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

 

            Date 1992

            By

            Subject Other\Dissenting

                

 Contents

 

 

Page 1

53 of 64 DOCUMENTS

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner in 90-3690 vs. U.S. DEPARTMENT OF THE NAVY, NAVY SHIPS PARTS CONTROL CENTER, AND U.S. DEPARTMENT OF THE NAVY, NAVY FLEET MATERIAL SUPPORT OFFICE, AND U.S. DEPARTMENT OF THE NAVY, NAVSEA LOGISTICS CENTER, AND U.S. DEPARTMENT OF THE NAVY, NAVY PUBLISHING AND PRINTING SERVICE, Respondents American Federation of Government Employees, Intervenor U.S. DEPARTMENT OF THE NAVY, NAVY SHIPS PARTS CONTROL CENTER, AND U.S. DEPARTMENT OF THE NAVY, NAVY FLEET MATERIAL SUPPORT OFFICE, AND U.S. DEPARTMENT OF THE NAVY, NAVSEA LOGISTICS CENTER, AND U.S. DEPARTMENT OF THE NAVY, NAVY PUBLISHING AND PRINTING SERVICE, Petitioners in 90-3724 v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent

Nos. 90-3690 and 90-3724

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

966 F.2d 747; 1992 U.S. App. LEXIS 11687; 140 L.R.R.M. 2361

May 9, 1991, Argued

May 26, 1992, Filed

SUBSEQUENT  HISTORY:  As  Amended  May  29,

1992.

PRIOR  HISTORY:   **1    Appeal  from  the  Federal

Labor Relations Authority.  (2-CA--80243). February 19,

1992, Reargued

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioner Federal Labor Relations Authority sought enforcement of its order re- quiring that respondent, the United Stated Department of the Navy, disclose the names and home addresses of em- ployees within a particular bargaining unit to a union, as permissible under Exemption 6 and the routine use ex- emption of the Freedom of Information Act, 5 U.S.C.S.

§§ 552(b)(6), 552a(b)(3).

OVERVIEW: After the union's requests for the names and home addresses of certain employees was denied by respondent,  the United States Department of the Navy, the  union  filed  a  charge  against  respondent  for  unfair labor  practices  in  violation  of  Federal  Service  Labor- Management Relations Statute (Labor Statute), 5 U.S.C.S.

§ 7116(a)(1), (5), (8). Petitioner Federal Labor Relations Authority sought enforcement of its order requiring re- spondent  to  disclose  the  names  and  home  addresses  to the union. The court granted the enforcement because it concluded that the invasion of privacy was minimal. The court held that only an exclusive bargaining representative

could request names and home addresses of employees under the Labor Statute. Any other person would need to proceed directly under the Freedom of Information Act, which provided for additional safeguards to the employ- ees' privacy.

OUTCOME: The court granted enforcement of the order by petitioner Federal Labor Relations Authority requir- ing that respondent, the United States Department of the Navy, disclose the names and home addresses of employ- ees  within  a  particular  bargaining  unit  to  a  union.  The court held that disclosure was a minimal invasion of the employees' privacy.

LexisNexis(R) Headnotes

Administrative Law > Judicial Review > Standards of

Review > Arbitrary & Capricious Review

HN1    The   court   reviews   Federal   Labor   Relations Authority determinations under the arbitrary and capri- cious standard set forth in the Administrative Procedure Act, 5 U.S.C.S. § 706(2)(A).

Labor & Employment Law > Collective Bargaining & Labor Relations > Fair Representation

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN2       The          Federal    Service    Labor-Management Relations Statute (Labor Statute), 5 U.S.C.S.§ 7114, pro- vides for the award of exclusive representation to labor organizations, 5 U.S.C.S. § 7111, and imposes interrelated

966 F.2d 747, *; 1992 U.S. App. LEXIS 11687, **1;

140 L.R.R.M. 2361

Page 2

rights and obligations upon an exclusive bargaining rep- resentative, 5 U.S.C.S. § 7114. The disclosure provision,

5 U.S.C.S. § 7114(b)(4), also outlines the obligations of both the exclusive bargaining representative and the gov- ernment agency to negotiate in good faith. In particular, the  Labor  Statute  specifies  that  an  exclusive  represen- tative 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.S. § 7114(a)(1).

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN3       The          Federal    Service    Labor-Management Relations Statute, 5 U.S.C.S. § 7114(b) imposes upon the exclusive bargaining representative the duty to negotiate in good faith,  which includes approaching negotiations with a sincere resolve to reach an agreement and being represented at negotiations by an appropriate representa- tive prepared to discuss and negotiate on all negotiable matters.

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN4       The          Federal    Service    Labor-Management Relations  Statute,  5  U.S.C.S.  §  7114(b)(4),  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.S.

§ 7114(b)(4).

Labor & Employment Law > Collective Bargaining & Labor Relations > Subjects of Bargaining

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN5  See 5 U.S.C.S. § 7114(b)(4).

Administrative  Law  >  Governmental  Information  > Personal Information

HN6  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.S.  §  552a(a)(7).  Each agency that maintains records shall publish in the federal register upon establishment or revision a notice of the ex- istence 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.S. § 552a(e)(4)(D).

Civil  Procedure  >  Appeals  >  Standards  of  Review  > Abuse of Discretion

HN7  An interpretive rule is one in which an agency as- serts its construction of a statute or a regulation. As such,

interpretive rules do not have the force and effect of law. Substantive rules, on the other hand, do carry the force of law and are promulgated by an agency to implement a statute. 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. Substantive or legislative rules by contrast, have substantive legal effect. They cannot be set aside by the courts unless found arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law.  5 U.S.C.S. § 706(2)(A) (1976).

COUNSEL:   William   E.   Persina,   Esq.   (ARGUED), William   R.   Tobey,   Esq.,   Pamela   P.   Johnson,   Esq., Federal Labor Relations Authority,  500 C Street,  S.W., Suite  222,  Washington,  D.C.  20424,  COUNSEL  FOR PETITIONER IN 90-3690.

Mark D. Roth, Esq. American Federation of Government Employees, 80 F Street, N.W., Washington, DC 20001. Stuart A. Kirsch, Esq. (ARGUED), American Federation of  Government  Employees,  510  Plaza  Drive,  College Park,   GA   30349,   COUNSEL   FOR   INTERVENOR PETITIONER IN 90-3690.

Stuart   M.   Gerson,   Esq.,   Leonard   Schaitman,   Esq., Sandra Wien Simon, Esq. (ARGUED), Lori M. Beranek, Esq.,  United   States   Department   of   Justice,     Civil Division, Appellate Staff, 10th and Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001, COUNSEL FOR RESPONDENTS IN 90-3690.

Elaine D. Kaplan, Gregory O'Duden, Esq., 1730 K Street, N.W., Suite 1100, Washington, D.C. 20006, COUNSEL FOR AMICUS-PETITIONER IN 90-3690.

JUDGES: Argued May 9, 1991 Before:  MANSMANN, NYGAARD  and  ROSENN,  Circuit  Judges.  Reargued February   19,      1992   BEFORE:   SLOVITER,   Chief Judge,                BECKER,                STAPLETON,        MANSMANN, GREENBERG,  HUTCHINSON,  SCIRICA,  COWEN, NYGAARD,         **2         ALITO,  ROTH  and  ROSENN, Circuit Judges.

