[ v51 p945 ]
51:0945(77)CA
The decision of the Authority follows:
51 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
DALLAS, TEXAS
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2437, AFL-CIO
(Charging Party/Union)
6-CA-11025
_____
DECISION AND ORDER
March 8, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.(1)
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with information pertaining to administratively investigated cases of patient abuse by the Respondent's employees, thereby failing to comply with section 7114(b)(4) of the Statute. The Judge found that the Respondent violated the Statute.
Upon consideration of the Judge's decision and the entire record, we conclude that disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a, and that, therefore, the Respondent did not violate the Statute.(2) Accordingly, we dismiss the complaint.
II. Judge's Decision
The facts are set forth fully in the attached Judge's decision and briefly summarized here. In connection with the representation of a bargaining unit employee who had received a notice of a proposed 14-day suspension for alleged verbal patient abuse, the Union requested by letter from the Respondent's Personnel Section "any and all information pertaining to administratively investigated cases of patient abuse by the Respondent's employees." General Counsel Exhibit 3. The letter stated that the "[r]equest is made in accordance with Section 7101 of Public Law 95-454 . . . as well as" the FOIA. Id.
The Respondent advised the Union that four employees had been disciplined as a result of administrative investigations concerning patient abuse and provided the Union with their names and the disciplinary actions taken against them. The Union informed the Respondent that this information was not sufficient and that it needed information concerning all administrative investigations of patient abuse by unit employees, including those that did not result in discipline, in order to make sure there was no disparate treatment among employees. The Respondent informed the Union that the information was maintained in its Quality Management Section but did not provide the information.(3) Subsequently, the Union informed the Respondent that, since it had not been provided the requested information, it could not properly represent the employee in connection with the proposed suspension.
In response to the complaint, the Respondent denied that the requested information was reasonably available, necessary, or normally maintained. The Respondent admitted that the information was not prohibited from disclosure by law, but at the same time claimed that the information "may not be available in accordance with the Privacy Act." General Counsel's Exhibit 1(h). The Respondent asserted that "if it is releasable information it is available once certain information is redacted from the record." Id. The Respondent also asserted that the information "may be of such confidentiality that it can only be disclosed as permitted by" title 38 of the U.S. Code. Id.
The Judge found that the requested information is normally maintained by the Respondent and is reasonably available and necessary within the meaning of section 7114(b)(4) of the Statute. The Judge also found that "providing the documents requested to the Union in [a form that excluded patients' identities and information] is . . . appropriate and will effectuate the purposes and policies of both the Statute and [t]itle 38 [of the U.S. Code.]" Id. at 6-7. The Judge concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply with section 7114(b)(4) and furnish the Union with the requested information.
III. Positions of the Parties
A. Respondent
The Respondent maintains that whether it had a duty to disclose the requested information must be determined under FOIA appeal procedures. The Respondent asserts that the Judge did not have jurisdiction to consider whether, under the Statute, the Respondent had a duty to disclose the requested information to the Union because the Union requested the information pursuant to the FOIA, and "[a]t no time did the Union request this information subject to 5 U.S.C. § 7114." Exceptions at 1.
In addition, according to the Respondent, the Judge's order is "overly broad and is contrary to law" because the information includes names and other personal identifiers which are subject to "the restricted disclosure provisions of the Privacy Act[.]" Id. The Respondent maintains that it is not required to release the administrative investigations under section 7114(b)(4) of the Statute because disclosure is prohibited by the Privacy Act. In this regard, the Respondent contends that the FOIA exception to the Privacy Act does not apply because the information is exempt from the FOIA's disclosure requirement on three separate grounds: Exemption (b)(3) (Exemption 3),(4) Exemption (b)(5) (Exemption 5),(5) and Exemption (b)(6) (Exemption 6).(6) With respect to Exemption 3, the Respondent asserts that the "[Veterans Administration] statutes (38 U.S.C. 7332, and possibly 38 U.S.C. 5705) prohibit disclosure under 5 U.S.C. 7114." Id. at 5. As to Exemption 5, the Respondent states that Exemption 5 "permits the [Respondent] to withhold opinions and recommendations in documents which are part of a deliberative process, such as an administrative investigation." Id. at 3. Finally, regarding Exemption 6, the Respondent argues that "[w]hen the privacy interests of employees and patients are balanced with the qualifying public interests of the collective-bargaining unit, a blanket release of information would adversely [a]ffect the employees and patients who have not consented to such a release of personal information." Id.
