Federal Labor Relations Authority v. U.S. Department of the Navy

966 F.2d 747, 140 L.R.R.M. (BNA) 2361

Opinions

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The Federal Labor Relations Authority seeks enforcement of its order requiring that the United States Department of the Navy disclose to a union, designated an exclusive bargaining representative, the home addresses of employees within a particular bargaining unit. Our inquiry focuses on whether disclosure of these home addresses is permissible under either of two exceptions to the Privacy Act: 1) Exemption 6 of the FOIA, 5 U.S.C.A. § 552(b)(6), which exempts from disclosure only “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C.A. § 552a(b)(2); and 2) disclosure “for á routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section.” 5 U.S.C.A. § 552a(b)(3).

With respect to the FOIA exception, the Navy urges that we reconsider our previous decision of United States Dep’t of the Navy v. FLRA, 840 F.2d 1131 (3d Cir.), cert. dismissed, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988) (holding that the FOIA exception permits disclosure) in light of the Supreme Court’s decision in United States Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Because we held that disclosure was permissible under the FOIA exception, we did not address the routine use exception in Dep’t of the Navy.

I.

This controversy arose in January of 1988, when the American Federation of Government Employees, Local 1156, AFL-CIO (Union), the intervenor in this case and a certified exclusive bargaining unit representative under the Labor Statute,¹ requested that five Navy Commanding Officers supply the names and home addresses of all non-supervisory employees within the bargaining unit.² As a factual matter, it is undisputed that the Navy has provided the Union with the names of all of the bargaining unit employees and that the Union possesses the home addresses of its members. At issue remain only the home addresses of bargaining unit employees who have neither joined the Union nor consented to the disclosure of their home addresses to the Union.

After its requests were denied, the Union filed a charge against the Navy for unfair labor practices in violation of the Labor Statute, 5 U.S.C.A. § 7116(a)(1), (5) and (8). J.A. at 62. An administrative law judge subsequently granted summary judgment in favor of the Union, and by order dated September 28, 1990, the FLRA affirmed the AU in a brief opinion that incorporated the reasoning of its lengthier opinion in United States Dep’t of the Navy, Portsmouth Naval Shipyard, 37 F.L.R.A. (No. 39) 515 (1990), issued just two days earlier.³ United States Dep’t of the Navy, Navy Ships Parts Control Center, 37 F.L.R.A. (No. 58) 722 (1990) (Navy Ships Parts Control Center). The FLRA then petitioned our court for enforcement and the Navy petitioned for review. Our appellate jurisdiction over these cross-petitions is premised upon 5 U.S.C.A. § 7123(b) and (a), respectively.

We review FLRA determinations under the arbitrary and capricious standard set forth in the Administrative Procedure Act, 5 U.S.C.A. § 706(2)(A). See Dep’t of the Navy, 840 F.2d at 1134. We also accord “considerable weight” to the agency’s construction of its own enabling statute, the Labor Statute, but less deference to the FLRA’s construction of the FOIA or the Privacy Act. Id.

II.

In the Labor Statute, Congress plainly stated that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business;” therefore, “labor organizations and collective bargaining in the civil service are in the public interest.” 5 U.S.C.A. § 7101(a)(1)(A), (B) and (2). To achieve this goal, the Labor Statute provides for the award of exclusive representation to labor organizations, 5 U.S.C.A. § 7111, and imposes interrelated rights and obligations upon an exclusive bargaining representative, 5 U.S.C.A. § 7114. The disclosure provision at issue here, section 7114(b)(4), also outlines the obligations of both the exclusive bargaining representative and the government agency “to negotiate in good faith.” In particular, the Labor Statute specifies 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.A. § 7114(a)(1) (emphasis added); S.Rep. No. 969, 95th Cong., 2d Sess. 104, reprinted in 1978 U.S.C.C.A.N. 2723, 2826. See Karakalios v. Nat’l Fed’n of Fed. Employees, Local 1263, 489 U.S. 527, 531, 109 S.Ct. 1282, 1285, 103 L.Ed.2d 539 (1989); Dep’t of the Navy, 840 F.2d at 1135. Thus, irrespective of a bargaining unit employee’s union membership, the Union shoulders a statutory mandate to represent that individual’s interests.

Subsection (b) imposes upon the exclusive bargaining representative the “duty to ‘negotiate in good faith’ [which] include[s] approaching negotiations with a sincere resolve to reach an agreement, being represented at negotiations by [an] appropriate representative prepared to discuss and negotiate on all negotiable matters.” S.Rep. No. 969, 95th Cong., 2d Sess. 104, reprinted in 1978 U.S.C.C.A.N. 2826. In this manner, the Labor Statute affixes intertwined rights and obligations upon the exclusive representative toward bargaining unit employees, without regard to union membership. Thus, the Union has sought disclosure of these home addresses under the Labor Statute that describes collective bargaining as in the public interest and imposes obligations upon exclusive bargaining representatives to further that purpose.

The Labor Statute’s disclosure provision requires government agencies to furnish data “which is normally maintained by the agency in the regular course of business” and “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 not prohibited by law.” 5 U.S.C.A. § 7114(b)(4) (emphasis added).⁴ The Navy contends that the Privacy Act, 5 U.S.C.A. § 552a, prohibits disclosure to the Union of nonmember employees’ home addresses absent employee consent unless one of twelve exceptions applies. See also FLRA v. United States Dep’t of the Treasury, 884 F.2d 1446, 1448 (D.C.Cir.1989) (deferring to the FLRA’s determination that “to the extent prohibited by law” refers to the Privacy Act), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 864, 107 L.Ed.2d 948 (1990). As mentioned previously, only two exceptions are presented here: the FOIA and the routine use exceptions to the Privacy Act. 5 U.S.C.A. § 552a(b)(2) and (3).

III.

A preliminary question posed is whether under the Labor Statute these home addresses are “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; _” 5 U.S.C.A. § 7114(b)(4)(B). Because an exclusive representative bears a statutory duty to represent the “interests of all employees ... without regard to labor organization membership,” 5 U.S.C.A. § 7114(a)(1), and these employees may evidence reluctance to participate in the Union’s bargaining efforts, the FLRA has taken the approach that home addresses are per se necessary to collective bargaining. The Navy contends, however, that a particularized factual finding of the availability of alternative avenues of communications must be made in each case and suggests, somewhat ambiguously, that the FLRA’s failure to appraise alternatives to home addresses in this case is tantamount to a failure to find the prerequisite necessity for home addresses required for a request for disclosure under section 7114(b)(4).⁵

