975 F.2d 1105
141 L.R.R.M. (BNA) 2614, 61 USLW 2300
FEDERAL LABOR RELATIONS AUTHORITY, Petitioner-Cross-Respondent,
v.
UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES
DEPARTMENT OF the NAVY, WASHINGTON, D.C., and Navy CBC
Exchange, Construction Battalion Center, Gulfport,
Mississippi, Respondents-Cross-Petitioners.
FEDERAL LABOR RELATIONS AUTHORITY, Petitioner-Cross-Respondent,
v.
UNITED STATES DEPARTMENT OF DEFENSE, ARMY AND AIR FORCE
EXCHANGE, DALLAS, TEXAS, Respondent-Cross-Petitioner.
Nos. 90-4722, 90-4775.
United States Court of Appeals,
Fifth Circuit.
Oct. 9, 1992.
Rehearing and Rehearing En Banc Denied Dec. 7, 1992.
Pamela P. Johnson, William E. Persina, Sol., William R. Tobey, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., for petitioner.
Elaine Kaplan, Washington, D.C., for amicus curiae Nat. Treasury Employees Union.
Stuart Kirsch, Asst. Gen. Counsel-Litigation, American Federation of Government Employees, AFL-CIO, College Park, Ga., Mark D. Roth, Gen. Counsel Asst. Federal Defender, AFL-CIO, Washington, D.C., for intervenor A.F.G.
Sandra W. Simon, Leonard Schaitman, William Kanter, Appellate Staff, Civ. Div., U.S. Dept. of Justice, Robert Edwards, Asst. Gen. Counsel, Chief, Labor/Workers Compensation Law Branch, Army and Air Force Exchange Service, Dallas, Tex., for respondents.
Applications for Enforcement and Cross-Petitions for Review of Orders of the Federal Labor Relations Authority.
Before KING, JOHNSON, and EMILIO M. GARZA, Circuit Judges.
JOHNSON, Circuit Judge:
In these two cases two labor organizations who represent federal employees requested that the federal agencies disclose to the unions the names and home addresses of all of the employees in the relevant bargaining units. The employer agencies refused, and the unions filed unfair labor practice charges with the Federal Labor Relations Authority (FLRA). The FLRA ordered the employers to disclose the names and addresses, and has applied to this Court for enforcement of its orders. The federal agency employers have petitioned for review of those orders.
I. Facts and Procedural History
The facts of these two cases are virtually identical. The United Food and Commercial Workers Union, Local 1657, represents a bargaining unit composed of all regular full-time and part-time employees, and all intermittent employees of the Navy Exchange in Gulfport, Mississippi. In August 1988 the union requested that the Navy Exchange disclose to it the names and home addresses of all of the employees in its bargaining unit. The Navy Exchange refused the union's request. The union responded by filing an unfair labor practice charge with the FLRA. The FLRA ruled in favor of the union, and ordered the Navy Exchange to cease and desist from refusing to furnish the names and home addresses of all employees in the bargaining unit the union represents. In case No. 90-4722 the FLRA and the Navy Exchange seek enforcement and review of that order.
The American Federation of Government Employees, Local 1345, represents a consolidated, worldwide bargaining unit composed of all regular full-time and part-time employees, and all intermittent employees of the Army and Air Force Exchange Service, which is headquartered in Dallas, Texas, and operates a facility at Lowry Air Force Base in Colorado. In October 1988 the union requested that the Exchange disclose to it the names and home addresses of all of bargaining unit employees working at the Post Exchange at Lowry AFB. The Exchange denied the request, and the union filed and unfair labor practice charge with the FLRA. The FLRA ordered the Exchange to disclose the names and addresses. In No. 90-4775 the FLRA and the Exchange seek enforcement and review of the FLRA's order.II. Discussion
Because the disputes in these cases arise out of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., it is helpful to begin with a review of that statute and certain of the duties and obligations it places on labor organizations and federal employers.
A. The Federal Service Labor-Management Relations Statute
In adopting the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., (the "FLRS"), Congress observed that
experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment.
5 U.S.C. § 7101(a)(1). "Therefore," the Congress declared, "labor organizations and collective bargaining in the civil service are in the public interest."