OPINIONBY: MANSMANN

OPINION:   *749

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The  Federal  Labor  Relations  Authority  seeks  en- forcement  of  its  order  requiring  that  the  United  States Department of the Navy disclose to a union, designated an

966 F.2d 747, *749; 1992 U.S. App. LEXIS 11687, **2;

140 L.R.R.M. 2361

Page 3

exclusive bargaining representative, the home addresses of employees within a particular bargaining unit. Our in- quiry focuses on whether disclosure of these home ad- dresses 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 "per- sonnel 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) dis- closure "for a 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  (1988)  (holding  that  the

FOIA exception permits **3   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, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (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,  n1  requested  that  five  Navy Commanding  Officers  supply  the  names  and  home  ad- dresses of all non-supervisory employees within the

966 F.2d 747, *750; 1992 U.S. App. LEXIS 11687, **3;

140 L.R.R.M. 2361

Page 4

*750   bargaining unit. n2 As a factual matter, it is undis- puted  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.

n1 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).

**4

n2 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.

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 ALJ in a brief opinion that incorporated the reason- ing 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. n3 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 enforce- ment and the Navy petitioned for review. Our appellate jurisdiction over these cross-petitions is **5   premised upon 5 U.S.C.A. § 7123(b) and (a), respectively.

n3 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-Portsmouth  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  (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, No.

90-1852 (4th Cir. Apr. 22, 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.

**6   HN1

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 col- lective  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, HN2  the Labor Statute provides for the award of exclusive rep- resentation to labor organizations, 5 U.S.C.A. § 7111, and imposes interrelated rights and obligations upon an ex- clusive 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 **7   spec- ifies that "an exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." 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.

966 F.2d 747, *751; 1992 U.S. App. LEXIS 11687, **7;

140 L.R.R.M. 2361

Page 5

*751     2826.  See  Karahalios  v.  Nat'l  Fed'n  of  Fed. Employees, Local 1263, 489 U.S. 527, 531, 103 L.Ed.2d

539, 109 S.Ct. 1282 (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 man- date to represent that individual's interests.

HN3  Subsection (b) imposes upon the exclusive bar- gaining representative the "duty to 'negotiate in good faith'

which  includes approaching negotiations with a sincere resolve to reach an agreement, being represented at ne- gotiations 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 af- fixes intertwined rights and obligations upon the exclusive representative toward bargaining unit   **8   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 exclu- sive bargaining representatives to further that purpose.

HN4   The  Labor  Statute's  disclosure  provision  re- quires government agencies to furnish data "which is nor- mally maintained by the agency in the regular course of business" and "which is reasonably available and neces- sary for full and proper discussion,  understanding,  and negotiation of subjects within the scope of collective bar- gaining  .  .  .  "  "to  the  extent  not  prohibited  by  law."  5

U.S.C.A.  §  7114(b)(4)  (emphasis  added).  n4  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 (1990). As mentioned previously,   **9  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).

HN5  n4 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 rep- resentative to negotiate in good faith under subsec- tion (a) of this section shall include the obligation--

* * *

(4) in the case of an agency, to furnish to the ex- clusive  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 collec- tive bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management offi- cials or supervisors, relating to collective bargain- ing; . . .

III.

A  preliminary  question  posed  is  whether  under  the Labor **10    Statute these home addresses are "neces- sary for full and proper discussion,  understanding,  and negotiation of subjects within the scope of collective bar- gaining; . . . ." 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 prereq- uisite necessity for home addresses required for a request for disclosure under section 7114(b)(4). n5

n5 Although the Navy clearly challenged the FLRA's  per  se  approach  in  its  papers  before  the FLRA, J.A. at 58 para. 8(c) (Complaint); 54 para.

8(c) (Answer); 27 (Navy's exceptions to the ALJ's decision), its position before us is somewhat diffi- cult 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 "has 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 re- examine 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  be- fore us, we conclude that the Navy has adequately

966 F.2d 747, *751; 1992 U.S. App. LEXIS 11687, **10;

140 L.R.R.M. 2361

presented this issue for our review.   **11

Page 6

966 F.2d 747, *752; 1992 U.S. App. LEXIS 11687, **11;

140 L.R.R.M. 2361

Page 7

*752

The FLRA took the position that disclosure of home addresses  was  necessary  for  collective  bargaining  ini- tially in Farmers Home Administration Finance Office, St. Louis,  Missouri (Farmers Home II), explaining that disclosure would "enable the Union to communicate ef- fectively and efficiently, through direct mailings to indi- vidual 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 communica- tion  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 superior 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  factfind- ing **12   of alternative methods of communication un- necessary).  As  in  Portsmouth,  it  is  undisputed  that  the ALJ 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) (ALJ'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 argu- ment 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 **13   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,  81  L.  Ed.  2d  694,  104  S.  Ct.  2778

(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 poli- cies and guidance relating to matters under this chapter"); see Bureau of Alcohol, Tobacco and Firearms v. FLRA,

464  U.S.  89,  92-93,  78  L.  Ed.  2d  195,  104  S.  Ct.  439

(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; 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:

We  find  that   **14    the  mere  existence  of  alternative means  of  communication  is  insufficient  to  justify  a  re- fusal to release the information. Further, we find that it is not necessary for us to examine the adequacy of alterna- tive means in cases

966 F.2d 747, *753; 1992 U.S. App. LEXIS 11687, **14;

140 L.R.R.M. 2361

Page 8

*753   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  distribu- tion 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 **15   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  en- counters in communicating with the 40 percent of its bar- gaining unit employees who do not belong to the union. Amicus Brief at 2. As the NTEU explains,  its bargain- ing  units  are  often  geographically  dispersed,  even  na- tionwide, 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  gov- ernment time for union purposes. Amicus Brief at 3. The availability of home addresses therefore provides the most effective avenue of communication with nonmember em-

ployees. 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 un- der  the  FOIA  exception  to  the  Privacy  Act  in  Farmers Home II. n6 Starting with the premise that the "clearly

**16    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 pro- motion of collective bargaining under the Labor Statute and  identified  ways  in  which  disclosure  would  enable unions  to  better  accomplish  their  statutory  responsibil- ities  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.

n6 The FLRA had previously taken the position that the disclosure of home addresses is "prohib- ited 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 considera- tion of the routine use exception to the Privacy Act but the Court of Appeals for the Second Circuit re- versed, 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.

**17

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 du- ties of exclusive representation" in the Office of Personnel Management's Federal Register notice of a routine

966 F.2d 747, *754; 1992 U.S. App. LEXIS 11687, **17;

140 L.R.R.M. 2361

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*754   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 in- terest of government employees in their home addresses did not outweigh the strong public interest in collective bargaining mandated by the **18  Labor Statute and the FOIA's policy in favor of disclosure. Dep't of the Navy,

840 F.2d at 1137. n7 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 deter- mine whether disclosure "would constitute . . . a  clearly unwarranted invasion of privacy." 5 U.S.C.A. § 552(b)(6).

"Mindful . . . 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 con- cluded that it outweighed the employees' meaningful pri- vacy interest. Id. at 1137. Ruling disclosure **19   avail- able under the FOIA exception, we declined to address the routine use exception.

n7 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,

102  L.Ed.2d  170,  109  S.Ct.  632  (1988);  United

States Dep't of Agriculture v. FLRA, 836 F.2d 1139

(8th Cir. 1988), vacated on other grounds, 488 U.S.