The FLRA took the position that disclosure of home addresses was necessary for collective bargaining initially in Farmers Home Administration Finance Office, St. Louis, Missouri (Farmers Home II), explaining that disclosure would “enable the Union to communicate effectively and efficiently, through direct mailings to individual employees.” 23 F.L.R.A. (No. 101) 788, 796 (1986). The FLRA also found, consistent with the Second Circuit opinion of American Fed’n of Gov’t Employees, Local 1760 v. FLRA, 786 F.2d 554, 557 (2d Cir.1986), that “the mere existence of alternative means of communication is insufficient to justify a refusal to release [home addresses].” Farmers Home II, 23 F.L.R.A. (No. 101) at 796. Finally, the FLRA eschewed a case-by-case review approach, finding that communication by means of direct mailings was so far superi- or to alternatives as to render home addresses necessary regardless of alternative means of communication. Id. at 796-97; see Portsmouth, 37 F.L.R.A. (No. 39) at 522-23 (relying upon Farmers Home II and concluding that opening the record for fact-finding of alternative methods of communication unnecessary). As in Portsmouth, it is undisputed that the AU and FLRA did not engage in factfinding in this case and relied instead on the per se rule of Farmers Home II. See Transcript of Oral Argument at 14; Navy Ships Parts Control Center, No. 2-CA-80243 (F.L.R.A. Sept. 21, 1988) (AU’s Decision and Order) (reprinted at J.A. at 19, 22-23); Navy Ships Parts Control Center, 37 F.L.R.A. (No. 58) at 722-23.

In our 1988 panel decision in Dep’t of the Navy, we did not have occasion to address the merits of Farmers Home II’s per se rule. Although Dep’t of the Navy followed Farmers Home II, the record before our panel contained substantial factual findings concerning the inadequacies of alternative means of communication. 840 F.2d at 1138-39. In addition, despite the per se language of Farmers Home II, counsel for the FLRA represented at oral argument that alternative methods of communication had been assessed in each case and resulted in a factual finding of necessity. 840 F.2d at 1139. Such is no longer the case, as the Portsmouth progeny clearly demonstrates.

Our first task is to determine “whether Congress has directly spoken to the precise question at issue,” and if not, then “whether the [FLRA’s interpretation] is based on a permissible construction of the statute.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). There is no contention here that the Labor Statute speaks directly to whether disclosure of home addresses is “necessary” for collective bargaining purposes; rather, Congress delegated this sort of specific determination to the FLRA in the Labor Statute. 5 U.S.C.A. § 7105(a)(1) (the FLRA “shall provide leadership in establishing policies and guidance relating to matters under this chapter”); 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).

Therefore, we employ a deferential standard of review and will accord deference to the FLRA’s interpretation of “necessary” in section 7114(b)(4)(B). Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83; Dep’t of the Navy, 840 F.2d at 1138. In Farmers Home II, the FLRA explained a satisfactory rationale for the per se rule:

[W]e find that the mere existence of alternative means of communication is insufficient to justify a refusal to release the information. Further, we find that it is not necessary for us to examine the adequacy of alternative means in cases involving requests for names and home addresses because the communication between unit employees and their exclusive representative which would be facilitated by release of names and home addresses information is fundamentally different from other communication through alternative means which are controlled in whole or in part by the 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.

23 F.L.R.A. (No. 101) at 796-97. We believe that the FLRA’s interpretation of what is necessary does constitute a permissible construction of the Labor Statute.

In its brief, amicus curiae, the National Treasury Employees Union (NTEU), lends support to the FLRA’s judgment by illustrating some of the difficulties it encounters in communicating with the 40 percent of its bargaining unit employees who do not belong to the union. Amicus Brief at 2. As the NTEU explains, its bargaining units are often geographically dispersed, even nationwide, and many employees work in the field without making daily office visits. The NTEU bargaining efforts are further encumbered by a union steward to employee ratio of 1/50 and workplace restraints upon using government time for union purposes. Amicus Brief at 3. The availability of home addresses therefore provides the most effective avenue of communication with nonmember employees.

IV.

Before addressing the exceptions to the Privacy Act, a diversion into the developments in the home address litigation will aid in later framing the relevant issues. The FLRA first permitted disclosure of home addresses under the FOIA exception to the Privacy Act in Farmers Home II,6 Starting with the premise that the “clearly unwarranted” language of Exemption 6 of the FOIA required it to tilt the balance in favor of disclosure, the FLRA characterized the public interest to include promotion of collective bargaining under the Labor Statute and identified ways in which disclosure would enable unions to better accomplish their statutory responsibilities and foster collective bargaining. 23 F.L.R.A. (No. 101) at 792-93. Adopting one court’s evaluation of the employees’ privacy interest in their home addresses as “not particularly compelling,” see American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir.1986) (AFGE), the FLRA concluded that the public interest “far outweighs” the privacy interest. Farmers Home II, 23 F.L.R.A. (No. 101) at 793.

In Farmers Home II the FLRA established as well that disclosure fell within the routine use exception to the Privacy Act. 5 U.S.C.A. § 552a(b)(3). The FLRA equated the standards “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining” in section 7114(b)(4) of the Labor Statute with “relevant and necessary to their duties of exclusive representation” in the Office of Personnel Management’s Federal Register notice of a routine use. Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Routine Use, 49 Fed.Reg. 36,-956 (Sept. 20, 1984). It determined that home addresses are “necessary” for collective bargaining purposes under section 7114(b)(4) and under the routine use notice. Farmers Home II, 23 F.L.R.A. (No. 101) at 794.

In a panel opinion, United States Dep’t of the Navy v. FLRA, 840 F.2d 1131 (3d Cir.1988), we held that under the FOIA exception to the Privacy Act, the privacy interest of government employees in their home addresses did not outweigh the strong public interest in collective bargaining mandated by the Labor Statute and the FOIA’s policy in favor of disclosure. Dep’t of the Navy, 840 F.2d at 1137.⁷ Acknowledging first that the Labor Statute established that collective bargaining serves the public interest, we characterized the employees’ privacy interest in their home addresses as a “meaningful interest in privacy concerning the information about their homes.” Dep’t of the Navy, 840 F.2d at 1135-36. We termed the “invasion of privacy effected by disclosure of ... names and addresses” as “minimal.” Id. at 1137. Against this privacy interest, we weighed the public interest to determine whether disclosure “would constitute ... [a] clearly unwarranted invasion of privacy.” 5 U.S.C.A. § 552(b)(6). “[M]indful ... that any consideration of exemptions under FOIA begins with ‘a well-known presumption in favor of disclosure,’” Dep’t of the Navy, 840 F.2d at 1135, we accorded weight to the public interest found in section 7101(a) of the Labor Statute, id. at 1136-37, and concluded that it outweighed the employees’ meaningful privacy interest. Id. at 1137. Ruling disclosure available under the FOIA exception, we declined to address the routine use exception.