To facilitate collective bargaining in the public sector, the FLRS provides that a labor organization may serve as the exclusive bargaining representative of a group of public employees as long as it fulfills certain duties. In particular, the FLRS provides that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." 5 U.S.C. § 7114(a)(1). That is, the labor organization must represent the interests not only of its dues-paying members, but also the interests of those employees in the unit who choose not to join the union. Thus, the requests by the unions in this case for the names and addresses of employees in the relevant bargaining units were requests designed to allow the union to contact not its own members, but rather the other employees in the units, so that the unions could determine what issues were of concern to those employees.
The FLRS also imposes obligations on the employer. For instance, in order to facilitate the bargaining process, federal employers are required
to furnish to the exclusive representative involved, or its authorized representative, upon request and to the extent not prohibited by law, data which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
5 U.S.C. § 7114(b)(4)(B).
The FLRA has taken the position that the names and addresses of employees in the bargaining unit is data which is "reasonably available and necessary" to the process of collective bargaining. The FLRA first took this position in its decision in Farmers Home Administration Finance Office v. American Federation of Government Employees, Local 3354, 23 FLRA 788 (1986) ("Farmers Home Administration" ), when it observed that
[s]ection 7114(a)(1) of the [FLRS] provides that an exclusive representative is responsible for representing the "interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Under this provision, a union's statutory responsibilities extend to all bargaining unit members. It is obvious that a union must be able to identify and communicate with those bargaining unit members if it is to adequately represent them.
Id. at 796. The FLRA thus concluded that disclosure of the names and addresses was necessary because it would "enable the Union to communicate effectively and efficiently, through direct mailings to individual employees." Id. Moreover, the FLRA held, the existence of alternative means of communication--such as desk drops, direct distributions, meetings, bulletin boards, and direct personal contacts--"is insufficient to justify a refusal to release the [names and addresses]." Id. This is so
because the communication between unit employees and their exclusive representative which would be facilitated by release of names and home addresses ... is fundamentally different from other communication through alternative means which are controlled in whole or in part by the [employer] agency. When using direct mailings, the content, timing, and frequency of the communication is completely within the discretion of the union and there is no possibility of agency interference in the distribution of the message. Further, direct mailings reach unit employees in circumstances where those employees may consider the union's communication without regard to the time constraints inherent in their work environments, and in which any restraint the employee may feel as a result of the presence of agency management in the workplace is not present.
Id. at 796-97. The FLRA has recently reaffirmed its position in United States Dep't of the Navy, Portsmouth Naval Shipyard v. International Federation of Professional & Technical Engineers, Local 4, 37 FLRA 515, 523 (1990) ("Portsmouth" ), and its orders in the two cases before this Court were based on the decisions in Farmers Home Administration and Portsmouth.
The FLRA's determination that the names and addresses are necessary for full and proper collective bargaining has been uniformly upheld in the federal courts of appeals. Initially, because the FLRA's position is one interpreting its own enabling statute, its interpretation cannot be upset by the federal courts as long as it is a "reasonable and defensible construction" of the statute. Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983). That is, the FLRA's interpretation of the FLRS must be "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.... [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). See also Department of Justice v. FLRA, 939 F.2d 1170, 1173 (5th Cir.1991) (FLRA is entitled to special deference when it exercises its special function of applying the general provisions of the FLRS to the complexities of federal labor relations).
There can be little question that the FLRA's position is a reasonable one. Every court of appeals that has reviewed the FLRA's determination that employees' names and address are necessary has found that to be a reasonable construction of the statute, and has upheld the FLRA's position. Most recently, the Ninth Circuit has ruled that it was not unreasonable for the FLRA to conclude that the employees' names and home addresses "are necessary so that the union's direct-mail literature can reach employees free of the mediation of the employer-controlled workplace." FLRA v. United States Dep't of the Navy, Navy Resale & Services Support Office, 958 F.2d 1490, 1494 (9th Cir.1992). Similarly, the Second Circuit has recently held that "alternatives to [the] direct communication afforded by mailings to all unit members--such as workplace visits or the use of bulletin boards--are not such effective alternatives as to make the FLRA's insistence on [home] mailings an arbitrary or capricious position." FLRA v. United States Dep't of Veterans Affairs, Veterans Affairs Medical Center, 958 F.2d 503, 507-08 (2d Cir.1992). While the D.C. Circuit also cited the advantages of home mailings over alternative means of communication, that Court further noted that the FLRA's position "corresponds to that of private sector labor relations law." FLRA v. United States Dep't of Treasury, Financial Management Service, 884 F.2d 1446, 1449 (D.C.Cir.1989), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 864, 107 L.Ed.2d 947, 948 (1990). Accordingly, the D.C. Circuit held the FLRA's interpretation was reasonable and should not be disturbed. Id.