B. General Counsel
As a preliminary matter, the General Counsel contends that the Respondent's exceptions fail to comply with section 2423.27(a)(2) of the Authority's Regulations.(7) The General Counsel also argues that the Judge had jurisdiction to resolve whether the Respondent violated the Statute because the Union's written request for information clearly states that the data was requested under the Statute as well as the FOIA.
The General Counsel contests the Respondent's claim that disclosure of the requested information is prohibited by the Privacy Act and asserts that this claim is "contrary to Respondent's own position during the litigation of this case" that the information was not prohibited from disclosure by law. Opposition at 4. The General Counsel contends that the Respondent raised concerns only as to patients' information in the files and the Union "acknowledged that 'patients' identities and information is private' and could be excised without objection." Id. at 5. The General Counsel urges the Authority not to consider the Respondent's Privacy Act argument because the Respondent admitted, in its answer, that the information was not prohibited by law and the Privacy Act was not at issue before the Judge. According to the General Counsel, the Respondent could have raised Privacy Act issues after filing its answer, but failed to do so. The General Counsel maintains that "there is no evidence contained in the record supporting an argument that there are any interests in non-disclosure" and that the Respondent did not "offer any arguments in support of this claim in its post hearing brief." General Counsel's Supplemental Brief at 10.
Additionally, the General Counsel contends that disclosure of the requested information is not prohibited by the Privacy Act because of the FOIA exception as well as the "routine use" exception to the Privacy Act. As to the FOIA exception, the General Counsel asserts that disclosure is required by the FOIA because the information is not exempted under Exemption 3 or 6. With respect to Exemption 3, the General Counsel argues that release of the information is not prohibited by title 38 of the U.S. Code because sanitizing the information to remove patients' names satisfies the requirements of title 38 and the Union was willing to accept information sanitized in this form. With respect to Exemption 6, the General Counsel asserts that the public interest served by disclosure would outweigh any invasion of personal privacy because disclosure "would contribute significantly to public understanding of the operations or activities of the [G]overnment," and "would, in fact, shed light on the [A]gency's operations" and "on 'what the [G]overnment is up to.'" General Counsel's Statement to the Authority (GC's Statement) at 2, 3 (citing Department of Defense). According to the General Counsel, "[t]he public has a legitimate interest in information which reveals whether the agency treats similarly situated employees in a similar or disparate manner." Id. at 3. The General Counsel does not address Exemption 5 and does not make any specific arguments with respect to the "routine use" exception.
IV. Analysis and Conclusions
A. Jurisdictional Issues
1. The Respondent's Exceptions Comply With Section 2423.27(a)(2) of the Authority's Regulations
We find that the Respondent has set forth the portions of the Judge's decision to which it excepts with sufficient particularity to inform the Authority as well as the parties of the basis of the Respondent's exceptions. See Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266, 270 (1991). Consequently, we reject the General Counsel's contention that the Respondent's exceptions fail to comply with section 2423.27(a)(2) of the Authority's Regulations.
2. The Issue of Whether the Respondent Violated Section 7116(a)(1), (5), and (8) of the Statute by Failing to Comply With Section 7114(b)(4) Was Properly Presented in the Proceedings Before the Judge
The record shows that the Union's letter requesting the information informed the Respondent that the "[r]equest is made in accordance with Section 7101 of Public Law 95-454 (Oct. 13, 1978, 92 Stat. 1192) as well as the [FOIA]."(8) General Counsel's Exhibit 3. Public Law No. 95-954 (Oct. 13, 1978), 92 Stat. 1111, is the Civil Service Reform Act of 1978. Section 7101, 92 Stat. 1192, is the first section in the portion of that law entitled Federal Service Labor-Management Relations, codified at 5 U.S.C. §§ 7101-7135. By citing section 7101, the Union put the Respondent on notice that the Union sought the information under the Statute.
Moreover, the complaint alleged that the Respondent "refused to comply with 5 U.S.C. 7114(b)(4)" by failing to provide information to the Union. General Counsel's Exhibit 1(f). In its answer to the complaint, the Respondent asserted that it "complied with 5 U.S.C. § 7114(b)(4)[.]" General Counsel's Exhibit 1(h). At the hearing, the General Counsel stated the issue as whether the Respondent violated the Statute by refusing "to provide the Union with certain information which had been requested pursuant to [s]ection 7114(b)(4)[,]" Transcript at 8, and the Respondent stated the issue as whether it "failed to comply with 5 U.S.C. [§] 7116 by refusing to provide the requested information." Transcript at 11.