In its subsequent decision in Dep’t of Justice v. Reporters Committee, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), the Supreme Court expanded on the character of the public and privacy interests to be balanced under the FOIA. There the Reporters Committee filed a FOIA request for the compiled criminal record (“rap sheet”) of an individual involved in government contracting. At issue was whether disclosure of that individual’s rap sheet to the requesters “ ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy’ within the meaning of [Exemption 7(C) of the FOIA]. 5 U.S.C. § 552(b)(7)(C) (1982 ed„ Supp. V)”. Reporters Committee, 489 U.S. at 751, 109 S.Ct. at 1470.

The requester argued that because the information contained in the rap sheets was of public record, albeit scattered in courthouses and police departments nationwide, the individual’s privacy interest was minimal. Rejecting a “cramped” notion of privacy that because the information in the rap sheet was publicly available an individual retains no privacy interest in his or her rap sheet, the Court explained that privacy interests “encompass the individual’s control of information concerning his or her person.” 489 U.S. at 763, 109 S.Ct. at 1476. A “web of federal statutory and regulatory provisions,” including the Privacy Act, and supplemented by state laws, that restrict rap sheet dissemination and other compiled computerized information served to bolster the individual’s privacy interest. Id. at 764-65, 109 S.Ct. at 1477; see Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (a centralized computer file of persons who have been prescribed and have obtained “certain drugs for which there is both a lawful and an unlawful market,” threatens privacy).

The Court also relied upon an Exemption 6 case, United States Dep’t of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), to analyze the privacy interests in a rap sheet. In Rose, the Court found that the disclosure of case summaries of Air Force cadets’ disciplinary reviews, redacted to eliminate identifying information would not be “clearly unwarranted.” Id. at.380-81, 96 S.Ct. at 1608. Although significant, the cadets’ privacy interests were outweighed by the “clearly unwarranted” balance of Exemption 6 and the policy of disclosure underlying the FOIA. In Reporters Committee the Court reasoned that if a cadet has a privacy interest in “once public but [possibly] ‘wholly forgotten’ [past discipline], the ordinary citizen surely has a similar interest in the aspects of his or her criminal history that may have been wholly forgotten.” 489 U.S. at 769, 109 S.Ct. at 1479.

Against this defined privacy interest, the Court noted that the FOIA advocated a general philosophy of full agency disclosure concerning agency decision-making, subject to nine specifically enumerated exemptions. 5 U.S.C.A. § 552{b)(l)-{9). The Court stated that Exemption 7(C) prohibited disclosure in that case and expressly stated that it had no occasion to address Exemption 6. Reporters Committee, 489 U.S. at 762 n. 12, 109 S.Ct. at 1475 n. 12.

In balancing the interests under Exemption 7(C), the Court attempted to ascertain what “warrants” an invasion of privacy. Id. at 771, 109 S.Ct. at 1480. First, absent a claim of privilege, the identity of the requesting party has no bearing on a FOIA request. Id.; see also Landano v. Dep’t of Justice, 956 F.2d 422 (3d Cir.1992) (following Reporters Committee); Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir.1977). Second, the FOIA was enacted in order to provide information regarding “what the government is up to” rather than information concerning individuals. Reporters Committee, 489 U.S. at 772-73, 109 S.Ct. at 1481. Balancing the heavy privacy interest against the minimal interest of the requester in information which revealed nothing about “what the government is up to,” the Court concluded that Exemption 7(C) prohibited disclosure. Id. at 780, 109 S.Ct. at 1485.

In one post-Reporters Committee case upon which the Navy relies, FLRA v. U.S. Dep’t of Treasury, 884 F.2d 1446 (D.C.Cir. 1989) (“Treasury”), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 864, 107 L.Ed.2d 948 (1990), the Court of Appeals for the D.C. Circuit revisited the home addresses disclosure issue in light of Reporters Committee. Distinguishing pre-Reporters Committee cases because they weighed the “special public interest in advancing collective bargaining as an aspect of the disclosure value, ... the clinching value,” Treasury, 884 F.2d at 1451, that court relied upon Reporters Committee to characterize the public interest as confined to the FOIA’s purpose of revealing governmental activities and expressly rejected an evaluation of the public interest “adjusted in light of” the Labor Statute’s policy of advancing collective bargaining. Id. at 1451, 1453. Weighing the public interest in disclosure as something slightly more than “nothing,” that court adhered to its prior view that a federal employee’s privacy interest in his address is substantial and balanced the interests against disclosure. Id. at 1453; see National Ass’n of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C.Cir. 1989) (NARFE), cert. denied, 494 U.S. 1078, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990).⁸

Subsequently, in United States Dep’t of the Navy, Portsmouth Naval Shipyard, 37 F.L.R.A. (No. 39) 515 (1990) (“Portsmouth ”), enforcement denied, 941 F.2d 49 (1st Cir.1991), the FLRA considered and rejected the reasoning of Treasury, perceiving that its task was to “harmonize” the Labor Statute, the Privacy Act and the FOIA. In so doing, the FLRA distinguished Reporters Committee as inappo-site to disclosure sought under the Labor Statute, reasoning that requests under section 7114(b)(4) of the Labor Statute cannot be evaluated without recognizing the identity of the requesting party and the interrelated rights and obligations imposed upon the unions by the Labor Statute. 37 F.L.R.A. (No. 39) at 526-27; see United States Dep’t of Health and Human Services v. FLRA, 833 F.2d 1129, 1135-36 (4th Cir.1987), cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); 5 U.S.C.A. § 7101(a) (imposing upon the union duties of fair representation, collective bargaining with employers, and providing disclosure information necessary to assist the implementation of these duties).

After refuting the contention that the Labor Statute requires a FOIA analysis divorced from the public interests of the Labor Statute, the FLRA maintained that the FOIA lacks statutory standards for characterizing the competing privacy and public interests to be weighed and that courts should employ discretion in determining the relevant public and private interests including reference to law outside the FOIA. Portsmouth, 37 F.L.R.A. (No. 39) at 530. Moreover, the FLRA noted that the privacy interest in one’s home address is less compelling than one’s privacy interest in a rap sheet, distinguishing Reporters Committee, and also had little commercial value. Id. at 532. Because the order under review incorporated Portsmouth, its reasoning is subject to our review.

V.

In order to weigh whether disclosure of home addresses would be “clearly unwarranted” under Exemption 6 of the FOIA, it is necessary to identify the competing privacy and public interests. We will evaluate each seriatim and then turn to balancing them.

A.

We have previously concluded that individuals retain a “meaningful interest in the privacy of information concerning their homes.” Dep’t of the Navy, 840 F.2d at 1136; see International Brotherhood of Electrical Workers, Local Union No. 5 v. United States Dep’t of Housing and Urban Development, 852 F.2d 87, 89 (3d Cir. 1988); see also Wine Hobby U.S.A., Inc. v. IRS, 502 F.2d 133, 136-37 (3d Cir.1974) (finding that the privacy interest in one’s home address far outweighs an admitted “public interest” limited to “private commercial exploitation”). That “individuals have some privacy interest in their home addresses,” we acknowledged, but we also recognized that “the invasion of privacy effected by such disclosure is not as serious as it would be by the disclosure of more personal information.” Dep’t of the Navy, 840 F.2d at 1136. Indeed, when balanced against the public interest served by disclosure, we found the invasion of privacy by disclosure of home addresses to be “minimal.” Id. at 1137.

