Federal Labor Relations Authority v. U.S. Dept. of Veterans Affairs

• Decision Date: 05 March 1992
• Docket Number: Nos. 272,D,98,s. 272
• Citation: 958 F.2d 503
• Parties: 139 L.R.R.M. (BNA) 2752, 60 USLW 2581 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner-Cross-Respondent, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Washington, D.C.; United States Department of Veterans Affairs Medical Center, Newington, Connecticut, Respondents-Cross-Petitioners. ocket 91-4049, 91-4067.
• Court: U.S. Court of Appeals — Second Circuit

Page 503

958 F.2d 503

139 L.R.R.M. (BNA) 2752, 60 USLW 2581

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner-Cross-Respondent, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Washington D.C.; United States Department of Veterans Affairs Medical Center, Newington Connecticut Respondents-Cross-Petitioners.

Nos. 272, 98, Docket 91-4049, 91-4067.

United States Court of Appeals Second Circuit.

Argued Oct. 2, 1991.

Decided March 5, 1992.

Sandra Wien Simon, Atty., Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Leonard M. Schaitman, Atty., Dept. of Justice, Washington, D.C., of counsel), for respondent-cross-petitioner.

Pamela P. Johnson, Atty., Federal Labor Relations Authority, Washington, D.C. (William E. Persina, Sol., William R. Tobey, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., of counsel), for petitioner-cross-respondent.

Elaine Kaplan, Deputy Director of Litigation, National Treasury Employees Union, Washington, D.C. (Gregory O'Duden, Director of Litigation, National Treasury Employees Union, Washington, D.C., of counsel), for The Nat. Treasury Employees Union as amicus curiae.

Before CARDAMONE, WALKER and McLAUGHLIN, Circuit Judges.

CARDAMONE, Circuit Judge:

The instant litigation deals with individual privacy rights. It used to be thought that citizens had a right to pass through this world without their successes and failures or comings and goings being the subject of comment, discussion or publication. But the advent of the data computer bank has nearly swept away that long-held notion, has virtually stripped from the individual's grasp control of information concerning his or her person, and has placed the precious and increasingly scarce "right to be let alone" in an endangered state. The specific issue on this appeal is whether individuals' right of privacy in their names and home addresses contained in government files outweighs the public interest in the disclosure of this information.

The Federal Labor Relations Authority (FLRA) seeks enforcement of its April 10, 1991 order finding that cross-petitioner United States Department of Veterans Affairs (Department) committed an unfair labor practice in refusing to release to its employees' exclusive representative, the National Association of Government Employees (union), the names and home addresses of bargaining unit employees. The Department cross-appeals for review challenging the validity of the order.

The cross-petition for review is granted; the petition for enforcement is denied.

BACKGROUND

The Federal Service Labor-Management Relations Act, 5 U.S.C. §§ 7101-7135 (1988) (Act), requires a federal agency upon request to furnish to its employees' exclusive bargaining representative information "normally maintained by the agency in the regular course of [its] business; which is reasonably available and necessary for full

                and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," to the extent that disclosure of such information is "not prohibited by law."  §  7114(b)(4)(A), (B).   Relying on this provision of the Act, the FLRA issued the order, which is the subject of this appeal, directing the Department to release to the union the names and home addresses of bargaining unit employees working in the Department.   United States Dept. of Veterans Affairs, Washington, D.C. and U.S. Dept. of Veterans Affairs Medical Ctr. Newington, Conn. and National Ass'n of Gov't Employees, Local R1-109, 40 F.L.R.A.  (No. 13) 101 (1991).   To properly understand the FLRA's petition for enforcement of this order, it is necessary to place the Act and judicial interpretations of it in context
                

A. The Statutory Framework

Concededly the Act affording disclosure "to the extent not prohibited by law" implicates the prohibitions contained in the Privacy Act of 1974, 5 U.S.C. § 552a, which generally bars disclosure of personal information, absent consent of the individual affected. See e.g., American Fed. of Gov. Employees, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir.1986) (Local 1760 ); see also United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 766, 109 S.Ct. 1468, 1477-78, 103 L.Ed.2d 774 (1989) (Reporters Committee ) (Privacy Act passed out of concern over impact of computer data banks on individual privacy). The Privacy Act excepts from its prohibition against disclosure information that must be made available under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, 5 U.S.C. § 552a(b)(2), and also excepts from its bar against disclosure the use of information in a record that is compatible with the reason why it was collected, called a "routine use." § 552a(b)(3). Consequently, whether a federal agency must disclose the names and home addresses of its employees to the employees' union requires a determination of whether such information would have to be disclosed under FOIA, see Local 1760, 786 F.2d at 556; FLRA v. United States Dept. of Treasury, Fin. Mgt. Serv., 884 F.2d 1446, 1450 (D.C.Cir.1989), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 107 L.Ed.2d 948 (1990) (Treasury ), or as a routine use.