1025  (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 (1988); AFGE,

786 F.2d 554 (2d Cir. 1986).

In  its  subsequent  decision  in  Dep't  of  Justice  v. Reporters Committee, 489 U.S. 749, 103 L. Ed. 2d 774,

109 S. Ct. 1468 (1989), the Supreme Court expanded on the character of the public and privacy interests to be bal- anced under the FOIA. There the Reporters Committee

filed   **20    a FOIA request for the compiled criminal record ("rap sheet") of an individual involved in govern- ment 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 per- sonal 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.

The  requester  argued  that  because  the  information contained  in  the  rap  sheets  was  of  public  record,  al- beit scattered in courthouses and police departments na- tionwide,  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 in- dividual 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. A "web of federal statutory and regulatory  provisions,"  including  the  Privacy  Act,  and supplemented  by  state  laws,  that  restrict  rap  sheet  dis- semination and other compiled computerized information served to bolster **21   the individual's privacy interest. Id. at 764-65; see Whalen v. Roe, 429 U.S. 589, 51 L. Ed.

2d 64, 97 S. Ct. 869 (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, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (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 iden- tifying information would not be "clearly unwarranted." Id. at 380-81. Although significant,  the cadets' privacy interests were outweighed by the "clearly unwarranted" balance of Exemption 6 and the policy of disclosure un- derlying  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. **22

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 exemp- tions. 5 U.S.C.A. § 552(b)(1)-(9). The Court stated that Exemption 7(C) prohibited disclosure in that case and ex- pressly stated that it had no occasion to address Exemption

6.  Reporters Committee, 489 U.S. at 762 n.12.

In balancing the interests under Exemption 7(C), the

966 F.2d 747, *754; 1992 U.S. App. LEXIS 11687, **22;

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Page 10

Court attempted to ascertain what "warrants" an invasion of privacy. Id. at 771. 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. Balancing the heavy privacy interest against the minimal interest **23  of  the  requester  in  information  which  revealed  nothing about  "what  the  government  is  up  to,"  the  Court  con- cluded that Exemption 7(C) prohibited disclosure. Id. at

780.

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  (1990),  the  Court  of  Appeals  for  the D.C. Circuit revisited the home addresses disclosure is- sue in light of Reporters Committee. Distinguishing pre- Reporters  Committee  cases  because  they  weighed  the

"special public interest in advancing collective bargain- ing 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 governmen- tal 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 some- thing  slightly  more  than   **24     "nothing,"  that  court adhered to its prior view that a federal employee's privacy interest in his address is substantial and balanced the in- terests 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,

108 L.Ed.2d 936, 110 S.Ct.1805 (1990). n8

n8   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 be- cause there was no public interest in disclosure af- ter 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 in- terest outweighed the absence of a public interest in disclosure.

Subsequently,  in **25    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 "har- monize"

966 F.2d 747, *756; 1992 U.S. App. LEXIS 11687, **25;

140 L.R.R.M. 2361

Page 11

*756     the  Labor  Statute,   the  Privacy  Act  and  the FOIA.  In  so  doing,  the  FLRA  distinguished  Reporters Committee as inapposite to disclosure sought under the Labor  Statute,   reasoning  that  requests  under  section

7114(b)(4) of the Labor Statute cannot be evaluated with- out 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  (1988);  5  U.S.C.A.  §  7101(a)

(imposing  upon  the  union  duties  of  fair  representation, collective bargaining with employers, and providing dis- closure information necessary to assist the implementa- tion of these duties).

After refuting the contention that the Labor Statute

**26   requires a FOIA analysis divorced from the pub- lic 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 refer- ence to law outside the FOIA.   Portsmouth, 37 F.L.R.A.

(No. 39) at 530. Moreover, the FLRA noted that the pri- vacy  interest  in  one's  home  address  is  less  compelling than  one's  privacy  interest  in  a  rap  sheet,  distinguish- ing Reporters Committee, and also had little commercial value.  Id. at 532. Because the order under review incor- porated Portsmouth, its reasoning is subject to our review.

V.

In  order  to  weigh  whether  disclosure  of  home  ad- dresses would be "clearly unwarranted" under Exemption

6  of  the  FOIA,  it  is  necessary  to  identify  the  compet- ing privacy and public interests. We will evaluate each seriatim and then turn to balancing them.

A.

We  have  previously  concluded  that  individuals  re-

tain a "meaningful interest in the privacy of information concerning their homes." Dep't of the Navy, 840 F.2d at

1136; **27   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 exploita- tion").  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 disclo- sure of more personal information." Dep't of the Navy,

840 F.2d at 1136. Indeed, when balanced against the pub- lic 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 char- acterization of one's privacy interest in a home address as meaningful. Reporters Committee evaluated an individ- ual's privacy interest in his or her rap sheet revealing all arrests,  criminal  charges  and  conviction.  On  its   **28  face  this  information  merits  a  greater  privacy  interest ranking  than  one's  home  address  because  of  its  poten- tial 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 sup- port for its finding of a substantial privacy interest in the

"web" of federal and state laws restricting rap sheet dis- semination. No such "web" of laws restrict dissemination of home addresses.

Our previous determination that home addresses im- plicate 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.

966 F.2d 747, *757; 1992 U.S. App. LEXIS 11687, **28;

140 L.R.R.M. 2361

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*757

B.

The Navy contends that Reporters Committee alters the character of the public interest to restrict FOIA disclo- sure to information revealing "what the government is up to" regardless of the purposes or identity of the request- ing party. If,  as the Navy argues,  Reporters Committee applies to the Union's request for home addresses made under section 7114(b)   **29   of the Labor Statute, then an assessment of the public interest cannot take into ac- count the degree to which access to home addresses en- hances the ability of a union to engage in collective bar- gaining, 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." n9 If this is so,  according to the Navy, a public interest of "zero" is clearly outweighed by a meaningful privacy interest.

n9 It is conceivable that the disclosure of home addresses  could  further  a  public  interest  deriva- tively, for example, by enabling the union to inter- view 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 (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.

**30

Reporters Committee addressed a FOIA request un- der  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 informa- tion 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 re- sponsibilities imposed by Congress on an exclusive bar- gaining 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  immate- rial when a request is made under the FOIA.  Reporters Committee, 489 U.S. at 771; see Landano,  956 F.2d at

428; Masonic Homes,  556 F.2d at 220 ("we must con- sider the public benefit that would result **31   from the disclosure, to the requester  or to anyone . . ."). This case is different because here it is the identity of the request- ing party --  as an exclusive bargaining representative -- under the Labor Statute that authorizes the union to in- voke the statutory disclosure provision. As amicus curiae notes, "the Navy's  argument has the anomalous effect of requiring us  to rule 'clearly unwarranted' 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 re- questing 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 **32   out what the "government is up  to."  Nothing  in  the  passage  suggests  that  the  Court had considered and rejected the relevance of public inter- est objectives identified by Congress in other disclosure statutes. Moreover, the argument here is not that the iden- tity 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).

966 F.2d 747, *758; 1992 U.S. App. LEXIS 11687, **32;

140 L.R.R.M. 2361

Page 13

*758

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 governmen- tal 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 disclo- sure sought under the FOIA and the Labor Statute), cert. dismissed,  488  U.S.  880  (1988).  Thus,  the  theory  un- derlying  FOIA  disclosure,  as  represented  in  Reporters Committee,  is  inapplicable   **33    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,  in- cluding a recognition of the significant public interest in collective bargaining.

C.