Reporters Committee does not alter our previous characterization of one’s privacy interest in a home address as meaningful. Reporters Committee evaluated an individual’s privacy interest in his or her rap sheet revealing all arrests, criminal charges and conviction. On its face this information merits a greater privacy interest ranking than one’s home address because of its potential for embarrassment and humiliation. Home addresses, by contrast, warrant a lesser degree of privacy because they do not implicate embarrassing or humiliating facts. Moreover, Reporters Committee also found further support for its finding of a substantial privacy interest in the “web” of federal and state laws restricting rap sheet dissemination. No such “web” of laws restrict dissemination of home addresses.

Our previous determination that home addresses implicate a meaningful privacy interest remains valid after Reporters Committee. Without more, such as the statutory and regulatory protections afforded rap sheets, we adhere to our assessment of the privacy interest as “meaningful” in Dep’t of the Navy.

B.

The Navy contends that Reporters Committee alters the character of the public interest to restrict FOIA disclosure to information revealing “what the government is up to” regardless of the purposes or identity of the requesting party. If, as the Navy argues, Reporters Committee applies to the Union’s request for home addresses made under section 7114(b) of the Labor Statute, then an assessment of the public interest cannot take into account the degree to which access to home addresses enhances the ability of a union to engage in collective bargaining, and the purpose of the Labor Statute to promote that activity. This would be true because the disclosure of home addresses reveals nothing directly about “what the government is up to.”⁹ If this is so, according to the Navy, a public interest of “zero” is clearly outweighed by a meaningful privacy interest.

Reporters Committee addressed a FOIA request under Exemption 7(C) and as the Intervenor, American Federation of Government Employees, AFL-CIO, points out,

[Reporters Committee ] did not reevaluate or even address the [Labor Statute] under which this request for information was sought; it did not address or apply the Privacy Act which is the statute that is asserted to deny the access; nor did it apply or reference the relevant exemption (b)(6) of the FOIA.

That case did not present an occasion to evaluate the Labor Statute’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 Treasury, 884 F.2d at 1453.

We recognize that in the context of the case before it, the Supreme Court suggested in Reporters Committee that the identity or purpose of a requester is immaterial when a request is made under the FOIA. Reporters Committee, 489 U.S. at 771., 109 S.Ct. at 1480; see Landano, 956 F.2d at 428; Masonic Homes, 556 F.2d at 220 (“we must consider the public benefit that would result from the disclosure, to [the requester] or to anyone ... ”). This case is different because here it is the identity of the requesting party — as an exclusive bargaining representative — under the Labor Statute that authorizes the union to invoke the statutory disclosure provision. As amicus curiae notes, “the [Navy’s] argument has the anomalous effect of requiring [us] to rule ‘clearly un warranted’- under one statute (FOIA) a disclosure that Congress has determined to be clearly warranted under another law (5 U.S.C.A. § 7114(b)(4)).” In view of this dysfunction and the statutory public interest in collective bargaining, it is improbable that Congress intended such an incongruous result. See also Treasury, 884 F.2d at 1457 (Ruth Bader Ginsburg, J., concurring).

Although Treasury held that “the identity of the requesting party has no bearing on the merits of his or her FOIA request,” the Court of Appeals for the D.C. Circuit also stated somewhat paradoxically:

But the statement 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 passage 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.

Treasury, 884 F.2d at 1453 (emphasis added).

The Labor Statute provides for collective bargaining with the government as an employer, in contrast to the FOIA’s theory of providing for disclosure of governmental activity. Therefore, the issue of whether disclosure of home addresses to the exclusive bargaining representative is in the public interest differs depending upon the statute under which disclosure is sought. See United States Dep’t of Health and Human Services v. FLRA, 833 F.2d 1129, 1135-36 (4th Cir.1987) (distinguishing between disclosure sought under the FOIA and the Labor Statute), cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988). Thus, the theory underlying FOIA disclosure, as represented in Reporters Committee, is inapplicable in disclosure cases sought under the Labor Statute. As the Intervenor states,

... it suggests total repudiation of the policies of the [Labor Statute] from which access to this information is sought. The analysis does not begin and end with the Privacy Act and FOIA, as the [Navy] asserts, but it entails special considerations embodied in the [Labor Statute] which furnishes the exclusive representative this special right to information from the Agency as employer, including a recognition of the significant public interest in collective bargaining.

C.

Congress enacted the FOIA to reflect “ ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’ S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965).” Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). We are further reminded that “[the nine] limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the [FOIA].” Id. at 361, 96 S.Ct. at 1599. Consistent with its policy of disclosure, the FOIA “places the burden on the agency to justify the withholding of any requested documents.” Dept. of State v. Ray, - U.S. -, 112 S.Ct. 541, 547, 116 L.Ed.2d 526. In keeping with this policy, disclosure has been required even when it added nothing to the public’s knowledge of government workings. See United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 156, 109 S.Ct. 2841, 2853, 106 L.Ed.2d 112 (1989) (Blackmun, J., dissenting) (“[t]he result [of the holding requiring the federal agency to release court opinions to a commercial entity] is to impose the cost of obtaining the court orders and opinions upon the Government” and “adds nothing whatsoever to public knowledge of Government operations”).

D.

With these principles in mind, we now consider whether disclosure of home addresses to the union would constitute a clearly unwarranted invasion of personal privacy under the FOIA Exemption 6 exception to the Privacy Act. The FOIA does not provide legislative standards for evaluating competing privacy and public interests. As a result courts have played a creative role in evaluating the interests to be balanced, looking to the purpose of the FOIA, other statutes and the common law to characterize and weigh the competing interests. See, e.g., Reporters Committee, 489 U.S. at 764-65, 109 S.Ct. at 1477 (referring to the common law and numerous federal and state statutes to characterize a subject’s privacy interest in his or her rap sheet); IBEW, Local Union No. 5, 852 F.2d at 87 (defining the public interest in terms of the purposes of the Davis Bacon Act); Masonic Homes, 556 F.2d at 214 (looking to the purposes of the National Labor Relations Act to assess the public interest).

We conclude that the strong public interest in collective bargaining outweighs the employees’ meaningful privacy interest in their home addresses. Arising out of the Labor Statute’s imperative that unions must represent all employees regardless of membership, the Union’s need to communicate with nonmember employees does not constitute a clearly unwarranted invasion of their personal privacy in this context. The Union will possess their home addresses in order to send home mailings to nonmember employees for their information and participation. We thus hold that this minimal invasion of privacy is not clearly unwarranted in light of Congress’ express promotion of federal sector collective bargaining.