Thus, contrary to the Respondent's argument, the issue of whether the Respondent violated the Statute by failing to comply with section 7114(b)(4) was clearly before the Judge and the Judge had jurisdiction under the Statute to resolve that issue. See U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990). Accordingly, we reject the Respondent's exception in this regard.
3. The Privacy Act Was Raised As a Bar to Disclosure Under 7114(b)(4) in the Proceedings Before the Judge
Despite the Respondent's statement in its answer that the requested information is not prohibited from disclosure by law, we find, based on the entire record, that the issue of whether disclosure of the requested information is prohibited by the Privacy Act because such disclosure would constitute an unwarranted invasion of employees' privacy is properly before us on appeal. Throughout the proceeding, the Respondent invoked the Privacy Act as a basis for not disclosing the requested information in an unsanitized form. See General Counsel's Exhibit 1(h) (discussed supra at II); Transcript at 11 (the Respondent maintained that the Union's request for information was "too general to allow for immediate compliance due to the Privacy Act[]"); and Respondent's Post-hearing Brief at 2, 3 (the Respondent contended that "[t]he names involved in patient abuse cases are considered confidential under the Privacy Act" and "all names must be redacted before release[]"). In addition, it is clear that the Union understood that the Respondent's Privacy Act concerns applied to employees as well as patients, because a Union official testified that although the Union would accept sanitization of "patients' identities and information[,]" it would not accept sanitization of such information as to employees. Transcript at 38. We find that the Privacy Act was invoked relative to patients and employees' names and the Union was on notice that the Respondent claimed that the information was not disclosable under that law, even though the Respondent's statement in its answer to the complaint indicated otherwise. Accordingly, we reject the General Counsel's argument that the Privacy Act was not raised as a bar to disclosure under section 7114(b)(4) in the proceedings before the Judge.
B. Disclosure Is Barred by the Privacy Act
For the following reasons, we find that disclosure of the requested information is barred by the Privacy Act because the disclosure would constitute a clearly unwarranted invasion of personal privacy, under FOIA Exemption 6, and is not authorized under the routine use exception.(9) Accordingly, we conclude that the Respondent did not violate the Statute by refusing to provide the information.
1. The Information Is Contained in a System of Records
The Judge does not address whether the requested information is contained in a system of records. As to those employees whose official personnel folders contain a copy of an administrative investigation (see note 3, supra), we find, as we did in U.S. Department of Transportation, Federal Aviation Administration, New York Tracon, Westbury, New York, 50 FLRA 338 (1995) (FAA), that it is proper to take official notice of the fact that the requested information is contained in systems of records maintained by the Office of Personnel Management (OPM). In this regard, we also find it proper to take official notice of the OPM's "Publication of Notices of Systems of Records," concerning OPM/GOVT-1, "General Personnel Records," 57 Fed. Reg. 35698, 35705 (Aug. 10, 1992), and OPM/GOVT-3, "Records of Adverse Actions, Performance Based Reduction in Grade and Removal Actions, and Termination of Probationers," 57 Fed. Reg. at 35712. Contents of employees' official personnel folders and records concerning adverse actions, respectively, are contained in these systems of records.
We also find that it is proper to take official notice of the fact that administrative investigations of patient abuse are contained in a system of records maintained by the Respondent. In this regard, we take official notice of the Federal Register "Privacy Act Issuances, 1993 Compilation" concerning 32VA00, "Veteran, Employee and Citizen Health Care Facility Investigation Records--VA."(10)
2. Analytic Framework for Applying FOIA Exemption 6
In FAA, issued after the Judge's decision, we set forth the analytic approach we will follow in assessing an agency's claims that disclosure of information requested under section 7114(b)(4) of the Statute would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6 and, therefore, is prohibited by the Privacy Act. In FAA, which involved the disclosure of performance appraisals of bargaining unit employees, we stated that an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the information sought is contained in a "system of records" within the meaning of the Privacy Act, as discussed above; (2) that disclosure would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest. Although the parties bear these burdens, we will, where appropriate, consider matters that are otherwise apparent.
