the other personal information on the roster. Consistent with Authority precedent, these privacy interests are "significant." Federal Crop Insurance Corporation, 42 FLRA at 1179.

The requested information also implicates a public interest cognizable under Exemption 6. In this regard, the referral roster contains each candidate's name and overall ranking for the supervisory position in question and the candidate's scores in various components of the overall ranking, including performance appraisals and awards. Thus, disclosure of the roster would reveal a candidate's qualifications for promotion, how each candidate was ranked under the Respondent's merit promption plan, and how the person selected for the supervisory position compared with other candidates. Disclosure of the roster would, thereby, shed light on whether the Respondent made a selection for the supervisory position on the basis of merit.

However, our review of the record leads us to conclude that the aforementioned public interest cognizable under Exemption 6 would not be enhanced by disclosure of the portion of the information withheld by the Respondent--the names and other personal identifiers of applicants for a vacancy. That is, although there is a public interest in the roster, such interest has not been identified in disclosure of the names and other personal identifiers on the roster. See Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (in finding that agency was justified in deleting names and other personal identifiers from employee evaluation forms, court stated that public interest in forms could "be substantially advanced . . . short of disclosure of the names . . . found on the evaluation forms"). See also United States Department of State v. Ray, 502 U.S. 164, 178 (1991) (Court concluded that agency properly redacted names and other identifying information from summaries of certain interviews, holding that public interest in the information had "been adequately served by disclosure of the redacted interview summaries" and that the "addition of the redacted identifying information would not shed any additional light on the Government's conduct).

In this connection, disclosure of the referral roster, with the applicants' names and other personal identifiers included, may well enhance the Union's ability to determine whether a grievance is justified. However, this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6. Similarly, although the Judge found that the public interest embodied in the Statute outweighed employee privacy interests, we no longer consider interests embodied in the Statute as a public interest cognizable under the FOIA in determining whether information is disclosable. FAA, 50 FLRA at 344 n.6.

In the circumstances of this case, we conclude that, on balance, the public interest served by disclosure is outweighed by the 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, and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the requested information under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute.⁽⁶⁾

V. Order

The complaint is dismissed.

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

1. The Respondent and the General Counsel also filed briefs 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. In addition, the complaint alleged that the Respondent violated the Statute by failing to furnish the Union with an unsanitized copy of the merit promotion certificate. Because the Judge found that the General Counsel had not established by a preponderance of the evidence that the Respondent's failure to provide that document violated the Statute, the Judge declined to order that the Respondent make a copy of the certificate available to the Union. Judge's Decision at 7 n.5. As there are no exceptions to that aspect of the decision, we will not address the matter further.

3. 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(1)(4), (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 (b)(6) of the FOIA (Exemption 6) 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 exception relating to the FOIA, other exceptions to the Privacy Act may permit disclosure of requested information. However, no other exceptions are asserted to apply in this case. See note 6.

4. In support of his determination, the Judge cited United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312 (1992).

5. The Federal Register 1993 compilation of Privacy Act Issuances states that the Agency includes "merit promotion plan work files" within an Agency system of records identified as the "Personnel Data System." The applicable Agency regulation, AFR 40-335, Section F, provides that a "promotion plan" must include, among other things, a "copy of the ranked roster of eligible competitors (or reference to an established, continuing register)." Respondent's Exh. 5. Moreover, the Authority has found that promotion-related documents, including a list of best-qualified candidates that is analogous to the candidate referral roster at issue in this case, are contained in a system of records from which information is retrieved by the individual's name or some personal identifier. E.g., National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 42 FLRA 1169, 1176 (1991) (Federal Crop Insurance Corporation). In these circumstances, we find, as we did in FAA, that it is proper to take official notice of the fact that the requested information is contained in an Agency system of records, within the context of the Privacy Act. FAA, 50 FLRA at 346.

6. Although the General Counsel notes that Department of Defense did not address the "potential applicability" of the "routine use" exemption to the Privacy Act, 5 U.S.C. § 552a(b)(3), the General Counsel makes no assertion that the requested information may be released pursuant to a routine use. Opposition at 10. Accordingly, we do not address that issue. See supra note 3.

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