The Navy argues that because the FOIA provides for disclosure to “any person,” 5 U.S.C.A. § 552(a)(3), disclosure to the union would likewise permit access to federal employees’ home addresses by any person armed with paper and pencil to make a FOIA request. Our holding is much more. limited, however. We emphasize that only an exclusive bargaining representative may request home addresses under the Labor Statute. Any other person would need to proceed directly under the FOIA, to which the public interest parameters of Reporters Committee rather than the Labor Statute would apply. For this reason, the dissent’s concern that our holding will make home addresses available to any malfeasant is unfounded.

The Navy and the dissent also sound an alarm concerning the uses to which the union might put the home addresses. The dissent foresees that the disclosure of nonmember employees’ home addresses to the Union will harm these employees’ privacy interests by exposing those employees to the “probability of solicitations, pressures for membership in an organization they do not wish to join, and obvious safety and harassment risks.” While we are sensitive to these in the abstract, they simply command no weight in this case.

First, there is no doubt that disclosure of home addresses to the Union will add to the volume of mail received by nonmember employees. In many, if not all cases, these employees will not wish to receive Union mailings. Nevertheless, we are unpersuaded that unsolicited and undesired mailings from a union pose any greater an invasion of privacy than similar mailings from mail order houses and the like. If unsolicited union mailings are truly of no interest to a nonmember recipient, the intrusion can be rectified by simply tossing the literature into the garbage can. In this manner a nonmember would have an opportunity to scan informational material sent by the Union in an atmosphere free of any outside pressure or oversight. The invasion of an employee’s privacy interest is minimal.

There is no indication on this record that the union would disseminate these home addresses to commercial enterprises or that employees would suffer anything more than some perhaps unwanted union mailings should the union obtain their home addresses. Nonetheless, the Navy asserts that a list of employees’ names and addresses by bargaining unit would have value to commercial enterprises who could link a particular trade with a regular federal paycheck. Although this may be true, the Union has sought this information for collective bargaining purposes which implicates a statutorily defined public interest. Thus this case differs significantly from Wine Hobby, in which the stipulated “public interest” was strictly commercial, limited solely to acquiring a home address mailing list compiled according to family income and wine-making interest. Wine Hobby, 502 F.2d at 137; see also NARFE, 879 F.2d at 873 (seeking names and addresses of retired federal workers receiving annuities for membership drive). Lastly, unwanted mailings are an unfortunate fact of our daily existence; our annoyance with them does not rise to a privacy interest that outweighs a statutorily mandated disclosure interest.

Second, the dissent frets that the Union may visit pressures for membership upon nonmember employees. The Labor Statute clearly and unambiguously answers this concern, proscribing, as an unfair labor practice, a union from “inter-fer[ing] with, restrainpng], or coercpng] any employee in the exercise by the employee of any right under this chapter.” 5 U.S.C. § 7116(b)(1). Just as clearly, an employee’s rights include “the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal ...” 5 U.S.C. § 7102 (emphasis added). Therefore Union pressure for membership that transgresses an employee’s right to refrain freely from joining a union would be sanctioned as an unfair labor practice.

Third, the dissent reveals unwarranted apprehension when referring to “obvious safety and harassment risks.” The dissent errs first in widening the Union’s access to these addresses under the Labor Statute to any person’s access under the FOIA. Our holding is not so far-reaching. Second, a Union misusing home address information for harassment would, as in a case of pressuring a nonmember to join, be subject to sanctions for unfair labor practices. Third, as a factual matter the employees whose addresses are subject to disclosure fall outside the category of managerial and supervisory employees and are least likely to attract job-related harassment. , See 5 U.S.C. § 7103(a)(2)(B)(iii). Moreover, individuals bent on mischief have numerous means of obtaining home addresses at their disposal, for example, one could check phone book listings, deed recordings, or even follow an employee home from work.

The Navy’s and the dissent’s speculation far overreaches the purpose for which the information is sought — the execution of the union’s statutory obligations. As the FLRA points out, moreover, employees can request that the union not release their home addresses and request that the FLRA issue a cease and desist order against the union for misuse of the information. See 5 U.S.C.A. § 7118 (authorizing the FLRA to issue cease and desist orders in appropriate circumstances). If desired, the union’s safekeeping of home addresses could be a subject for collective bargaining or a condition upon which the union retains its certification- as an exclusive representative. Finally, the FLRA could condition the uses to which a union may put home addresses. See, e.g., Treasury, 884 F.2d at 1450; Farmers Home II, 23 F.L.R.A. (No. 101) at 798.

Our conclusion is further supported by the fact that private sector labor unions are routinely provided the same home address information. NLRB v. Associated General Contractors of California, Inc., 633 F.2d 766 (9th Cir.1980), cert. denied, 452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed.2d 418 (1981); NLRB v. Pearl Bookbinding Co., Inc., 517 F.2d 1108 (1st Cir.1975); United Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir. 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); Prudential Ins. Co. of Am. v. NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); Standard Oil Co. of Calif., Western Operations, Inc. v. NLRB, 399 F.2d 639 (9th Cir.1968); cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (enforcing NLRB’s ruling that disclosure of names and home addresses was relevant and necessary to candidate unions prior to an election); NLRB v. Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967) (employer required to provide information needed by union to assess whether to file a grievance). Although conclusive weight need not be given to private sector labor relations precedent, cf. Fort Stewart Schools v. FLRA, 495 U.S. 641, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990) (Labor Statute is not to be read in pari materia with NLRA), nevertheless, we may look to private sector labor cases for guidance. Dep’t of the Navy, 840 F.2d at 1138; see Labor Statute, 5 U.S.C.A. § 7101(a)(1) (1982) (“[Experience in both, private and public employment indicatés that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing ... safeguards the public interest”).

We need not tarry long on the Navy’s rebuttal that the NLRB does not presump,-tively award names and addresses as does the FLRA. See, e.g., Fairfield Publishing Co., 275 N.L.R.B. (No. 2) 7 (1985) (request for names and duties of nonmember employees remanded for further factfinding); Magma Copper Co., 208 N.L.R.B. (No. 53) 329 (1974) (same; names and addresses). For the reasons advanced in Part III, we will defer to the FLRA’s determination that home addresses are always relevant and necessary within the meaning of section 7114(b).

Finally, it is important to note that our holding that federal employers must disclose home addresses under the FOIA exception to the Privacy Act does not eviscerate the protections afforded federal employees by the Privacy Act. The Privacy Act will still protect from disclosure different kinds of information to which a greater degree of privacy attaches. Moreover, for certain categories of information such as wage scales and disciplinary records, an employee’s privacy interest, where feasible, may be safeguarded by redacting from personnel records the names and social security numbers of employees. See Ray, 112 S.Ct. at 541 (authorizing disclosure of records after redaction of names, addresses and other identifying details); Rose, 425 U.S. at 352, 96 S.Ct. at 1592 (same); IBEW, Local Union No. 5, 852 F.2d at 87 (requiring the redaction of social security numbers).