We held in FAA, for reasons more fully explained there, that the only relevant public interest to be considered in this context is the extent to which the requested disclosure would shed light on the agency's performance of its statutory duties, or otherwise inform citizens concerning the activities of the Government. More particularly, we held that the public interest in collective bargaining that is embodied in the Statute, or specific to a union in fulfilling its obligations under the Statute and in expediting grievances, will no longer be considered in our analysis under Exemption 6 of the FOIA.
Once the relevant interests are established, we will balance the privacy interests of employees against the public interest in disclosure. Where this balance leads us to conclude that the privacy interests are greater than the public interest at stake, we will find that the requested disclosure would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 and, therefore, that disclosure is prohibited by law under section 7114(b)(4) of the Statute; accordingly, the agency is not required to furnish the information, unless disclosure is permitted under another exception to the Privacy Act. In contrast, where the balance tips the other way, because the public interest is greater than the privacy interests, we will conclude that disclosure would be required under the FOIA and, therefore, is not prohibited by the Privacy Act.
3. Disclosure Would Constitute a Clearly Unwarranted Invasion of Employees' Personal Privacy Within the Meaning of FOIA Exemption 6
In this case, we find that both the Respondent and the General Counsel have met their burdens of demonstrating, respectively, that disclosure of information pertaining to administratively investigated cases of patient abuse would implicate employee privacy interests and that disclosure of the information would serve a public interest cognizable under the FOIA.
With respect to the privacy interests, the Authority has previously found that employees have significant privacy interests in disciplinary information because the release of that information can be embarrassing and stigmatizing to the employee. See U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 470-71 (1995) (DOL); U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1361-64 (1990), request for reconsideration denied, 38 FLRA 946 (1990). This finding is consistent with the conclusions reached by courts reviewing claims under Exemption 6 of the FOIA. See Department of the Air Force v. Rose, 425 U.S. 352, 377 (1976); Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979), cert. denied, 444 U.S. 842 (1979). Employees also have a significant privacy interest in information concerning investigations of alleged patient abuse that do not lead to disciplinary actions because such information may have an embarrassing and stigmatizing effect despite the fact that the employee is found to be innocent of the matter for which he or she is being investigated.
With regard to the public interest in disclosure, we find, in agreement with the General Counsel, that the release of the requested information would shed light on whether the Respondent's operations ensure the proper care and treatment of members of the public who are patients of the medical facility. Release of the requested information would also shed light on the treatment of the Respondent's employees involved in the same or similar incidents of alleged patient abuse and, thereby, reveal the extent to which such employees receive equal and impartial treatment in accordance with applicable laws, rules, and regulations. Therefore, disclosure of the requested information would serve the public interest.
However, there is no indication that disclosure of the requested information in a form that reveals employees' names would enhance the foregoing public interests. See DOL, 51 FLRA at 471. See also Federal Aviation Administration, New York Tracon, Westbury, New York, 51 FLRA 115, 122-23 (1995) (disclosure of EEO settlement agreement with personally identifying information did not enhance the extent to which the public interest in monitoring agency actions is served). Although disclosure of the requested information, sanitized to remove only patients' names, but not the names of employees, may well enhance the Union's ability to represent an employee in connection with a proposed suspension for verbal patient abuse, this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6. See FAA, 50 FLRA at 348 and cases cited therein.
Based on the foregoing, the weight of judicial and Authority precedent supports a conclusion that the public interest that would be served by disclosure of information concerning administratively investigated cases of patient abuse by the Respondent's employees in a form that includes employees' names is outweighed by the invasion of privacy that would result therefrom. Accordingly, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, within the meaning of FOIA Exemption 6.
4. Disclosure of the Requested Information Is Not Authorized Under the Routine Use Exception to the Privacy Act
As explained above, the information requested in this case is contained in the OPM/GOVT-1 and OPM/GOVT-3 systems of records and 32VA00, the Respondent's system of records. With respect to OPM's systems of records, OPM's routine use statements governing OPM/GOVT-1 and OPM/GOVT-3, identified as routine use "j" applicable to OPM/GOVT-1 (encompassing Official Personnel Folders), and "a" applicable to OPM/GOVT-3 (encompassing adverse action files), provide that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation . . . ." 57 Fed. Reg. 35698, 35706, 35712 (1992). Accordingly, to determine whether the routine use exception applies to the requested information contained in OPM/GOVT-1 and OPM/GOVT-3 systems of records, we must decide whether the requested information is "relevant and necessary" within the meaning of routine use statements "a" and "j."