At least three other circuits have also embraced the FLRA's position. See United States Dep't of the Navy, Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131, 1137-39 (3d Cir.), cert. denied, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988) ("Because a union must have the information necessary to fulfill its statutory responsibility to represent all employees in the unit, we conclude that the FLRA did not err in holding that the requested information is necessary ..."); United States Dep't of Agriculture v. FLRA, 836 F.2d 1139, 1142 (8th Cir.1988), vacated and remanded, 488 U.S. 1025, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989) (FLRA's position is not arbitrary or capricious); United States Dep't of Health and Human Servs., Social Security Administration v. FLRA, 833 F.2d 1129, 1131-34 (4th Cir.1987) ("Communication between the Union and bargaining unit employees appears to be as important to the performance of the Union's representational duties in the interim between negotiations as it is during negotiations[, and] ... the Union cannot discharge its [statutory] obligation unless it is able to communicate with those in whose behalf it acts."). Indeed, in the face of this seamless expanse of authority, the federal agencies involved in this case do not contest the FLRA's position. They expressly acknowledge that the weight of authority supports the FLRA's view, and thus no longer dispute that the names and addresses of their employees are necessary to full and proper collective bargaining.
B. The Previous Consensus that Employees' Names and Addresses Must be Disclosed
Given that the parties, the FLRA, and the courts uniformly agree that the employees' names and home addresses are necessary to the full and proper conduct of collective bargaining, the question then becomes whether disclosure of those names and addresses is, in the words of the FLRS, "prohibited by law." 5 U.S.C. § 7114(b)(4). Like the question of whether the employees' names and addresses are "necessary," at one time there was a broad consensus on the part of the FLRA and the federal courts that disclosure of those names and addresses was not prohibited by law.
The agencies have contended, over the life of this dispute, that disclosure of their employees' names and home addresses is "prohibited by law"--in particular, that disclosure is prohibited by the Privacy Act, 5 U.S.C. § 552a. In general, the Privacy Act, 5 U.S.C. § 552a, prohibits the disclosure of personal information about federal employees without their consent. 5 U.S.C. § 552a(b). The Privacy Act includes several exceptions, however, and it was well settled that one of these exceptions provided for the disclosure of the employees' names and addresses. Section 552a(b)(2) of the Privacy Act states that the Privacy Act does not bar disclosures of information "required under section 552 of this title"--a reference to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). As noted, at one time every court that considered the question agreed that the FOIA did not prohibit disclosure of the employees' names and addresses.
Generally speaking, the FOIA, with certain enumerated exceptions, "embodies 'a general philosophy of full agency disclosure'." Halloran v. Veterans' Administration, 874 F.2d 315, 318 (5th Cir.1989) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976)). One of the exceptions to the FOIA's directive of full disclosure encompasses "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Determining whether disclosure of some piece of information would constitute a "clearly unwarranted invasion of personal privacy," and would therefore be exempt from disclosure under the FOIA, requires balancing the specific privacy interests implicated by the information against the particular public interests that may be served--or disserved--by disclosure of the information. Halloran, 874 F.2d at 319. This Court has noted that "Congress contemplated that in applying these exemptions, courts would reconcile these competing interests by balancing all while ignoring none." Id. To this end the Congress sought to provide a "workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." Id.
Although the Fifth Circuit did not address the issue, the courts of appeals that weighed the private and public interests involved in disclosure of employees' names and addresses to collective bargaining representatives uniformly held that the balance tipped in favor of the public interests in collective bargaining, and therefore in favor of disclosure. See United States Dep't of the Navy, Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131, 1137 (3d Cir.), cert. denied, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); United States Dep't of the Air Force, Scott A.F.B. v. FLRA, 838 F.2d 229, 232-33 (7th Cir.), cert. denied, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); United States Dep't of Agriculture v. FLRA, 836 F.2d 1139, 1143 (8th Cir.1988), vacated and remanded, 488 U.S. 1025, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989); United States Dep't of Health and Human Servs., Social Security Administration v. FLRA, 833 F.2d 1129, 1135 (4th Cir.1987); American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554, 556-57 (2d Cir.1986).
