Federal Labor Relations Authority v. Department of Commerce

954 F.2d 994

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 24, 1992
• Docket: Nos. 90-1852, 90-1859
• Status: Published

Opinions

OPINION

SPROUSE, Circuit Judge:

This appeal concerns a complaint filed by the Marine Engineers Beneficial Association District No. 1 (the “Union”), the exclusive representative of several units of marine engineers employed by the Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service. In a proceeding before the Federal Labor Relations Authority (the “FLRA”), the Union charged the Department of Commerce with unfair labor practices for refusing to release the home addresses of bargaining unit employees to the Union. The Department had provided the Union with a list of all unit employees identified by the ship on which they were working and the schedule of the ship, but refused to provide the home addresses of the employees. The FLRA held that the refusal constituted an unfair labor practice, in violation of the Federal Service Labor-Management Relations Statute (the “FS Labor Statute”), 5 U.S.C. §§ 7101-7135, and ordered the Department of Commerce to release the requested home address information. The Department of Commerce petitions for review and the FLRA applies for an enforcement order.

I

Under the FS Labor Statute, a federal agency must provide to an exclusive bargaining representative information which is normally maintained by the agency when it “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). However, that section requires disclosure only “to the extent not prohibited by law,” 5 U.S.C. § 7114(b)(4), thus implicating the Privacy Act of 1974. The central issue in this case, therefore, concerns whether disclosure of the information is prohibited by the Privacy Act.

The Privacy Act generally prohibits disclosure of personnel information, 5 U.S.C. § 552a(b), but there are several exceptions to the Privacy Act’s disclosure prohibition, two of which are relevant here. Section 552a(b)(2) excludes from the prohibition information that is requested under the Freedom of Information Act (the “FOIA”) and § 552a(b)(3) excludes from the prohibition information authorized to be disclosed pursuant to a “routine use” under the Privacy Act.¹ The Union contends that its request for the home addresses of the Department of Commerce employees falls within both of these exceptions to the Privacy Act’s prohibition on the disclosure of personnel information.

II

The issue of disclosure of employee addresses has been widely litigated over the past several years so a review of the relevant case law is helpful to our resolution of the instant dispute. In Farmers Home Admin. Fin. Office, 23 F.L.R.A. (No. 101) 788 (1986), a case decided by the FLRA, the Farmers Home Administration argued that it was not necessary to disclose its employees’ home addresses under the FOIA because Exemption 6 to that Act authorizes withholding information from personnel and medical files when the disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552b(c)(6). In considering the application of Exemption 6, the FLRA balanced the public interest in disclosure against the privacy interest in withholding the information and concluded that the federal agency employer was required under § 7114(b)(4) of the FS Labor Statute to provide the home addresses of bargaining unit employees. The FLRA emphasized that federal collective bargaining serves the public interest, see § 7101(a)(1)(A),² and that disclosure of the information was “necessary” to the union’s ability to communicate effectively with bargaining unit employees. Consequently, the FLRA concluded that such a public interest outweighed the privacy interest implicated in disclosure of the information.

In Department of Health and Human Serv. v. FLRA, 833 F.2d 1129 (4th Cir.1987), cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988) (DHHS), this court endorsed the decision adopted by the FLRA in Farmers Home. In DHHS, the Department of Health and Human Services, as here, refused to provide the union with the home addresses of bargaining unit employees. The union’s expressed need for the addresses, as here, was to advise bargaining unit employees of its activities by mail and to solicit employees’ opinions with respect to negotiations between the union and the government agency. See DHHS, 833 F.2d at 1131. After determining that the information was “necessary” to the discharge of the union’s responsibilities, we addressed whether the Privacy Act prohibited disclosure of the information. Determining that the union had a right to the information under the FOIA exception to the Privacy Act prohibition, we held that the balance of interests weighs in favor of disclosure of the information under the FOIA, stating:

We find that [FLRA] has, as required by 5 U.S.C. § 7114(b)(4), properly applied the FOIA balancing test and we find no error in its conclusion that disclosure is warranted under the Federal Labor-Management Relations Act. That conclusion is not only consistent with the statutory language but it furthers the underlying Congressional policy of balancing competing interests to effectuate an efficient government.

Id. at 1135-36. Other circuits reached similar conclusions. See Department of Navy v. FLRA, 840 F.2d 1131, 1136-37 (3d Cir.), cert. dismissed, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); American Fed’n of Gov’t Employees, Local 1760 v. FLRA, 786 F.2d 554, 557 (2d Cir.1986).

The Department of Commerce here, however, argues that a recent Supreme Court decision, Department of Justice v. Reporters Comm, for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (Reporters Committee), overrules these holdings. In our view, however, there is a decisive difference between the issue in Reporters Committee and the central issue in DHHS and in this case.