Congress enacted the FOIA to reflect "'a general phi- losophy 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, 48 L. Ed. 2d 11,

96 S. Ct. 1592 (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. Consistent with its policy of disclo- sure, the FOIA "places the burden on the agency to justify the withholding of any requested documents." Ray, 112

S. Ct. at 547. **34   In keeping with this policy, disclo-

sure 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,

106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989) (Blackmun, J.,  dissenting) ("the 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 opera- tions").

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 stan- dards for evaluating competing privacy and public inter- ests.  As  a  result  courts  have  played  a  creative  role  in evaluating the interests to be balanced, looking to the pur- pose 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 (referring to the common law and numerous federal **35   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  col- lective 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 con- stitute  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

966 F.2d 747, *759; 1992 U.S. App. LEXIS 11687, **35;

140 L.R.R.M. 2361

Page 14

*759   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), disclo- sure to **36   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 hold- ing 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 rea- son, 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 con- cerning the uses to which the union might put the home addresses. The dissent foresees that the disclosure of non- member  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 ad- dresses to the Union will add **37    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  unso- licited  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 mail- ings 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 pres- sure 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 enter- prises  who  could  link  a  particular  trade  with  a  regular federal paycheck. Although this may be true, the   **38  Union  has  sought  this  information  for  collective  bar- gaining 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 ad- dresses of retired federal workers receiving annuities for membership drive). Lastly, unwanted mailings are an un- fortunate 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 pres- sures for membership upon nonmember employees. The Labor  Statute  clearly  and  unambiguously  answers  this concern, proscribing, as an unfair labor practice, a union from "interfering with, restraining, or coercing any em- ployee in the exercise by the employee of any right under this chapter." 5 U.S.C. § 7116 (b)(1). Just as clearly, an em- ployee's rights include "the right to form, join,   **39   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

966 F.2d 747, *760; 1992 U.S. App. LEXIS 11687, **39;

140 L.R.R.M. 2361

Page 15

*760   refrain freely from joining a union would be sanc- tioned 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 nonmem- ber to join, be subject to sanctions for unfair labor prac- tices.  Third,  as  a  factual  matter  the  employees  whose addresses  are  subject  to  disclosure  fall  outside  the  cat- egory of managerial and supervisory employees and are least likely to attract job-related harassment. See 5 U.S.C.

§ 7103(a)(2)(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 **40   even follow an em- ployee home from work.

The  Navy's  and  the  dissent's  speculation  far  over- reaches 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 (au- thorizing the FLRA to issue cease and desist orders in ap- propriate circumstances). If desired, the union's safekeep- ing 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, **41    452 U.S. 915, 69 L. Ed. 2d

418, 101 S. Ct. 3049 (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, 28 L. Ed. 2d 531, 91 S. Ct. 1232 (1971); Prudential Ins. Co. of Am. v. NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928, 24 L. Ed. 2d 226, 90 S. Ct. 263

(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,  22  L.Ed.2d  709,

89 S.Ct. 1426 (1969) (enforcing NLRB's ruling that dis- closure 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,  17  L.Ed.2d  495,  87

S.Ct. 565 (1967) (employer required to provide informa- tion 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, 109 L.Ed.2d 659, 110 S.Ct. 2043

(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; **42   see Labor Statute, 5 U.S.C.A. § 7101(a)(1)

(1982) ("Experience in both private and public employ- ment indicates that the statutory protection of the right of employees to organize, bargain collectively, and partici- pate 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 presumptively award names and ad- dresses 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 fur- ther factfinding); Magma Copper Co., 208 N.L.R.B. (No.

53) 329 (1974) (same; names and addresses). For the rea- sons 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).

966 F.2d 747, *761; 1992 U.S. App. LEXIS 11687, **42;

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Page 16

*761

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  evis- cerate the protections afforded federal employees by the Privacy Act. The Privacy Act will still protect from dis- closure different kinds of information **43   to which a greater degree of privacy attaches. Moreover, for certain categories  of  information  such  as  wage  scales  and  dis- ciplinary records, an employee's privacy interest, where feasible, may be safeguarded by redacting from person- nel  records  the  names  and  social  security  numbers  of employees. See Ray, 112 S. Ct. at 541 (authorizing dis- closure of records after redaction of names, addresses and other identifying details); Rose, 425 U.S. at 352 (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. HN6  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). n10 Each agency that maintains records shall publish in the Federal Register

"upon establishment or revision a notice **44   of the ex- istence 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, n11 has promulgated the following routine use notice:

n10 The Navy has not challenged that disclo- sure of home addresses would not be "compatible with the purpose for which it was collected."

n11 Although the ALJ specifically found that

the  Navy  physically  maintained  the  home  ad- dresses sought, Navy Ships Parts Control Center, No. 2-CA--80243 (F.L.R.A. Sept. 21, 1988) (ALJ's Decision and Order) (reprinted at J.A. 19, 22 para.

17),  there is no dispute that the OPM retains re- sponsibility for the information.  Farmers Home II,

23 F.L.R.A. at 794.

para. j. To disclose information to officials of labor or- ganizations recognized under **45  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 mean- ing 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 associ- ated 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 de- termining 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.   **46   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

966 F.2d 747, *762; 1992 U.S. App. LEXIS 11687, **46;

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Page 17

*762    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 al- ternative means exist for communicating with bargaining unit employees, disclosure of home addresses is not 'nec- essary,' and the routine use does not apply." Id.  n12

n12  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.

**47

Despite Director Horner's 1987 representation that the OPM  would  promptly  issue  a  new  interpretation  con- sistent  with  the  position  taken  in  the  amicus  brief  and Horner'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 rou- tine  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 representa- tion 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. **48

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. n13 n13 We note in passing that there is no con- tention 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.

The parties have not debated whether the amicus brief position constitutes an interpretive or substantive rule, ap- parently 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   **49    (evaluat- ing 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 in- terpretive  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. n14

HN7  n14 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 in- terpretive." 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 legisla- tive rules by contrast, have substantive legal effect. Batterton,  648  F.2d  at  702.  "They  cannot  be  set aside by the courts unless found 'arbitrary,  capri- cious, an abuse of discretion or otherwise not in ac- cordance with law.' 5 U.S.C.A. § 706(2)(A) (1976)." Id. The Court of Appeals for the D.C. Circuit de- scribed  an  interpretative  rule  in  Batterton  in  the following way:

Non-binding action, in contrast, merely expresses an agency's interpretation, policy, or internal prac- tice 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 statu- tory term,  or internal housekeeping measures or- ganizing agency activities. They do not, however, foreclose alternate courses of action or conclusively affect rights of private parties. . . . Unlike legisla- tive rules, non-binding agency statements carry no more weight on judicial review than their inherent persuasiveness commands.

966 F.2d 747, *762; 1992 U.S. App. LEXIS 11687, **49;

140 L.R.R.M. 2361

Page 18

Id. at 702; see General Elec. Co. v. Gilbert, 429

U.S. 125, 141, 50 L.Ed.2d 343, 97 S.Ct. 401 (1976). In Batterton the court recognized that the distinc- tion  between  legislative  and  "non-binding"  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.

**50

966 F.2d 747, *763; 1992 U.S. App. LEXIS 11687, **50;

140 L.R.R.M. 2361

Page 19

*763

The Administrative Procedure Act excepts interpre- tive 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  rulemaking  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, 56 L. Ed. 2d 84, 98 S. Ct. 1646

(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   **51   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 proce- dures 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  rea- sonable opportunity be given for submission of views by those materially affected . . ."), cert. denied, 404 U.S. 828,

30 L. Ed. 2d 57, 92 S. Ct. 63 (1971). n15

n15 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 in- corporate 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."