Several considerations produced this consensus. Initially, the balancing itself does not present a particularly close question. On the one side of the scales is the weighty public interest in labor organizations and collective bargaining, an interest expressly identified and protected by Congress in the FLRS. Indeed, the Supreme Court has recognized that "[i]n passing the [FLRS] Congress unquestionably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest." Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 107, 104 S.Ct. 439, 449, 78 L.Ed.2d 195 (1983). On the other side of the scales, on the other hand, is a considerably lighter interest in privacy. While all of the courts of appeals agreed that employees had at least some legitimate interest in keeping private their names and home addresses, those courts consistently concluded that disclosure of that information would have only a modest or marginal effect on employees' privacy. Dep't of the Navy, Philadelphia Naval Shipyard, 840 F.2d at 1136 ("the invasion of privacy effected by such disclosure [of names and addresses] is not as serious as it would be by the disclosure of more personal information"); Dep't of the Air Force, Scott A.F.B., 838 F.2d at 232 ("Both the secrecy and the seclusion components of privacy ... are minuscule here."); Dep't of Agriculture, 836 F.2d at 1143 (average employee has only modest privacy interest in his home address); AFGE, Local 1760, 786 F.2d at 556 ("the privacy interest of the average employee in his address is not particularly compelling").
About the most significant intrusion into employees' privacy that could be identified by these courts--and by the agencies in this case--would be a possible increase in mail solicitations. As Judge Easterbrook has noted, however,
It is hard to see how the disclosure of home addresses could be "clearly unwarranted" as a rule. Most home addresses are in the telephone book, freely available to anyone interested. They are widely disseminated on mailing lists. And the mail that comes in response does not substantially impinge on seclusion; the addressee may send it to the circular file.
Dep't of the Air Force, Scott A.F.B., 838 F.2d at 232. To the same effect is the Third Circuit's recognition that "unwanted mailings are an unfortunate fact of our daily existence," but that "our annoyance with them does not rise to a privacy interest that outweighs a statutorily mandated disclosure interest." FLRA v. Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747, 759 (3d Cir.1992) (en banc).
In addition, several of the courts of appeals took notice of the fact that employers in the private sector are required to disclose the names and home addresses of their employees to the unions that represent those employees, and there is no apparent reason to apply different a different rule here. It is well recognized that the FLRS is modeled on private labor law, see Bureau of Alcohol, Tobacco & Firearms, 464 U.S. at 92-93, 104 S.Ct. at 441-42, and that "[p]rivate sector labor-relations case law, although not strictly binding as precedent, generally provides strong guidance in parallel public sector matters." Dep't of Treasury, Financial Management Service, 884 F.2d at 1458 (Ginsburg, J., concurring). See also Dep't of Health & Human Servs., Social Security Administration, 833 F.2d at 1132, 1132 n. 4 (noting that Labor Management Relations Act of 1947, which governs private sector labor relations, shares similar purposes and concerns with the FLRS); National Treasury Employees Union v. FLRA, 810 F.2d 295, 299-300 (D.C.Cir.1987) ("Congress was fully aware of the analogy between the FLRS and the National Labor Relations Act, ... Congress paid close attention to judicial precedent in private sector labor law when drafting the [FLRS].").
Finally, the Supreme Court has repeatedly cautioned that the exceptions to the FOIA are to be construed narrowly, in favor of full disclosure. See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). As Chief Justice Rehnquist has explained,
[t]he system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).... Nonetheless, the mandate of the FOIA calls for broad disclosure of Government records, and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed.
Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988) (citations and internal quotation marks omitted).
In light of all of these considerations, it is not surprising that the FLRA and the courts of appeals all agreed that the FLRS and the FOIA together required the disclosure of employees' names and addresses. The only surprising thing is that this issue--seemingly so well settled--is once again before the courts of appeals, and that the prior consensus has disappeared. The reason for the resurrection of this issue, and the emerging split among the Circuits, is the argument of the federal employers that a recent decision of the Supreme Court alters the balance of public and private interests, such that disclosure of employees' names and address is now forbidden.