VI.

In the case under review, the FLRA also held that home addresses may be disclosed under the routine use exception to the Privacy Act, 5 U.S.C.A. § 552a(b)(3). Navy Ships Parts Control Center, 37 F.L.R.A. (No. 58) at 723; Portsmouth, 37 F.L.R.A. (No. 39) at 537-41. A “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.A. § 552a(a)(7).¹⁰ Each agency that maintains records shall publish in the Federal Register “upon establishment or revision a notice of the existence and character of the system of records” to include “each routine use of the records contained in the system, including the categories of users and the purpose of such use.” 5 U.S.C.A. § 552a(e)(4)(D) (West 1977 & 1991 West Supp.) (emphasis added). The Office of Personnel Management, the agency maintaining the home address records at issue here,¹¹ has promulgated the following routine use notice:

11 j. To disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.

Privacy Act of 1974; Publication of Notices of Systems of Records and Proposed New Routine Use, 49 Fed.Reg. 36,949; 36,-956 (Sept. 20, 1984) (emphasis added). This regulation, in turn, requires that we inquire into the meaning of the language “relevant and necessary.”

The OPM first provided its restrictive interpretation of “necessary” in similar home addresses before the Court of Appeals for the D.C. Circuit in an amicus brief, which stated:

Again, assuming, arguendo, that the information falls within the general category of information that is associated with collective bargaining, the inquiry must shift to the degree of necessity that must exist before the agency must provide that information. A major component in determining the labor organization’s need for the names and home addresses of bargaining unit employees is whether adequate alternative means exist for contacting them. If adequate alternative means exist, we submit that no need for that data has been proven. Thus, we urge the Authority to adopt a standard of need composed of a “no adequate alternative means” test.

OPM Amicus Brief to the FLRA at 9 (July 14, 1986) (excerpted at Addendum D to the Brief of the Dep’t of the Navy). By subsequent letter to Assistant Attorney General Richard Willard, dated nearly a year later, then-OPM Director Constance Horner verified that the OPM’s amicus brief set forth the agency’s official interpretation to remain in effect pending “the formal revision and issuance of a new guideline [in the Federal Personnel Manual].” Letter of OPM Director Horner (June 25, 1987) (provided in Addendum E to the Navy’s brief). In her letter Horner summarized, “If adequate alternative means exist for communicating with bargaining unit employees, disclosure of home addresses is not ‘necessary,’ and the routine use does not apply.” Id.¹²

Despite Director Horner’s 1987 representation that the OPM would promptly issue a new interpretation consistent with the position taken in the amicus brief and Hor-ner’s ample opportunity to have done so, the OPM has failed to alter the existing notice of routine use or publish its interpretation. In fact, the OPM reissued its routine use notice in the Federal Register on February 5, 1990, without any alteration. Compare Privacy Act of 1974, 49 Fed.Reg. 36,956 (Sept. 20, 1984) (earlier routine use notice) with id. 55 Fed.Reg. 3802-03, 3839-40 (Feb. 5, 1990) (later unchanged routine use notice); see also Portsmouth, 37 F.L.R.A. (No. 39) at 538. We also note that contrary to Director Horner’s representation that “I have instructed the appropriate staff of this Office to take action to promptly issue Appendix D to Chapter 711,” Horner letter of June 25, 1987 (emphasis added), the OPM’s Federal Personnel Manual still lacks any interpretation of routine uses. See Office of Personnel Management, Federal Personnel Manual, Chapter 711 (June 24, 1986) (App. D is reserved). Transcript of Oral Argument at 32; Treasury, 884 F.2d at 1454.

For these reasons, we conclude that the amicus brief interpretation has no published source. As counsel for the FLRA aptly articulated at oral argument, “One would have to be a student of home address litigation before the [FLRA] to know OPM’s view_” Transcript at 37.¹³

The parties have not debated whether the amicus brief position constitutes an interpretive or substantive rule, apparently agreeing that the rule was intended only as OPM’s interpretation of its regulation. Other courts of appeals to consider the issue have also cast the rule as interpretive. See Treasury, 884 F.2d at 1454-55 (evaluating whether OPM’s “interpretation” is a reasonable one); Dep’t of the Navy (Portsmouth), 941 F.2d at 59. Thus, although we are troubled by its substantive overtones, we will evaluate the OPM’s amicus brief position as an interpretive rule. In any case, our determination remains the same: until the OPM publishes its interpretation in a manner sufficient to place the public on notice of both the existence and content of that interpretation, we will not defer to the OPM’s interpretation.¹⁴

The Administrative Procedure Act excepts interpretive rules from the affirmative requirement of notice and comment rulemaking. 5 U.S.C.A. § 553(b)(3)(A). Thus no statutory imperative requires that an interpretive rule be promulgated by notice and comment. One scholar, Professor Kenneth Culp Davis, theorizes that in the APA Congress set only minimal requirements for rulemaking and did not intend to prohibit courts from requiring more than that statutory minimum where the interest of justice would be served. Kenneth Culp Davis, Administrative Law Treatise, § 6:31 (2d ed.1978). The notion that the interest of justice or fairness requires rule-making most often comes into play when an interpretive rule, which ordinarily would not carry the force of law, is intended to have a substantial impact upon a regulated concern. See, e.g., Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 669 (4th Cir.1977), cert. denied sub. nom, Reynolds Metal Co. v. Brown, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84 (1978). Albeit in the context of discussing a substantive rule, we have previously acknowledged the importance of notice and comment rulemaking:

Section 553 [of the APA] was enacted to give the public an opportunity to participate in the rule-making process. It also enables the agency promulgating the rule to educate itself before establishing the rules and procedures which have a substantial impact on those regulated.

Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3d Cir.1969); see also Independent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 144 (D.C.Cir.) (“elementary fairness may well require that reasonable opportunity be given for submission of views by those materially affected ...”), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971).¹⁵

The OPM’s interpretive rule is clearly designed to have a measurable impact. Cf. Daughters of Miriam Ctr. for the Aged v. Mathews, 590 F.2d 1250, 1255-56 n. 9 (3d Cir.1978) (examining the intent of the agency to characterize a rule as substantive or interpretive). The suggested operation of OPM’s interpretation would be binding upon the FLRA and would alter the outcome in cases in which a union could not prove the lack of alternative methods of communication with nonmember bargaining unit employees. The OPM’s rule would not serve as guidance to the FLRA in the adjudication of whether home addresses are “necessary” and does not leave any discretion to the FLRA in the determination of what is “necessary.” The rule, by its terms, therefore, would operate as a prohibition against disclosure unless no alternative avenues of communication are proven to be available.