In Reporters Committee, a news correspondent sought disclosure of an individual’s Federal Bureau of Investigation “rap sheet” under the FOIA, but the Department of Justice refused to provide the information. The Supreme Court upheld the Justice Department’s actions, finding that such information was exempted from the FOIA’s disclosure requirements by Exemption 7(C), which applies to investigatory records compiled for law enforcement purposes where production of such records could reasonably be expected to constitute an unwarranted invasion of personal privacy.³ See Reporters Committee, 489 U.S. at 780, 109 S.Ct. at 1485. The Court emphasized that under the FOIA, the “public interest” to be weighed against the privacy interest is that which underlies the FOIA— disclosure of information “to ensure that the Government’s activities be opened to the sharp eye of public scrutiny.” Id., 489 U.S. at 774, 109 S.Ct. at 1482 (emphasis in original). Interpreting Exemption 7(C), the Court found that a request for disclosure of law enforcement information that was wholly unrelated to any concern about activities of that federal agency constituted an unwarranted invasion of privacy. See id. at 780, 109 S.Ct. at 1485.

The Department of Commerce argues that Reporters Committee mandates that the only "public interest” to be weighed in the instant case is the interest underlying the FOIA and that this court may not consider the public interests underlying the FS Labor Statute, even though the Union requested the information pursuant to that Statute. It argues that the Union’s request for employee home address information sheds no light on the activities of the Department of Commerce and that, therefore, no “public interest” is implicated. The obvious thrust of that argument, of course, is that the strong privacy interests of the employees in not having their home addresses disclosed must prevail.

We agree with the Department of Commerce that the public interests involved in disclosure of the information must be weighed against the privacy interests of the employees in not having the information disclosed. We also agree that disclosure of employees’ home addresses implicates a legitimate privacy interest. However, in our view, the circumstances here are dissimilar to those considered in Reporters Committee. There, the Supreme Court considered a request for information made solely under the FOIA. No other federal statute was directly involved. Here, the Union requested the information under § 7114(b)(4)(B) of the FS Labor Statute, which directs the litigants to the Privacy Act which, in turn, directs them to the FOIA. We find this distinction critical and it compels our consideration of both the FS Labor Statute and the FOIA in determining the involved public interest. Consequently, we do not believe that Reporters Committee overrules our decision in DHHS.

Bearing on this conclusion is our discussion in DHHS of American Fed’n of Gov’t Employees, Local 1923 v. Department of Health and Human Serv., 712 F.2d 931 (4th Cir.1983) (AFGE). In AFGE, a union requested the home addresses of its bargaining unit employees solely under the FOIA. In denying the union the address information, the AFGE court held that employees have a “strong privacy interest in their home addresses,” id. at 932, that home addresses have “nothing to do with the agency’s ‘work,’ and disclosure thereof would shed no significant light on the agency’s inner workings.”⁴ Id. at 933. In DHHS, we distinguished AFGE, stating:

The instant cases come before us in a different posture in that [AFGE ] was not a review of a ruling by the Federal Labor Relations Authority. Here the Union has sought disclosure under the [FS Labor] Statute, not directly under the FOIA. The Authority has determined that [the government agency’s] refusal to disclose its employees’ home addresses to the Union constitutes an unfair labor practice. 5 U.S.C. § 7116(a). Considerable weight is due the Authority’s interpretation of the Statute.

DHHS, 833 F.2d at 1135. Moreover, in DHHS, we pointed out that the court in AFGE may have contemplated this distinction, for in AFGE, the court stated that the union “may be entitled to this information under some other federal law” and that its decision held “only that the Freedom of Information Act is not a proper vehicle for disclosure of that information.” AFGE, 712 F.2d at 933 n. 3.

Finally, since we conclude that our decision in DHHS controls the outcome here,⁵ it is not necessary to reach the routine use issue. Therefore, the petition for review is denied and the FLRA’s application for enforcement is granted.

PETITION FOR REVIEW DENIED; ENFORCEMENT GRANTED.

1 . 5 U.S.C. §§ 552a(b)(2) and (3) of the Privacy Act provide:

(b) Conditions of disclosure.

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—

(2) required under section 552 [the FOIA] of this title;

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section].]

"Routine use” is defined as the “use of such record for a purpose which is compatible with the purpose for which it was collected." 5 U.S.C. § 552a(a)(7).

2 . Section 7101(a) specifically states that Congress finds “labor organizations and collective bargaining in the civil service are in the public interest.” 5 U.S.C. § 7101(a).

3 . Reporters Committee involved Exemption 7(C), which the Supreme Court recognized was "broader" than Exemption 6. Reporters Committee, 489 U.S. at 756, 109 S.Ct. at 1472-73. Exemption 6 precludes a "clearly unwarranted invasion" of personal privacy, while Exemption 7(C) precludes an "unwarranted invasion." Id. Exemption 6 refers to disclosures that “would constitute" an invasion of privacy, while Exemption 7(C) encompasses any disclosure that "could reasonably be expected to constitute" such an invasion. Id.

4 . This language in AFGE seems to capture the central thrust of the holding in Reporters Committee — that a request for information under the FOIA must shed light on a government agency’s work. Therefore, we do not believe, as the Department of Commerce suggests, that the decision in Reporters Committee changed the law in this circuit.

5 . But see FLRA v. Department of the Treasury, 884 F.2d 1446 (D.C.Cir.1989), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 107 L.Ed.2d 947, 948 (1990).