C. The Supreme Court's Decision in Reporters' Committee
In Department of Justice v. Reporters' Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), a CBS news correspondent requested the Federal Bureau of Investigation to disclose, pursuant to the Freedom of Information Act, information concerning the criminal records of four members of the Medico family of Philadelphia, a family suspected of ties to organized crime. The FBI complied with the request as to three of the Medicos, each of whom was deceased, but refused the request relating to the fourth Medico. The correspondent brought an action to compel disclosure of the information. The Supreme Court held that the FBI was not required to release the information sought.
The Court reaffirmed that the FOIA's "basic policy [is one] of full agency disclosure unless information is exempted under clearly delineated statutory language." 489 U.S. at 773, 109 S.Ct. at 1481 (citations and internal quotation marks omitted). This basic policy, the Court explained, "focuses on the citizens' right to be informed about 'what their government is up to.' " Id. That is, "the FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed." Id. at 774, 109 S.Ct. at 1482. "Thus," the Court held,
whether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny, rather than on the particular purpose for which the document is being requested.
Id. at 772, 109 S.Ct. at 1481. Because release of criminal history information about the Medico family would not open any Government activities to the sharp eye of public scrutiny, release of that information would not serve the type of interest protected by the FOIA. Accordingly, in conducting the balancing required by the FOIA's exemption 7(C), the Medico's privacy interest necessarily outweighed the (non-existent, or at least non-cognizable) disclosure interest.
D. Balancing Public and Private Interests After Reporters' Committee
The employer federal agencies now argue, and the dissent agrees, that the Supreme Court's opinion in Reporters' Committee alters the balance of public and private interests by eliminating from consideration the public interest--embodied in the FLRS--in collective bargaining. That is, because disclosure of the employees' names and addresses advances the public interest served by the FLRS--protection and promotion of collective bargaining--but does not advance the public interest served by the FOIA--opening agency action to the light of public scrutiny--disclosure of the employees' names and addresses is no longer permissible. The agencies and the dissent have read too much into Reporters' Committee.
Initially, of course, it must be acknowledged that if one applies the restrictions announced in Reporters' Committee--confining cognizable interests in disclosure to those that open agency action to the light of public scrutiny--then disclosure clearly would be prohibited in this case. Release of the employees' names and addresses would not in any meaningful way open agency action to the light of public scrutiny; the only good reason to disclose those names and addresses is to allow the unions to fulfill their statutory mandate to represent the employees in their bargaining units. Thus, if letting the public know what the government is up to is the only interest that may be considered in favor of disclosure, then the employees' privacy interests, however limited they may be, would nonetheless prevail, and would prohibit disclosure.
However, Reporters' Committee does not control the outcome of this case. This is so for two reasons. First, the exemption addressed by Reporters' Committee is not the same exemption at issue in this case. Reporters' Committee determined the scope of Exemption 7(C) while we construe Exemption 6. While the language in these two exemptions is somewhat similar, the Supreme Court pointed out that there are significant enough differences between them that Exemption 7(C) should be applied more broadly than Exemption 6. Reporters' Committee at 756, 109 S.Ct. at 1473. The Court first recognized that while Exemption 6 mandates that the invasion of privacy be "clearly unwarranted," Exemption 7(C) requires that the invasion of privacy be merely "unwarranted." The Court then observed that while Exemption 6 applies to disclosures which "would constitute" an invasion of privacy, Exemption 7(C) pertains to disclosures which "could reasonably be expected to constitute" such an invasion. Because of these differences, the Supreme Court determined that "the standard for evaluating a threatened invasion of privacy interests resulting from the disclosure of records compiled for law-enforcement purposes [under Exemption 7(C) ] is somewhat broader than the standard applicable to personnel, medical, and similar files [under Exemption 6]." Id. at 756, 109 S.Ct. at 1473.