**52

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 charac- terize 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 em- ployees. 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 prohibi- tion 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 **53   view, the FLRA points to the linguistic similarity between the "necessary" term of section 7114(b)(4)(B) and the "relevant and neces- sary" language of the routine use regulation and suggests that its expertise with

966 F.2d 747, *764; 1992 U.S. App. LEXIS 11687, **53;

140 L.R.R.M. 2361

Page 20

*764   respect to the former ought also to be deferred to in interpreting the latter. n16

n16 The FLRA explains that the "relevant and necessary"  language  of  the  routine  use  first  ap- peared in 1975 in a rule issued by OPM's predeces- sor,  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.).

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 in- formation within its possession under the Privacy Act. 5

U.S.C.A.   **54    § 552a(e)(4). The fact that the FLRA adjudicates questions of routine use when they arise un- der 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

(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 def- erence given the fact that in the Occupational Health and Safety Act, Congress delegated rulemaking and enforce- ment  functions  to  the  Secretary  and  adjudicative  func- tions 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 **55   the Secretary's interpretation. In keep- ing with the principles of Chevron, we must accord def- erence  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 interpre- tation 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 interpre- tation 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 dic- tates  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 dissem- ination 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 **56   for the D.C. Circuit when  it  considered  the  home  address  litigation  and  re- ceived 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 Horner's five and six year-old interpretation, which also contain a rep- resentation, still dormant, that the interpretation will be formally  revised  and  reissued.  Director  Horner  left  the OPM several years later without having followed through with her promise to formally revise the OPM's interpre- tation  "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 interpre- tation set forth in six-year old litigation and a letter, we will not defer to a stale and possibly abandoned interpre- tation.

We are uncertain that even the OPM would now ad- vance 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

966 F.2d 747, *765; 1992 U.S. App. LEXIS 11687, **56;

140 L.R.R.M. 2361

Page 21

*765    rule  deserving  of  deference,  see  Treasury,  884

F.2d  at  1456;   **57    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 inter- pretation after a span of nearly five years erodes our con- fidence that the interpretation is due any deference. For these reasons the OPM's amicus brief interpretation re- sembles an "agency litigating position that is  wholly un- supported by regulations, rulings, or administrative prac- tice" to which the principle of Chevron does not apply. Bowen v. Georgetown University Hospital, 488 U.S. 204,

212, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988). n17

n17  Although  the  agency's  interpretation  in Bowen was confined to appellate counsel's repre- sentations 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.

Without an alternative interpretation of the routine use notice, we find that the FLRA's determination that **58  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 re- view to the Navy.

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.

DISSENTBY: ALITO; ROSENN

DISSENT:

ALITO, Circuit Judge,  with whom Judge Stapleton

joins, dissenting:

I dissent, essentially for the reasons set out in Judge Rosenn's opinion, as well as in the decisions of the District of Columbia, First, Second, and Sixth Circuits. See FLRA v. Department of the Navy, 963 F.2d 124 (6th Cir. April

29, 1992) FLRA v. United States Dep't of Veterans Affairs,

958 F.2d 503 (2d Cir. 1992); FLRA v. United States Dep't of the Navy, 941 F.2d 49 (1st Cir. 1991); FLRA v. United States Dep't of Treasury Fin. Mortgage Service, 884 F.2d

1446  (D.C.  Cir.  1989),   **59    cert.  denied,  493  U.S.

1055, 107 L.Ed.2d 947, 110 S.Ct. 863 (1990). I express no view whether the disclosures at issue would substan- tially further the public interest in collective bargaining or whether they are likely to produce substantial adverse effects. I do not believe that it is necessary to confront these  questions  in  order  to  decide  that  Exemption  6  of the Freedom of Information Act,  5 U.S.C. § 552(b)(6), applies in this case. It seems clear to me that all federal employees -- from Cabinet officers to GS1's -- have a pri- vacy interest of some weight in their home addresses and that there is no public interest cognizable under FOIA in the disclosure of these addresses.

ROSENN, Circuit Judge, dissenting.

I believe that the majority's evaluation of the compet- ing privacy and public interests in this case is at variance with recently enunciated law. Its refusal sua sponte to de- fer to the Office of Personnel Management's (OPM) regu- lation on routine use because of insufficient public notice of the agency's interpretation of the regulation is unsup- ported by legal authority or sound reason. Therefore,  I respectfully dissent from the majority's holding that the federal government **60   and its agencies must disclose their employees' home addresses and that such disclosure

"does not eviscerate the protections afforded federal em- ployees by the Privacy Act."

I.

The Union representing the employees,  Local 1156

of the American Federation of Government Employees

(the Union), is certified already under the Federal Service

Labor-Management Relations Statute,  5 U.S.C. § 7101

(the Labor Statute), as the

966 F.2d 747, *766; 1992 U.S. App. LEXIS 11687, **60;

140 L.R.R.M. 2361

Page 22

*766    exclusive bargaining unit of several units of the Department  of  Navy  Employees.  Therefore,  the  Union does not need the employees' addresses in order to attain exclusive bargaining status for the unit employees. Thus, denying the Union the employees' home addresses is di- rected only to those employees who have refused to join the Union or who have refused to consent to the release of their home addresses.

These non-Union employees already are represented by  the  Union  for  collective  bargaining  purposes;   the Union is able to bind them with respect to wages, hours, and conditions of employment. I cannot see how man- dating  release  of  their  home  addresses  in  face  of  their refusal of consent advances any perceptible public inter- est. Disclosure can only subject the employees to probable

**61   solicitations, pressures to become members of an organization they do not wish to join, and obvious safety and harassment risks that accompany public disclosure of names and addresses of governmental employees. Hence, I disagree with the majority's conclusion that the "strong public interest in collective bargaining" -- a characteriza- tion of the extent of the public interest neither supported by  the  record  nor  the  law --  outweighs  the  employees' undisputed meaningful privacy interests in nondisclosure of their home addresses.

II.

My analysis begins with the Privacy Act, 5 U.S.C. §

552a, which generally forbids federal agencies to release information  contained  in  employees'  personnel  records without  the  prior  written  consent  of  the  individual  to whom the record pertains. The Act, however, lists eleven exceptions to this general prohibition, two of which are at  issue  here:   the  release  of  information  for  a  routine use, 5 U.S.C. § 552a(b)(3), and the release of informa- tion required under the Freedom of Information Act,  5

U.S.C. § 552a(b)(2) (FOIA). The FOIA, a general gov- ernment disclosure statute,  exempts from its provisions personnel  files  "the  disclosure  of  which  would  consti- tute a **62    clearly unwarranted invasion of personal

privacy." 5 U.S.C. § 552(b)(6)("Exemption 6"). To deter- mine whether information may not be released under the FOIA's Exemption 6, the courts must balance the individ- ual employee's privacy interest against the general public interest in disclosure.

As the majority observes, the particular balancing is- sue raised in this case has been extensively litigated for almost a decade. This court previously upheld the FLRA's ruling requiring federal agencies to divulge the names and home  addresses  of  bargaining  unit  employees  to  union representatives.  United States Dep't of the Navy v. FLRA,

840  F.2d  1131  (3d  Cir.),  cert.  dismissed,  488  U.S.  881

(1988). We recognized in that case a "meaningful interest in the privacy of information concerning the employees'  homes." Id. at 1136. Nonetheless, we concluded that the public  interest  in  collective  bargaining  outweighed  the privacy interest. The United States Supreme Court's sub- sequent decision in Reporters Committee, 489 U.S. 749,

103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), however, sig- nificantly alters the balancing calculus under the FOIA and modifies how courts **63    may define the public interest in disclosure under the FOIA. Thus, I turn first to the most critical issue in this appeal, the definition of the public interest in the release of non-union employees' home addresses to the exclusive bargaining agent.