OPM issued "guidance to agencies" for interpreting these terms in FPM Letter 711-164, which was published on September 17, 1992. When the FPM was abolished on December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 223-26 (1995), we apply the FPM Letter's guidance in deciding this case.
The FPM Letter contains two requirements that a union must satisfy in order to establish that requested information is consistent with routine uses "a" and "j": (1) the information is "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information is "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs. In clarifying this second requirement, the FPM Letter explains that it is to be determined on a case-by-case basis; the union "must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted."
Addressing first the standard of "relevance," and looking at the ordinary meaning of the terms "traceable," "logical," and "significant,"(11) we have examined the record to assess whether the Union has established that the requested administrative investigations, identified by employees' names, can reasonably be attributed to and are likely to influence or affect the purpose for which the records were sought. We find that employee name-identified records bear a traceable, logical, and significant connection to the purpose for which the information was sought. Furnishing the records would clearly assist the Union's stated purpose of uncovering possible disparate treatment of a unit employee. It would also enable the Union to make comparisons among employees in order to ascertain whether the Respondent administered discipline to the employee in a fair and equitable manner.
However, we are not persuaded that the record before us supports a finding that the information is "necessary," within the meaning of the FPM Letter. Although the General Counsel maintains that the Union needs the requested information to determine whether there was disparate treatment of an aggrieved employee, the General Counsel has failed to establish that this need cannot be satisfied through less intrusive means than by using name-identified records of administrative investigations of patient abuse. For example, a less intrusive means of disclosure would be to code the information as to Union membership but delete personally-identifying information about employees and patients.(12) The FPM Letter specifically identifies release of records in this manner as a less intrusive means of disclosure.(13)
No argument is offered why sanitized (with patients' and employees' names and personal identifiers deleted) and correlated records would not satisfy the Union's needs. Based on the foregoing, we conclude that the Union has failed to show that the information is necessary, within the meaning of routine use statements "a" and "j." Therefore, the Union has not established, as it must under FPM Letter 711-164, both the relevance and necessity of unsanitized copies of all requested administrative investigations. Consequently, the information is not disclosable in the unsanitized form sought by the Union as a routine use under section 552a(b)(3) of the Privacy Act.
With respect to the administrative investigations contained in the Respondent's system of records 32VA00, we find, for different reasons, that these also are not disclosable as a routine use. The routine use statements for 32VA00 do not include a routine use that provides for disclosure of information to officials of labor organizations when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices and matters affecting working conditions. See Federal Register "Privacy Act Issuances, 1993 Compilation," available in CD-ROM, Privacy Act Issuances, 1993 Comp., 32VA00 (Dec. 31, 1993). Consequently, we conclude that the release of the requested information contained in the Respondent's systems of records is not authorized under the routine use exception to the Privacy Act.
As disclosure of administrative investigations with the names of employees included would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and release of the unsanitized information is not authorized as a routine use under section 552a(b)(3) of the Privacy Act, such disclosure is prohibited by law within the meaning of section 7114(b)(4) of the Statute. Accordingly, the Respondent's failure to provide the Union with the requested information did not violate section 7116(a)(1), (5), and (8) of the Statute.
V. Order
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
DEPARTMENT OF VETERANS
AFFAIRS, VETERANS AFFAIRS
MEDICAL CENTER,
DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2437, AFL-CIO
Charging Party/Union
Case No. 6-CA-11025
Catherine A. Rich
Counsel for the Respondent
Andrew Brumsey
Carl W. Holt
Representatives of the Charging
Party
Joseph T. Merli
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(l), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), (5), and (8) by failing and refusing to furnish the Union with requested information to which it was entitled pursuant to section 7114(b)(4) of the Statute. The requested information consisted of all information pertaining to administratively investigated cases of patient abuse by Respondent's employees.
Respondent's answer admitted the allegations as to Respondent, the Union, and the charge, but denied any violation of the Statute. Respondent admitted that the information requested by the Union did not constitute guidance, advice, or counsel relating to collective bargaining and was not prohibited from disclosure by law. Respondent denied that the information was necessary or normally maintained and claimed that it "may not be available in accordance with the Privacy Act" or that certain information may have to be redacted.