Second, unlike the complainants in Reporters' Committee, the unions' disclosure requests in this case do not arise under the FOIA. They are not FOIA requests. Rather, their requests originate from within the FLRS and its Congressionally endorsed framework for protecting and promoting collective bargaining. As a result, Reporters' Committee is not controlling because "[t]hat case did not present an occasion to evaluate the [FLRS's] explicit policy favoring collective bargaining as in the public interest, nor the interrelated rights and responsibilities imposed by Congress on an exclusive bargaining representative." FLRA v. United States Dep't of the Navy, Navy Ships Parts Control Center, 966 F.2d 747, 757 (3d Cir.1992) (en banc). In sum, Reporters' Committee has absolutely nothing to say about the FLRS, or the situation that arises when disclosure is initially required by some statute other than the FOIA, and the FOIA is employed only secondarily.
Moreover, even the courts that have denied enforcement of the FLRA's orders have recognized that Reporters' Committee does not specifically address the issues raised by this case. The rule announced in Reporters' Committee that "the identity of the requesting party has no bearing on the merits of his or her FOIA request,"
does not necessarily mean that there is no exception to the general rule that the public interest in disclosure under FOIA should be defined exclusively in terms of finding out what the "government is up to." Nothing in the [rule announced by Reporters' Committee ] suggests that the Court had considered and rejected the relevance of public interest objectives identified by Congress in other disclosure statutes. Moreover, the argument here is not that the identity of the requester should alter the disclosure interest, but rather that a congressional (non-FOIA) disclosure mandate might do so.
Dep't of Treasury, Financial Management Service, 884 F.2d at 1453.
The agencies argue, however, that the "plain language" of the FLRS, the Privacy Act, and the FOIA do not allow for any variations from the norms announced in Reporters' Committee. They suggest that in restricting its reach to disclosures not otherwise "prohibited by law" the FLRS incorporates unmodified the Privacy Act and the FOIA, and the restrictions that apply to FOIA requests. Thus, they contend, it would require an "imaginative reconstruction" of the Privacy Act and the FOIA to be able to introduce collective bargaining values into the balancing process.
The obvious flaw in the agencies' position, of course, is that prior to the decision in Reporters' Committee, every court that read the "plain language" of the FLRS, the Privacy Act, and the FOIA concluded that that language required the disclosure of employees' names and addresses. Whatever else Reporters' Committee may have done, it certainly did not amend the language of the FLRS, the Privacy Act, or the FOIA. Thus, it can hardly be said that the "plain language" of those statutes forbids disclosure, or that to bring into consideration the strong public interest in collective bargaining would require any imaginative reconstruction of those statutes. All that is required is the recognition that Reporters' Committee does not speak to the situation that arises when the Privacy Act and the FOIA are incorporated into some other statutory scheme which contemplates disclosure of agency records for purposes other than opening agency action to the light of public scrutiny.
Put differently--and wholly apart from the "plainness" of Congress' language--it certainly cannot be the case that Congress intended to have it both ways. That is, it is not plausible to suggest both 1) that Congress intended for names and addresses of employees to be disclosed, and 2) that Congress intended that the names and addresses of employees not be disclosed. It must be one or the other. Previously, as noted above, every court to consider the question had held that the correct position was that disclosure was required, a position which presumably gave effect to Congress' intention, as expressed in the FLRS and its incorporation of the Privacy Act and the FOIA. As with the language of the statutes, whatever else Reporters' Committee may have done, it certainly did not alter the Congressional intent embodied in these statutes. Thus, there simply is no merit in the agencies' suggestion that by drafting the FLRS as it did, Congress intended to prohibit disclosure of the names and addresses of employees.
It therefore becomes apparent that the agencies' position is not at all as "plain" as they suggest. They do not argue that the language of the FLRS plainly prohibits disclosure, but rather that the language of the FLRS has somehow become "plain" in the light of Reporters' Committee--such that it now "plainly" prohibits disclosure--despite the fact that Reporters' Committee has nothing at all to say about the FLRS. Again, whatever may be urged with respect to the effect of Reporters' Committee, that decision certainly does not mean--indeed, it does not anywhere suggest--that the strong public interest in collective bargaining no longer exists, or that that interest has diminished in value. At most, Reporters' Committee forbids the federal courts to take that interest into account when striking the balance between public and private interests.