A. Public Interest in Disclosure

The majority here continues to adhere to the view that the privacy interest of federal employees must give way to the elusive and amorphous public interest in collective bar- gaining, notwithstanding Reporters Committee. Relying on Congress' statement when enacting the Labor Statute and on our Department of the Navy decision, the majority asserts that what is at stake in releasing these address lists to the Union is the facilitation of the collective bargaining process in the federal sector.

The majority quotes 5 U.S.C. § 7101. Maj. op. at 6-7. That section states that the right to "bargain collectively, and participate through labor organizations of

966 F.2d 747, *767; 1992 U.S. App. LEXIS 11687, **63;

140 L.R.R.M. 2361

Page 23

*767    their own choosing" "safeguards the public in- terest" and "contributes to the effective conduct of pub- lic business." (Emphasis added). The majority concludes that collective bargaining alone, under the Labor Statute, achieves these goals. However,   **64   Congress also in- tended to protect a government employee's right to choose not to join a Union. Although section 7102 provides that a government employee shall have the right to join a labor organization,  it also provides that an employee has the right "to refrain from any such activity, freely and with- out fear of penalty or reprisal, and each employee shall be protected in the exercise of such right." 5 U.S.C. § 7102

(emphasis added). The legislative history also expresses concern with protecting this right. 1978 U.S. Code Cong.

&  Adm.  News  at  2824.  Thus,  Congress  did  not  intend to promote collective bargaining at the expense of those who choose to refrain from union participation. Contrary to this express congressional intent, the effect of the ma- jority's opinion would compel those employees who do not wish to participate in union activities to forfeit their right of privacy.

Whether collective bargaining may be advanced by providing  a  union  with  the  addresses  of  non-members in a bargaining unit already represented by the union as the unit's exclusive bargaining agent is doubtful. As the majority acknowledges, the Union, as the exclusive bar- gaining agent, has the undisputed authority to bargain for and represent all employees in the bargaining unit, **65  whether members of the Union or not. It may bind them with respect to wages, hours, and conditions of employ- ment. In this instance, the Union even has the names of the non-members whose home addresses it seeks in these proceedings. The FLRA does not contend that denying the Union access to the address lists of the non-members in the bargaining unit will foreclose its ability to com- municate with its bargaining unit employees. The FLRA admits that the Union already has available other means of communication with the non-Union member bargaining unit employees, such as worksite visits, newsletter distri-

butions, desk drops, use of meeting rooms, the steward system, and union bulletin boards.

As we observed in Department of the Navy, the FLRA identified the incremental advantage to collective bargain- ing gained by home mailings as the ability to communi- cate with non-union employees at a time and frequency

"completely within the discretion of the union" without the possibility of agency interference in the distribution of the message.  840 F.2d at 1139 (quoting Farmer's Home Administration Finance Office, St. Louis, Mo., 23 F.L.R.A.

788,  796-97 (1986)). **66    Moreover,  the FLRA as- serts such mailings reach unit employees where they "may consider the union's communication without regard to the time constraints inherent in their work environments," and without any feelings of restraint because of the presence of agency management in the workplace. Id.

It must be emphasized, however, that compelling the release of employees' home addresses provides the Union with the addresses of only those who previously had been inaccessible to the Union for reasons special to each em- ployee.  According  to  the  majority,  the  chief  advantage then  to  the  Union  of  forcing  the  agency  to  release  the addresses of employees is to provide the Union with the

"home addresses in order to send home mailings to non- member employees for their information and participa- tion." Maj. op. at 27. Thus, FLRA's generalized reference to the public interest served by disclosure amounts to the Union's incremental advantages over other means of ac- cess  to  non-Union  members  who  elect  to  refrain  from any  Union  activity  or  who  are  unwilling  to  consent  to the release of their home addresses. The record does not reveal how greater access to non-union members signifi- cantly improves **67  the public interest in the exclusive collective bargaining authority the Union already enjoys. Moreover, since our previous decision in Department of the Navy, the Supreme Court's decision in Reporters Committee also raises a formidable obstacle to the facili-

tation of collective bargaining as the relevant

966 F.2d 747, *768; 1992 U.S. App. LEXIS 11687, **67;

140 L.R.R.M. 2361

Page 24

*768    public  interest  in  disclosure.  In  that  case,  the Court significantly narrowed the scope of disclosure in- terests which could be considered for purposes of balanc- ing under the FOIA. In Reporters Committee, CBS news correspondents sought to compel the FBI under the FOIA to release the "rap sheets" for one Charles Medico. These rap sheets included information about Medico's criminal history, some of which already was available publicly in state  court  records,  as  well  as  date  of  birth  and  physi- cal characteristics. The Department of Justice refused to release the information. Although conceding that the rap sheets were law enforcement records, it contended that the information was exempt from FOIA disclosure because their release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. §

552(b)(7)(C) ("Exemption 7(C)").

Upholding the **68  Government's refusal to release the data, the Court held that the only disclosure interests which counted under Exemption 7(C) of the FOIA were interests related to the FOIA's central purpose, "to open agency action to the light of public scrutiny." 489 U.S. at

772 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372,

48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976)). The Court further noted that the gravity of the public interest in disclosure does not turn upon the identity or particular purpose of the requesting party; "the rights of the two press respondents

seeking the rap sheet information  are no different from those that might be asserted by any other third party, such as a neighbor or prospective employer." Id. at 771.

The  Court's  analysis  of  Exemption  7(C)  applies  to the substantially similar Exemption 6 as well.   FLRA v. United  States  Dep't  of  Treasury,  884  F.2d  1446,  1451

(D.C. Cir. 1989), cert. denied, 493 U.S. 1055, 110 S.Ct.

863 (1990). Indeed, the courts considering this question after Reporters Committee almost unanimously have held that the only disclosure interest relevant to Exemption 6 is the interest in ascertaining the character or **69   con- duct of the government agency. See, e.g., FLRA v. United States  Dep't  of  Veterans  Affairs,  958  F.2d  503  (2d  Cir.

1992);  FLRA  v.  United  States  Dep't  of  Navy,  941  F.2d

49, 56-57 (1st Cir. 1991); Hopkins v. United States Dep't of HUD, 929 F.2d 81, 88 (2nd Cir. 1991); Ray v. United States Dep't of Justice,  908 F.2d 1549,  1555 (11th Cir.

1990)  rev'd  on  other  grounds,  116  L.  Ed.  2d  526,  112

S.Ct. 541 (1991); United States Dep't of Treasury,  884

F.2d at 1451. But see FLRA v. Dep't of Commerce, 954

F.2d 944 (4th Cir. 1992).

Recently,   the   United   States   Supreme   Court   ex- pressly  extended  the  Reporters  Committee  standard  to an Exemption 6 case.  United States Dep't of State v. Ray, No. 90-747, 116 L. Ed. 2d 526, 1991 U.S. LEXIS 7177,

112 S. Ct. 541 (1991). In Ray, the Court stated:

As we have repeatedly recognized, FOIA's basic policy of "full agency disclosure unless information is exempted under clearly delineated statutory language," . . . focuses on the citizens' right to be informed about "what their gov- ernment is up to." Official information that sheds light on an agency's **70    performance of its statutory duties falls squarely within that statutory purpose.  Department of Justice v. Reporters Committee, 489 U.S. at 773 (quot- ing Department of Air Force v. Rose, 425 U.S., at 360-

61) (internal citations omitted).