A hearing was held in Dallas, Texas. The Respondent, Charging Party and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
By letter dated June 21, 1991, Bobby Thomas, a non- Title 38 bargaining unit employee, received notice that management proposed to suspend him for fourteen days for alleged verbal patient abuse. According to the letter, Thomas had until July 5, 1991 to reply to the proposal orally or in writing. On or about June 24, 1991, Thomas requested representation by the Union in connection with his proposed suspension. Mary Mosley, the Union's Chief Steward, was assigned to Thomas' case. On June 24, 1991, Mosley hand delivered a letter of the same date to Respondent's Personnel Section requesting any and all information pertaining to administratively investigated cases of patient abuse by the Respondent's employees. Mosley addressed the letter to Respondent's Director through the Chief of Personnel in accordance with instructions the Union had received from Respondent that requests for information should be sent to Personnel.
On June 28, 1991, Respondent advised Mosley that "[d]ue to the complex nature of your request, we should have the information available by July 16, 1991." By letter dated July 19, 1991, Respondent advised Mosley that one employee had been suspended since June 1990 as a result of administrative investigations concerning patient abuse. Mosley requested that Respondent go back further in the records. By letter dated July 23, 1991 Respondent advised Mosley that disciplinary actions were taken against four employees as a result of administrative investigations concerning patient abuse. Two employees were suspended and two were removed.
Mosley subsequently explained to Adeline Smyth, Supervisory Personnel Management Specialist, that the Union was requesting all information concerning administrative investigations of patient abuse by all bargaining unit employees so that the Union could compare the cases with that of Thomas to make sure there was no disparate treatment. Smyth replied that Pete Nicholas, Risk Management Coordinator, Quality Management Section, was in charge of all administrative investigations; that he maintained such files; and Mosley should talk to him about obtaining all of the files.(1) Smyth did not attempt to secure such information for the Union directly from Nicholas and there is no evidence that the Union sought the information directly from Nicholas.
The Union had not been furnished the information sought to the date of the hearing.
The record reflects that alleged acts of patient abuse by employees are coordinated by Pete Nicholas, Quality Management Coordinator, Quality Management Section. This section is located in the same building and on the same floor as the Personnel Section. Nicholas arranges for a committee to investigate each alleged case of patient abuse which must report its findings and recommendations. If no disciplinary action is recommended in a case, the record of the administrative investigation is maintained by Nicholas in the Quality Management Section. If disciplinary action is recommended against an employee, a copy of the file is referred to Personnel to carry out the disciplinary action. Copies of the administrative investigations are retained by Personnel in disciplinary cases.(2)
Union Chief Steward Mosley, after securing one extension within which to reply to Thomas' proposed suspension on the basis that she was awaiting the requested information, met with the Chief, Nursing Service, concerning the proposed suspension of Bobby Thomas for alleged verbal patient abuse. Mosley explained that since the Union did not have the requested information, it could not represent Thomas properly. The Chief, Nursing Service, proceeded to make her decision and suspended Thomas for 14 days.(3)
Mosely did not file a grievance in Thomas' case, but maintains that the Union will do so if it obtains the requested information and discovers such a grievance has merit; for example, if Thomas were subjected to disparate treatment. She contends that such a grievance would be timely under the parties' collective bargaining agreement.
The Union was not offered the information in sanitized form, but Mosley acknowledged that "patients' identities and information is private" and that certain information, such as patient identification and Social Security numbers, could be excised by Respondent before being given to the Union.
Discussion and Conclusions
Under section 7114(a) of the Statute, a labor organization which as been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.
As noted above, the only issues posed by Respondent's answer are whether the data requested is normally maintained, reasonably available, necessary, and, if so, whether certain of the data is confidential and should be sanitized.
Normally Maintained
"In determining whether information is normally maintained by an agency the Authority examines whether the information is within the control of the agency. The physical location of requested information is not relevant, provided the information is subject to the agency's control or can be retrieved and provided to the agency at its request." U.S. Department of Justice, Office of the Inspector General, Washington, D.C. and U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 45 FLRA No. 135 at 4 (1992).
The evidence establishes that the information requested by the Union is normally maintained by the Respondent in its Quality Management Section and, in cases where disciplinary action is taken, copies of relevant files are also maintained in Respondent's Personnel Section. Thus, the information sought by the Union is clearly within the control of the agency and "normally maintained" under section 7114(b). The Union sought to obtain the information from the Personnel Section in accordance with procedures established by Respondent and accepted by the Union.