We do not think, however, that Reporters' Committee goes even that far. Rather, we think it clear that the Supreme Court's opinion in Reporters' Committee is limited to the situation that arises when disclosure is sought under the FOIA alone, such that only the interests served by the FOIA may be included in the balancing. Reporters' Committee simply does not apply when disclosure is commanded by some statute other than the FOIA, a statute which borrows the FOIA's disclosure calculus for another purpose. When, as here, disclosure is sought through the FOIA only because the FOIA has been incorporated into another statute as a mechanism for disclosure of information, it is entirely proper and necessary--if all of Congress' aims are to be achieved--to weigh into the balance the interests recognized by the statute which generates the request for information. See, e.g., Dep't of the Navy, Navy Resale & Services Support Office, 958 F.2d at 1496 ("We doubt that Congress intended that its statement of the public interest in section 7101(a)(1) [of the FLRS] be ignored when examining the public interest element incorporated into section 7114(b)(4) through [the] FOIA.").
Indeed, it would require a particularly convoluted line of reasoning to conclude that the Congress, while 1) expressly recognizing the great public interest in collective bargaining, 2) acting to protect that interest, and 3) providing for disclosure of information according to a "formula which encompasses, balances, and protects all interests," would nevertheless forbid the federal courts to consider the public interest in collective bargaining when balancing the interests favoring and opposing disclosure of information which is conceded to be necessary to the full and proper conduct of collective bargaining.
In sum, we hold that Reporters' Committee does not require the federal courts, when balancing interests favoring and opposing disclosure, to ignore public interests other than those embodied in the FOIA when the disclosure request originates from some statute other than the FOIA. In such a case, it is proper for the federal court to consider the public interests embodied in the statute which generates the disclosure request. This approach fully accords not only with the FLRS--with its explicit declaration that it seeks to promote collective bargaining and its direction to unions that they represent nonmember employees as faithfully as they do their members--but also fully accords with Congress' aim in establishing the FOIA--to provide a workable formula "which encompasses, balances, and protects all interests." Indeed, we can see no basis on which to hold that although Congress expressly recognized the value to the nation of collective bargaining, it intended to exclude consideration of that value from the decision to disclose or not to disclose to labor unions the names and addresses of public sector employees.
III. Conclusion
For the reasons stated, this Court holds that the public interest in collective bargaining outweighs the employees' private interests in the nondisclosure of their names and addresses. Accordingly, disclosure of the employees' names and addresses would not constitute a clearly unwarranted invasion of privacy, and is not prohibited by the Privacy Act. The FLRA's application for enforcement of its orders compelling disclosure of the names and addresses is GRANTED. The agencies' cross-petitions for review of those orders are DENIED.
ENFORCEMENT GRANTED.
EMILIO M. GARZA, Circuit Judge, dissenting:
Because application of United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) to this case bars disclosure of the names and addresses of public sector employees, I respectfully dissent.
The majority holds that "Reporters Committee does not require the federal courts, when balancing interests favoring and opposing disclosure, to ignore public interests other than those embodied in the FOIA when the disclosure request originates from some other statute other than the FOIA." Maj. op. at 1115. I disagree.
The language of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (the "FLRS"), provides that a federal agency must furnish the exclusive representative data "reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining [to the extent not prohibited by law]." 5 U.S.C. § 7114(b)(4)(B). The D.C., First, Second, Sixth, and Seventh Circuits have held that "[t]he broad cross-reference in 5 U.S.C. § 7114(b)(4)--'to the extent not prohibited by law'--picks up the Privacy Act unmodified." Treasury, 884 F.2d at 1457 (Ginsburg, J., concurring) (emphasis added). "The Privacy Act[, however,] 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) ...." Veterans Affairs, 958 F.2d at 505. "Subsection 552(b)(6) ("exemption 6") of the FOIA[, in turn,] exempts from disclosure 'personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.' " Naval Communications, 941 F.2d at 52 (quoting 5 U.S.C. § 552(b)(6)).
Once placed wholly within the FOIA's domain, the union requesting information relevant to collective bargaining stands in no better position than members of the general public. True, unions have a special interest in identifying and communicating with persons in the bargaining unit, an interest initially accommodated by 5 U.S.C. § 7114(b)(4). The bargaining process facilitation interest is ultimately unavailing, however, because it 'falls outside the ambit of the public interest that the FOIA was enacted to serve,' i.e., the interest in advancing 'public understanding of the operation or activities of the government.' United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 775, 109 S.Ct. 1468, 1482-83, 103 L.Ed.2d 774 (1989).