1991  U.S.  LEXIS  7177,  at  23.  The  Court  agreed  that the public interest under the FOIA was knowing whether the  State  Department  had  adequately  monitored  Haiti's compliance with its promise not to prosecute political re- turnees. Contrary to the Court of Appeals, however, the Court  concluded  "that  this  public  interest  has  been  ad- equately served by disclosure of the redacted interview summaries  and  that  disclosure  of  the  unredacted  docu- ments would therefore constitute a clearly unwarranted invasion of the interviewees' privacy."

In light of this substantial change in FOIA law,  the public  interest  in  collective  bargaining  that  previously had been balanced in favor of disclosure because of the Labor  Statute  may  no  longer  be  considered  in  balanc- ing the competing interests implicated in an Exemption 6 inquiry. See

966 F.2d 747, *769; 1992 U.S. App. LEXIS 11687, **70;

140 L.R.R.M. 2361

Page 25

*769  Dep't of Treasury, 884 F.2d at 1451-53. Unless the names of the employees **71   and their home addresses can be seen as communicating information about govern- ment operations, Exemption 6 of the FOIA prevents their release. Because this information is not relevant to moni- toring government operations, it should not be released. The  majority  declares  that  the  Court's  holding  in Reporters Committee is inapplicable to this case because the request for employees' home addresses did not origi- nate as a straight FOIA request but as a request by the Union  under  section  7114(b)(4)  of  the  Labor  Statute, which in turn implicates the Privacy Act and ultimately the FOIA.  United States Dep't of the Navy, Portsmouth Naval Shipyard, 37 F.L.R.A. (No. 39) 515, 526-27 (1990)

(Portsmouth). At oral argument, the FLRA argued "that this case begins and ends in the Labor Statute."

I  do  not  think  that  the  plain  meaning  of  section

7114(b)(4) of the Labor Statute supports the majority's attempt  to  distinguish  Reporters  Committee.  That  sec- tion requires employers to provide necessary information to  federal  sector  union  representatives  only  "to  the  ex- tent not prohibited by law." Thus, Congress recognized the possible limitations of other statutory and decisional

**72   law. Nothing in the text of this section lessens the full thrust of such prohibiting laws; no reference is made to the independent public interest advanced by the Labor Statute. The majority interprets this statute to modify the FOIA itself by relying on the federal sector labor statute's own general objectives. Such an imaginative interpreta- tion  finds  no  support  in  the  text  of  the  statute;  "to  the extent not prohibited by law" notably lacks any qualifica- tion or modification. Therefore, I agree with Judge Ruth Bader Ginsburg that, although having begun with the fed- eral sector labor statute, one ends up "wholly within the FOIA's  domain."  Dep't  of  Treasury,  884  F.2d  at  1457

(Ruth  Bader  Ginsburg,  J.,  concurring).  See  also  FLRA v. Dep't of Navy, 941 F.2d 49, 57 n.11 ("In light of the Supreme  Court's  clear  statement  of  FOIA  principles  in Reporter's Committee,  we do not think a distinction in

the  relevant  'public  interest'  may  any  longer  be  drawn where the information request was made under the Labor Statute rather than under the FOIA directly.").

Here, we have a situation, not uncommon to statutory interpretation,  where one statute implicates **73    an- other which in turn refers to other independent legislation. The FLRA asks us to adopt a wholly impracticable new tenet of statutory construction which views a phrase in an earlier statute as altering the customary interpretation of a different phrase in a later statute by implanting therein the earlier statute's specific objectives. This self-serving interpretive technique presumes that Congress never con- sidered the proper balancing of the various statutory inter- ests. The Navy argues, and I agree, that when Congress in 1978 fashioned the phrase "to the extent not prohib- ited by law," it undoubtedly had in mind the Privacy Act enacted  four  years  earlier.  This  sequence  of  legislative events suggests that Congress added this limiting provi- sion to assure that the protections afforded by the recently enacted Privacy Act would not be attenuated by the Labor Statute's disclosure section. Congress obviously exercised its judgment that a law which prohibits the disclosure of information prevails over other statutory disclosure sec- tions.

In  light  of  such  an  unambiguous  provision,  I  be- lieve that we must refrain from accomplishing indirectly through  expansive  judicial  construction  what  Congress

**74   elected not to do by simple legislation. The FLRA calls such construction "harmonizing." On the contrary, it sounds dissonant to me. One hears little harmony when the distinctive positions of these three statutes are dom- inated by the FLRA's voice that emphasizes the interest in federal sector collective bargaining above the Privacy Act's solicitude for the privacy of federal employees' per- sonnel  files.  Indeed,  each  statute  is  presumed  to  be  in harmony with others and courts must give each the full benefit of the interpretation laid down by the United States Supreme Court. The FLRA next contends that applying the narrow understanding of "public interest"

966 F.2d 747, *770; 1992 U.S. App. LEXIS 11687, **74;

140 L.R.R.M. 2361

Page 26

*770    adopted  by  the  Court  in  Reporters  Committee to requests arising out of section 7114 would "gut" that disclosure  section,  making  it  more  unlikely  that  docu- ments which are now readily available to federal sector unions,  such  as  employee  disciplinary  records,  will  be provided to the Union in the future. The FOIA, however, is  not  the  only  exception  to  the  Privacy  Act's  prohibi- tion of the release of employee information. Information useful  to  union  representation  and  negotiation  may  be obtainable under other exceptions to the Privacy **75  Act, most notably the "routine use" exception.  5 U.S.C. §

552a(b)(3). Indeed, there are over thirty routine uses for government maintained records published by the OPM.

49 Fed.Reg. 36,949, 36,956.

In addition, the Privacy Act only bars release of in- dividuals' records without their consent;  the Union can acquire any information merely by asking the represented employees to authorize the release. Thus, when a union is representing the interests of particular employees en- gaged, for example, in a dispute with a federal employer, the  employees  can  readily  authorize  the  union's  access to any necessary personal information contained in their personnel file. Further,  when a union seeks general in- formation relevant to a large number of employees, such as payroll data, such information can be depersonalized merely by redacting the names or other information iden- tifying individual employees. Therefore, the Privacy Act hinders only the Union's unauthorized access to personal, privacy-invasive information about a particular employee or employees. Such hindrance is easily surmountable with the Union members' cooperation and should not seriously hamper the Union in its effort to   **76   fulfill its respon- sibilities as the employees' bargaining agent.

Rejecting  the  majority's  conclusion  that  Reporters Committee  is  inapposite  here,  I  believe  that  the  Union must demonstrate a reason for disclosure that meets the FOIA  analysis  articulated  by  the  Court.  In  light  of  the intervening change in the law controlling this issue, we thus must reconsider our pre-Reporters Committee deci- sion in Department of the Navy, 840 F.2d at 1136-37. In that case, we relied exclusively on the public interest in fully-informed collective bargaining in the federal sec-

tor, an interest not directly related to FOIA's purpose in opening to scrutiny a government agency or department. The  release  of  these  Navy  employees'  addresses  to  the Union by itself does not reveal any information about the operation or character of the Department of the Navy. n1

Thus, "collective bargaining" does not qualify as a public interest directly served by disclosure of names and home addresses of federal employees.

n1 It may be argued that some "second-stage" FOIA-related disclosure benefit not identified by Department of the Navy could emerge after com- munication between a union and employees. I agree with the majority that consideration of the deriva- tive use theory is unnecessary. See maj. op. at 22, n.9.