The FLRA urges that we should not accord deference to the OPM’s interpretation because the OPM does not possesses any expertise on the subject of federal sector labor relations. Rather, the FLRA argues, we should defer to the FLRA’s reasonable construction of OPM’s routine use regulation. In support of this view, the FLRA points to the linguistic similarity between the “necessary” term of section 7114(b)(4)(B) and the “relevant and necessary” language of the routine use regulation and suggests that its expertise with respect to the former ought also to be deferred to in interpreting the latter.¹⁶

Neither of the FLRA’s contentions has merit. The OPM, as the agency maintaining personnel files, has a clear legislative mandate to identify routine uses of information within its possession under the Privacy Act. 5 U.S.C.A. § 552a(e)(4). The fact that the FLRA adjudicates questions of routine use when they arise under Labor Statute requests does not require that we choose the FLRA’s interpretation of what is “necessary” within the routine use in preference to the OPM’s interpretation. The recent guidance of Martin v. Occupational Safety and Health Review Comm’n, - U.S.-, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991), suggests that we ought to accord deference to the agency entrusted by Congress with rulemaking functions. In Martin, the Secretary of Labor and the respondent Commission had issued conflicting interpretations of an ambiguous regulation. The Court addressed the question of which interpretation should properly be accorded deference given the fact that in the Occupational Health and Safety Act, Congress delegated rulemaking and enforcement functions to the Secretary and adjudicative functions to the Commission. Reasoning that the Secretary, as the rulemaker, was more likely to have established policymaking expertise in contrast to the Commission, which has powers traditionally associated with that of a reviewing court, the Court ruled that deference should be accorded the Secretary’s interpretation. In keeping with the principles of Chevron, we must accord deference to the reasonable construction of the agency to which Congress entrusted responsibility. Accord Puerto Rico Maritime Shipping Auth. v. Valley Freight Sys., Inc., 856 F.2d 546, 552 (3d Cir.1988).

Nevertheless, we will not defer to an agency interpretation of its own unchanged regulation that is confined to an amicus brief and unpublished letter because this method of dissemination is wholly inadequate to notify the public of the agency’s interpretation. We do not judge this interpretive rule to be reasonable as disseminated. Limited to this dissemination, discovery of this interpretation by an outside party would be extremely difficult if not impossible. If an agency seeks to apply a formal interpretation to future cases, fundamental fairness dictates that the affected public have at a minimum some constructive notice of the existence and content of that interpretation. In this case the OPM’s method of dissemination does not meet even this minimal requirement of fair notice.

We also note that we lack even the assurance afforded to the Court of the Appeals for the D.C. Circuit when it considered the home address litigation and received the OPM’s amicus brief interpretation directly. In this case the OPM is not represented in this litigation and we are asked to rely upon former Director Hor-ner’s five and six year-old interpretation, which also contain a representation, still dormant, that the interpretation will be formally revised and reissued. Director Hor-ner left the OPM several years later without having followed through with her promise to formally revise the OPM’s interpretation “promptly.” Nor has her successor fulfilled that promise. In the absence of any subsequent action that would affirm the OPM’s current adherence to an interpretation set forth in six-year old litigation and a letter, we will not defer to a stale and possibly abandoned interpretation.

We are uncertain that even the OPM would now advance its amicus brief interpretation. Thus, even were we to agree with our sister courts of appeals in the District of Columbia and First Circuits that the OPM’s amicus brief interpretation combined with Horner’s letter constitutes the functional equivalent of an interpretive rule deserving of deference, see Treasury, 884 F.2d at 1456; Dep’t of the Navy (Portsmouth), 941 F.2d at 59-60, we are constrained to hold that the OPM’s failure to fulfill its promise to publish this interpretation after a span of nearly five years erodes our confidence that the interpretation is due any deference. For these reasons the OPM’s amicus brief interpretation resembles an “agency litigating positio[n] that [is] wholly unsupported by regulations, rulings, or administrative practice” to which the principle of Chevron does not apply. Bowen v. Georgetown University Hospital, 488 U.S. 204, 212, 109 S.Ct. 468, 473, 102 L.Ed.2d 493 (1988).¹⁷

Without an alternative interpretation of the routine use notice, we find that the FLRA’s determination that home address litigation is “relevant and necessary” to the exclusive representative’s collective bargaining efforts is not arbitrary and capricious. Clearly relevant, the FLRA has made a reasoned determination that home addresses are necessary under the Labor Statute. We will therefore enforce the order of the FLRA with respect to disclosure under the routine use exception to the Privacy Act as well.

VII.

We will enforce the order of the FLRA and deny review to the Navy.

Circuit Judge ROTH does not join Part V of this opinion but concurs in the result to enforce the order of the FLRA and deny review to the Navy.

Footnotes

1

. Section 701(a)(16) of Title VII of the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1192, 5 U.S.C.A. § 7103(a)(16) (1980), also known as the Federal Service Labor-Management Relations Statute (the Labor Statute).

2

. The units involve the employees of the Navy Ships Parts Control Center, Navy Fleet Material Support Office, Defense Depot, NAVSEA Logistics Center, and the Navy Publishing and Printing Service. The Defense Depot is not a party in this action.

3

. Since Portsmouth, home address cases have also been appealed to the Courts of Appeals for the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and District of Columbia Circuit. These cases likewise involve review of FLRA decisions which incorporated the reasoning of the Portsmouth case. The Court of Appeals for the D.C. Circuit has issued judgment orders in its cases pursuant to its pre-Ports-mouth decision of FLRA v. United States Dep’t 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 (1990). United States Dep’t of the Interior v. FLRA, Nos. 90-1540, 90-1541, 90-1057, 1991 WL 80511 (D.C.Cir. May 2, 1991). The Courts of Appeals for the First, Second and Sixth Circuits have granted the Navy’s petitions for review and have denied enforcement. FLRA v. United States Dep’t of the Navy, 941 F.2d 49 (1st Cir. 1991); FLRA v. United States Dep’t of Veterans Affairs, 958 F.2d 503 (2d Cir.1992); FLRA v. Dep’t of the Navy, 963 F.2d 124 (6th Cir.1992). Panels of the Courts of Appeals for the Fourth and Ninth Circuits, conversely, have granted enforcement to the FLRA. FLRA v. Dep’t of Commerce, 954 F.2d 994 (4th Cir.1992), vacated and rehearing en banc granted, 966 F.2d 134 (4th Cir.1992); FLRA v. United States Dep’t of the Navy, 958 F.2d 1490 (9th Cir.1992). Appeals are still pending before panels of the Courts of Appeals for the Fifth, Seventh, Eighth, Tenth and Eleventh Circuits and the en banc Court of Appeals for the Fourth Circuit.

4

. In full, the disclosure provision of 5 U.S.C.A. § 7114(b)(4) reads as follows:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation—

******

(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—

(A)which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; ...