Treasury, 884 F.2d at 1457 (Ginsburg, J., concurring).
Nonetheless, the majority argues that "Reporters Committee does not control the outcome of this case" because "Reporters Committee determined the scope of Exemption 7(C) while we construe Exemption 6." Maj. op. at 1113. While I agree that Reporters Committee deals with Exemption 7(C) and not Exemption 6, I disagree that Reporters Committee determines only the scope of Exemption 7(C). The difference between Exemption 6 and 7(C) goes only to the degree of personal privacy needed to outweigh the public interest; the public interest factor remains the same under both exemptions.
Although the context in Reporters Committee was the special privacy exemption for law enforcement records, exemption 7(C), we see no reason why the character of the disclosure interest should be different under exemption 6. While exemption 6 precludes only "a clearly unwarranted invasion of personal privacy" (emphasis added), that difference between it and exemption 7(C) goes only to the weight of the privacy interest needed to outweigh disclosure.
Treasury, 884 F.2d at 1451-52; see Reporters Committee, 489 U.S. at 767, 109 S.Ct. at 1479 ("Although the opinion dealt with Exemption 6's exception for 'personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,' and our opinion today deals with Exemption 7(C), much of our discussion in Rose is applicable here."). "What Reporters Committee adds to this analysis is that the only public interest cognizable under FOIA is the interest of the citizenry in obtaining information about the activities of its government." Navy Exchange, 975 F.2d at 353.
The majority--like the Third Circuit, sitting en banc, and panels of the Fourth and Ninth Circuits--also attempts to distinguish Reporters Committee by pointing out that " '[t]hat case did not present an occasion to evaluate the [FLRS's] explicit policy favoring collective bargaining as in the public interest, nor the interrelated rights and responsibilities imposed by Congress on an exclusive bargaining representative.' " See Maj. op. at 1113 (alterations in original) (quoting Navy Ships, 966 F.2d at 757).
Although I agree that Reporters Committee did not consider "the [FLRS's] explicit policy favoring collective bargaining as in the public interest," maj. op. at 1113, the language of section 7114(b)(4) and Reporters Committee makes this policy irrelevant. First, "[t]he broad cross-reference in 5 U.S.C. § 7114(b)(4)--'to the extent not prohibited by law'--picks up the Privacy Act unmodified." Treasury, 884 F.2d at 1457 (Ginsburg, J., concurring). "Nowhere in the [FLRS] does its language indicate that the disclosure calculus required by FOIA should be modified." Veterans Affairs, 958 F.2d at 512.
Second, Reporters Committee--in discussing "what [public interest] factors might warrant an invasion of [personal privacy]," Reporters Committee, 489 U.S. at 771, 109 S.Ct. at 1480--excluded from this consideration not only the identity of the requesting party, see maj. op. at 1114, 1115 n. 5, but also its purpose. See Reporters Committee, 489 U.S. at 711, 109 S.Ct. at 1480.
Our previous decisions establish that whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made. Except for cases in which the objection to disclosure is based on a claim of privilege and the person requesting disclosure is the party protected by the privilege, the identity of the requesting party has no bearing on the merits of his or her FOIA request. Thus, although the subject of a presentence report can waive a privilege that might defeat a third party's access to that report, and although the FBI's policy of granting the subject of a rap sheet access to his own criminal history is consistent with its policy of denying access to all other members of the general public, the right of two press respondents in this case are no different from those that might be asserted by any other third party, such as a neighbor or prospective employer.
Id. (citations omitted) (emphasis added). The public interest standard must be measured by "the core purpose of the FOIA as 'contribut[ing] significantly to the public understanding of the operations or activities of the government.' " Id. at 775, 109 S.Ct. at 1483 (alteration in original).
Because Reporters Committee controls "what [public interest] factors might warrant an invasion of [personal privacy]" under FOIA, it also controls disclosure of information requested under the FLRS. Accordingly, I would deny the FLRA's application for enforcement of its orders and grant the agencies' cross-petitions for review.