Reasonably Available
In Department of Health and Human Services, Social Security Administration, 36 FLRA 943 (1990), the Authority defined what is meant by the phrase "reasonably available" in section 7114(b)(4) of the Statute. The Authority found that "available" referred to information which is accessible or obtainable, while "reasonable" referred to means that are not extreme or excessive. Id. at 950. Here, as noted above, the information requested by the Union is maintained by Respondent's Quality Management Section and, in some cases, by the Personnel Section, both located in the same building on the same floor. There is no showing that the information is not accessible or obtainable, or that it could be retrieved only through the use of extreme or excessive means. Therefore, the information requested by the Union is "reasonably available" under section 7114(b)(4).
Necessary
The Union requested the information in order to assist an employee in responding to a proposed suspension action and to file a grievance if a comparison of the action taken in other patient abuse cases showed disparate treatment among employees.
"It is well-settled that section 7114 creates a duty to provide information that would enable the [U]nion to process a grievance or to determine whether or not to file a grievance." American Federation of Government Employees, Local 1345, AFL-CIO v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986). The Authority has also found that a Union "has a significant interest in the issue of disparate treatment and that documents relating to that issue are necessary within the meaning of section 7114 of the Statute." Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1629 (1991).
The "proposed" nature of the action against Thomas at the time of the Union's data request did not remove the Union's entitlement to necessary data to access the strengths or weaknesses of a potential grievance and perform its other representational duties in the context of the full range of union responsibilities. Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116, 1121-22 (1991); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C., 40 FLRA 1070, 1083 (1991); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C., 40 FLRA 303 (1991).
It is concluded that the requested information was necessary within the meaning of section 7114(b)(4).
Respondent contends that certain information within an administrative investigation may be confidential. See 38 U.S.C. §§ 5701 and 5705 which relate to the dissemination of confidential veterans' claims and quality assurance records. The Union has acknowledged that "patients' identities and information is private" and could be excised without objection. In United States Department of Veterans Affairs, Washington, D.C. and Veterans Administration Medical Center, Amarillo, Texas, 42 FLRA 333, 344 (1991), the Authority concluded, in agreement with the General Counsel, that if the requested information in that case contained any reference to individual veterans' names, claims, or records, those identifiers could be sanitized to protect the personal privacy of those mentioned. It is concluded that providing the documents requested to the Union in this manner is also appropriate and will effectuate the purposes and policies of both the Statute and Title 38. Any disputes over sanitization should be resolved during compliance proceedings.
It is concluded that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by its failure to comply with section 7114(b)(4) and furnish the Union all information pertaining to administratively investigated cases of patient abuse by Respondent's employees as requested by the Union's letter dated June 24, 1991.(4)
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority's and section 7118 of the Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Dallas, Texas shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, Local 2437, AFL-CIO (Union), the agent of the exclusive representative of its unit employees, information pertaining to administratively investigated cases of patient abuse requested by the Union in its letter dated June 24, 1991 in connection with its representation of unit employees.
(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Furnish to the American Federation of Government Employees, Local 2437, AFL-CIO, the agent of the exclusive representative of its unit employees, information pertaining to administratively investigated cases of patient abuse requested by the Union in its letter dated June 24, 1991 in connection with its representation of unit employees.
(b) Post at all of its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Medical Center Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, Dallas, Texas 75202, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, October 23, 1992
_________________________
GARVIN LEE OLIVER
Administrative Law
Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, Local 2437, AFL-CIO (Union), the agent of the exclusive representative of our unit employees, information pertaining to administratively investigated cases of patient abuse requested by the Union in its letter dated June 24, 1991 in connection with its representation of unit employees.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees, Local 2437, AFL-CIO, the agent of the exclusive representative of our unit employees, information pertaining to administratively investigated cases of patient abuse requested by the Union in its letter dated June 24, 1991 in connection with its representation of unit employees.
____________________________
(Activity)
Dated:___________ By:____________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The parties were provided an opportunity to submit supplemental briefs addressing the Supreme Court's decision in United States Department of Defense v. FLRA, __ U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The Respondent and the General Counsel filed briefs on this issue. The General Counsel also filed a brief concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute), in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).
2. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2) (the Freedom of Information Act or FOIA exception), provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552. In determining whether information is disclosable under exception (b)(2) of the Privacy Act, applicable FOIA exemptions, which exclude certain information from the disclosure requirements of the FOIA, must be considered. 5 U.S.C. § 552(b)(1)-(9). As discussed in Part III. A, infra, three FOIA exemptions are asserted to apply in this case. Second, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected."