FOIA is a broadly conceived statute whose overriding aim is disclosure. See Department of Air Force v. Rose, 425 U.S. 352, 361-62, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). Nonetheless, exceptions to the rule requiring access to government records represent Congress' assessment of "the types of information that the Executive Branch must have the option to keep confidential." Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Most relevant for purposes of this appeal is the FOIA exemption of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." § 552(b)(6) (Exemption 6). To determine whether Exemption 6 applies requires balancing an individual's right of privacy against the public purpose to be served by disclosure. See Rose, 425 U.S. at 372, 96 S.Ct. at 1604. Federal courts and the FLRA have differed on how this balance, in the context presented here, historically has been struck.

B. Case Law

The Federal Service Labor-Management Relations Act as its name implies governs employer-employee relations in the public sector. The FLRA's role in enforcing and implementing this Act is analogous to the role the National Labor Relations Board plays in the private sector. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 92-93, 104 S.Ct. 439, 441-42, 78 L.Ed.2d 195 (1983). Specifically, the FLRA is charged with "develop[ing] specialized expertise ... to give content to the principles and goals set forth in the Act." Id. at 97, 104 S.Ct. at 444. In carrying out its mandate, the FLRA has had to decide whether § 7114(b)(4) of the Act required a federal agency to release its employees' names and home addresses to the employees' union.

From 1985 to the present the FLRA's position has shifted back and forth with the case law. Following American Fed. of Gov. Employees, Local 1923 v. United States Dept. of Health and Human Services, 712 F.2d 931 (4th Cir.1983) (AFGE Local 1923 ) (upholding denial of union's FOIA request for information), it ruled that release of such information would result in a "clearly unwarranted invasion of personal privacy." See Farmers Home Admin. Fin. Office, St. Louis, Mo., 19 F.L.R.A. (No. 21) 195 (1985) (Farmers Home ). But when it sought enforcement in Farmers Home, we disagreed with the Fourth Circuit, holding instead that release of federal employees' home addresses was in the public interest and that release of such information was not barred by FOIA. See Local 1760, 786 F.2d at 557. Subsequently, the FLRA adopted our view in Farmers Home Admin. Fin. Office, St. Louis, Mo., 23 F.L.R.A. (No. 101) 788 (1986) (Farmers Home II ), enforced in part and remanded sub nom. United States Dept. of Agric. v. FLRA, 836 F.2d 1139 (8th Cir.1988), vacated on other grounds and remanded, 488 U.S. 1025, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989). Other circuits followed in directing release of this information, see United States Dept. of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3rd Cir.), petition for cert. dismissed, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); United States Dept. of the Air Force, Scott Air Force Base, Ill. v. FLRA, 838 F.2d 229 (7th Cir.), petition for cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988), including the Fourth Circuit in United States Dept. of Health and Human Servs. v. FLRA, 833 F.2d 1129, 1135 (1987), petition for cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988) (HHS ) (distinguishing its own decision in AFGE Local 1923 as involving neither review of an FLRA ruling nor a disclosure request pursuant to the Act, but rather a request directly under FOIA). In granting disclosure most of these cases ruled that the public interest in collective bargaining outweighed the "modest" individual privacy interest at stake.

But this entire corpus of decisional law was put into question by the Supreme Court in Reporters Committee. There the press requested the "rap sheet" of an individual alleged to have engaged in illegal financial dealings with a Congressman and the Department of Defense. The Department of Justice denied the request, relying on FOIA's exemption for "records ... compiled for law enforcement purposes," the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C) (Exemption 7(C)). The Supreme Court agreed with the Department of Justice holding that--notwithstanding that some of the information was already public--"[t]he privacy interest in a rap sheet is substantial." 489 U.S. at 771, 109 S.Ct. at 1480.

Turning to the public interest side of the balance, it stated that...