5

. Although the Navy clearly challenged the FLRA’s per se approach in its papers before the FLRA, J.A. at 58 ¶ 8(c) (Complaint); 54 ¶ 8(c) (Answer); 27 (Navy’s exceptions to the ALJ’s decision), its position before us is somewhat difficult to discern. While purporting not to argue the question before the court in banc, counsel for the Navy did state that she intended to preserve it for possible review on certiorari to the Supreme Court. Transcript of Oral Argument at 12. Moreover, in its brief, the Navy asserts that it "ha[s] consistently maintained that the information at issue here is not ‘necessary' for ‘collective bargaining'.... While we preserve this issue, we do not ask the Court to reexamine it at this time_” Navy’s Brief at 15 n. 8. In light of the Navy’s consistent position before the FLRA and despite its conflicting indications before us, we conclude that the Navy has adequately presented this issue for our review.

6

. The FLRA had previously taken the position that the disclosure of home addresses is "prohibited by law" under the Privacy Act. Farmers Home Administration Finance Office, 19 F.L.R.A. (No. 21) 195 (1985) (Farmers Home I). Upon review, the Courts of Appeals for the D.C. and Eighth Circuits remanded their cases to the FLRA for consideration of the routine .use exception to the Privacy Act but the Court of Appeals for the Second Circuit reversed, holding that disclosure was warranted under the FOIA exception to the Privacy Act. American Fed’n of Gov't Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir.1986) (AFGE). Balancing the "not particularly compelling” privacy interest of employees in their home addresses against the expressed public interest in collective bargaining under the Labor Statute, the court concluded that disclosure was warranted.

7

. A number of courts also ruled consistently with Farmers Home II that home addresses were disclosable under the FOIA exception to the Privacy Act. United States Dep’t of the Air Force v. FLRA, 838 F.2d 229 (7th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); United States Dep't of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir.1988), vacated on other grounds, 488 U.S. 1025, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989); United States Dep’t of Health and Human Services 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); AFGE, 786 F.2d 554 (2d Cir. 1986).

8

. In NARFE, the D.C. Circuit applied Reporters Committee to a FOIA request by the National Association of Retired Federal Employees for names and addresses of recently retired federal employees. Exemption 6 prohibited disclosure because there was no public interest in disclosure after Reporters Committee. 879 F.2d at 879. It noted that the information sought, addresses of federal annuitants, had significant commercial value and concluded that the identity of the requesting party was irrelevant. Id. Thus, a "significant” privacy interest outweighed the absence of a public interest in disclosure.

9

. It is conceivable that the disclosure of home addresses could further a public interest derivatively, for example, by enabling the union to interview employees at their homes to discover agency activity or misconduct. The Supreme Court recently declined to address the validity of a "derivative use” theory of public interest, United States Dep't of State v. Ray, - U.S.-, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), as has a panel of this court. Landano, 956 F.2d 422 (3d Cir.1992). Because a determination of this issue is unnecessary to the result in this case, we also decline to consider the derivative use theory-

10

. The Navy has not challenged that disclosure of home addresses would not be ‘‘compatible with the purpose for which it was collected."

11

. Although the AU specifically found that the Navy physically maintained the home addresses sought, Navy Ships Parts Control Center, No. 2-CA-80243 (F.L.R.A. Sept. 21, 1988) (AU's Decision and Order) (reprinted at J.A. 19, 22 ¶ 17), there is no dispute that the OPM retains responsibility for the information. Farmers Home II, 23 F.L.R.A. at 794.

12

. This sequence of events suggests that Director Horner advanced the amicus brief as an official agency interpretation in 1987 in response to the FLRA’s holding in Farmers Home II that home addresses must be disclosed under the routine use exception.

13

. We note in passing that there is no contention that the OPM’s amicus brief definition of "necessary" for a routine use applies to requests for information other than home addresses. In the event that it might apply to other kinds of information, we are especially concerned that affected persons would not have notice of either the existence or content of the OPM’s interpretive rule.

14

. An interpretive rule is one in which an agency asserts its construction of a statute or a regulation. As such, interpretive rules do not have the force and effect of law. United States v. Walter Dunlap & Sons, Inc., 800 F.2d 1232, 1238 (3d Cir.1986). Substantive rules, on the other hand, do carry the force of law and are promulgated by an agency to implement a statute. Id.; Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013-15 (9th Cir.1987). In determining whether a rule is interpretive or substantive we may look to the nature of the rule: "If the rule in question merely clarifies or explains existing law or regulations, it will be deemed interpretive.” Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir.1989); see also Batterton v. Marshall, 648 F.2d 694, 705 (D.C.Cir.1980). Substantive or legislative rules by contrast, have substantive legal effect. Batterton, 648 F.2d at 702. “They cannot be set aside by the courts unless found ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.’ 5 U.S.C.A. § 706(2)(A) (1976).’’ Id. The Court of Appeals for the D.C. Circuit described an interpretative rule in Batterton in the following way:

Non-binding action, in contrast, merely expresses an agency’s interpretation, policy, or internal practice or procedure. Such actions or statements are not determinative of issues or rights addressed. They express the agency’s intended course of action, its tentative view of the meaning of a particular statutory term, or internal housekeeping measures organizing agency activities. They do not, however, foreclose alternate courses of action or conclusively affect rights of private par-ties_ Unlike legislative rules, non-binding agency statements carry no more weight on judicial review than their inherent persuasiveness commands.

Id. at 702; see General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 410, 50 L.Ed.2d 343 (1976). In Batterton the court recognized that the distinction between legislative and “nonbinding" rules may often have “fuzzy perimeters" confounding easy categorization. Id. at 702. The court therefore suggested looking to the policy behind the APA of the notice and comment rulemaking to categorize the rule properly.

15

. We note that notice and comment rulemak-ing appears particularly appropriate in this case. It would seem advisable to have OPM’s interpretation of its routine use notice properly recognize and incorporate the FLRA’s considerations, as well as the considerations of other interested federal agencies, of the circumstances under which, for the carrying out the responsibilities of each such agency, access to information may be “relevant and necessary.”

16

. The FLRA explains that the "relevant and necessary" language of the routine use first appeared in 1975 in a rule issued by OPM’s predecessor, the Civil Service Commission. Civil Service Commission Privacy Act of 1974, 40 Fed. Reg. 54,362 (Nov. 21, 1975). This common language is not surprising in view of the fact that the Chairman of the CSC also chaired the FLRA's predecessor, the Federal Labor Relations Council. See Exec. Order 11491, § 4(a), 3 C.F.R. 861 (1966-1970 Comp.).

17

. Although the agency's interpretation in Bowen was confined to appellate counsel’s representations as distinguished from the OPM director’s own adoption of the amicus brief here, the agency’s failure to follow through with the promise made in Horner’s letter undercuts any confidence in that interpretation.