3. The record shows that if disciplinary action is recommended as a result of an administrative investigation, a copy of the investigative file is kept in the employee's official personnel folder. If no disciplinary action is recommended, the investigative file is maintained in the Respondent's Quality Management Section. In addition to not disclosing any information concerning administrative investigations of patient abuse in which no disciplinary actions were recommended, the Respondent did not give the Union copies of the administrative investigations in the four cases that resulted in discipline.
4. Exemption 3 provides that the FOIA does not apply to matters that are:
specifically exempted from disclosure by statute (other than [5 U.S.C. § 552b]) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]
5 U.S.C. § 552(b)(3).
5. Exemption 5 states that the FOIA does not apply to matters that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5).
6. Exemption 6 provides that information contained in "personnel and medical files and similar files" may be withheld data under certain conditions if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA.
7. Section 2423.27(a)(2) provides that exceptions to a Judge's decision shall "[i]dentify that part of the Administrative Law Judge's decision to which objection is made[.]"
8. To the extent that the information was requested in accordance with the FOIA, we note that it is not within our authority to enforce the FOIA.
9. In view of our conclusions, we do not address the Respondent's additional arguments that administrative investigations of patient abuse are exempt from disclosure under: (1) Exemption 3 of the FOIA because 38 U.S.C. §§ 5705 and 7332 specifically exempt that information from disclosure; and (2) Exemption 5 of the FOIA because administrative investigations are documents relating to inter-agency deliberations.
10. The Respondent asserts that these records are contained in a different Agency system, 77VA11, "Health Care Provider Records--VA." That system of records contains information related to the credentialing, privileging, and reappraisal of health care professionals in connection with granting licenses and clinical privileges. See Federal Register "Privacy Act Issuances, 1993 Compilation," available in CD-ROM, Privacy Act Issuances, 1993 Comp., 77VA11 (Dec. 31, 1993). Copies of "reports of investigations, findings, and follow-up concerning employees, patients and private citizens, injuries, property damage, accidents, thefts, assaults, discrimination, complaints, elopments [sic], unethical conduct, etc.," are contained in 32VA00, "Veteran, Employee and Citizen Health Care Facility Investigation Records--VA," and maintained at each of the Department of Veterans Affairs health care facilities. Federal Register "Privacy Act Issuances, 1993 Compilation," available in CD-ROM, Privacy Act Issuances, 1993 Comp., 32VA00 (Dec. 31, 1993).
11. According to Webster's Third New International Dictionary (unabridged) (1986), traceable is defined as "suitable or of a kind to be attributed: Due, Ascribable"; logical means "that [which] is in accordance with inferences reasonably drawn from preceding or surrounding or predictable facts or events or circumstances"; and significant refers to "having or likely to have influence or effect." The Authority has applied these definitions in interpreting FPM Letter 711-164. For example, DOL, 51 FLRA at 474 n.9; U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 226 n.11 (1995).
12. As this case concerns employee discipline, the Union's need for the information is compelling. Given that need, and the fact that less intrusive means of disclosure are evident, it is unfortunate that the parties did not make efforts to explore and accommodate their respective interests so as to permit disclosure without compromising employee privacy.
13. Release of the employees' administrative investigation records with names and personal identifiers deleted will protect the employees' privacy because potentially embarrassing or stigmatizing information will be in a form that does not identify the specific individuals to whom that information applies. We note that the Respondent has disclosed the names of the employees who were disciplined for patient abuse. Nevertheless, release of those employees' administrative investigation records in a sanitized form will protect the employees from any further invasion of privacy.
ALJ's Footnotes Follow:
1. Smyth testified that, during her earlier conversation with Mosley, Mosley wanted only the number of disciplinary actions taken. I credit the contrary testimony of Mosley which is supported by the explicit information request.
2. Smyth testified that she did not offer to furnish the Union the copies of the administrative investigations in the four disciplinary cases held in Personnel because Mosely did not specifically ask for those files, but "wanted all of the files of administrative investigations." (Tr. 60-61).
3. Respondent points out that the Union did not specifically request the investigative report regarding Bobby Thomas. The Union's request for all such cases would have included Thomas' report. There is no evidence that Respondent specifically offered Thomas' investigative file in response to the Union's request.
4. Gary Shelton, Respondent's labor relations specialist, testified that on August 20, 1991, after the unfair labor practice charge was filed, he provided the Union the names of the four employees disciplined for patient abuse consistent with Respondent's position that the Union was only requesting names. As reflected above, I have found that the Union's request was not limited to the number or names of employees investigated for alleged patient abuse.