**77

B. Privacy Interest

Confronted  here  with  no  FOIA-related  public  interest, we  need  only  the  barest  individual  privacy  interest  to require us to deny the Union's request to compel disclo- sure of the requested information. That obstacle is easily surmounted because "this court's case law recognizes that individuals generally have a meaningful interest in the pri- vacy of information concerning their homes which merits some protection." Dep't of Navy, 840 F.2d at 1136; see also I.B.E.W. Local Union No. 5 v. United States Dep't of HUD, 852 F.2d 87, 89 (3rd Cir. 1988). As acknowledged by the majority, our assessment of the privacy interest as meaningful remains untouched by Reporters Committee. Maj. op. at 21.

In light of the exclusion of collective bargaining as a  relevant  public  interest,  I  believe  this  case  merits  a fuller  amplification  of  the  privacy  interest  at  issue.  In Wine  Hobby,  USA,  Inc.  v.  United  States  Interval  Rev. Service,  502  F.2d  133  (3d  Cir.  1974),  a  case  relied  on by Department of the Navy, we observed that "there are few things which pertain to an individual in which his pri- vacy has traditionally been **78    more respected than his own home." Id. at

966 F.2d 747, *771; 1992 U.S. App. LEXIS 11687, **78;

140 L.R.R.M. 2361

Page 27

*771     137;  accord  Heights  Community  Congress  v. Veterans 's Administration, 732 F.2d 526, 529 (6th Cir.) cert.  denied,  469  U.S.  1034,  83  L.  Ed.  2d  398,  105  S. Ct.  506  (1984).  Indeed,  from  antiquity  one's  home  has been likened to a castle into which not even an uninvited king may enter. See Rowan v. United States Post Office Dep't, 397 U.S. 728, 737, 25 L. Ed. 2d 736, 90 S. Ct. 1484

(1970). The home as a sanctum from the searching eyes and ears of the government is a principle enshrined as a constitutional tenet by the Fourth Amendment's prohibi- tion against unreasonable searches of the home, no less a refuge than the privacy of "persons, papers, and effects." Even today,  when sophisticated mail and telephone marketing techniques have rendered most homes an easy mark for an astonishing variety of unwanted sales pitches, opinion  polls,  and  other  solicitations,  the  fundamental principle that a person has a right to keep out unwanted intruders "has lost none of its vitality." Rowan, 397 U.S. at

737. No illustration of the meaningful importance of pri- vacy in one's home address is more vividly portrayed than in the recent   **79    slaying of Judge Robert S. Vance of the United States Court of Appeals for the Eleventh Circuit. He was killed in the opening of a package con- taining a pipe bomb that was mailed to his home in Mt. Brook, Alabama.   United States v. Moody, 762 F. Supp.

1491 (N.D. Ga. 1991). The individual who sent the bomb, Walter Leroy Moody, Jr., also sent death threat letters to all Eleventh Circuit Court of Appeals judges. Id. Moody had a vendetta against the court system stemming from his 1972 conviction on charges of possessing pipe bombs. Not only are judges at risk with the disclosure of their home addresses, but so are many employees in positions of trust and confidence, especially those who occupy high government office and who carry controversial and sensi- tive responsibilities. Our society's continued recognition of this right is evidenced by the common usage of postal boxes and unlisted telephone numbers and by the univer- sal practice of employers who refuse to release to inquirers an employee's home address or telephone number with- out the employee's authorization. The Supreme Court has observed that "congressional concern for the protection of the kind of confidential personal data."   **80   Dep't of Air Force v. Rose, 425 U.S. 352, 372, 48 L. Ed. 2d 11,

96 S. Ct. 1592 (1976).

The majority objects to a generalized analysis of the privacy interest and instead urges a more narrow defini-

tion in terms of release to the Union only. It emphasizes

"that only an exclusive bargaining representative may re- quest home addresses under the Labor Statute." Maj. op. at 27. In Department of the Navy we did not adopt such a restricted reading of the privacy interest, and both prac- tical and jurisprudential reasons suggest we do not do so here. As a practical matter, once these home addresses are released to the Union, there is nothing to assure us that the Union or its members may not further disseminate the information. Indeed, the FLRA concedes that "any list of names and home addresses released to the Union  is sub- ject to uses that may not have been contemplated when it was originally disclosed. For example, the sale or trans- mittal of such a list for commercial or charitable purposes could, of course, occur." Portsmouth, 37 F.L.R.A. (No. 39) at 533. Local unions have hundreds and sometimes thou- sands of members,   **81  see United States v. Local 560, International Brotherhood of Teamsters 591, 581 F. Supp.

279, 287 (as of May 1982, Local 560 had approximately

10,000 members employed by approximately 425 com- panies in the metropolitan New Jersey-New York area). There is nothing to foreclose individual members from having access to the information released to the Union. Who can foretell whether a disappointed, embittered, or even emotionally disturbed member may not have access to  the  disclosed  information  and  use  it  to  harass  non- union employees and their families. n2

n2  The  FLRA  refuses  to  acknowledge  such legitimate  privacy  concerns.  See,  e.g.,  Veterans Admin., Riverside Nat'l Cemetery, 33 F.L.R.A. (No.

39) 316, 317 (1988) (FLRA ordered that home ad- dresses be released even though 22 of the 34 mem- bers of the bargaining unit requested that the agency keep their addresses "confidential.");  Dep't of the Navy,  U.S.  Naval  Ordnance  Station,  33  F.L.R.A.

(No. 1) 3,5 (1988) (Although one employee testi- fied that he had been threatened at his home by a union member three years earlier, the FLRA con- cluded that none of the employees believed that they would  be  in  imminent  danger  if  the  union  knew where  they  lived  and  thus  ordered  the  release  of home  addresses  to  a  union  that  had  been  denied the home addresses only of those employees who had indicated in writing that they did not want this information released.).

**82

966 F.2d 747, *772; 1992 U.S. App. LEXIS 11687, **82;

140 L.R.R.M. 2361

Page 28

*772

The  degree  of  common  law  respect  for  privacy  de- pends in part on the extent of dissemination of the partic- ular information which already has occurred.  Reporters Committee, 489 U.S. at 763 n. 15. Partial disclosure of a  particular  fact,  however,  will  not  render  it  public  for all  future  purposes  or  authorize  disclosure  in  a  signifi- cantly different context. Thus, in Reporter's Committee, the Court held that the "scattered disclosure of the bits of information contained in a criminal history  rap sheet" did not justify "revelation of the rap sheet as a whole." Id. at 764. Here, although many of these employees' home ad- dresses may be obtained if one already knows their names by consulting a telephone directory, we believe it is highly unlikely that their names, addresses, and identification as Navy employees are anywhere disclosed together without the employees' consent. Under Reporters Committee, the lack of prior disclosure of the requested information as a whole bolsters the conclusion that these employees have an undiluted privacy interest at stake.

Furthermore, a home or residential building's address of- ten reveals far more than **83    just where an individ- ual lives; it can identify specific and sometimes personal characteristics about residents. It is the ability of home address lists to communicate specific traits shared by a community  which  give  them  considerable  commercial value to businesses, solicitors, marketing experts, insur- ance companies,  social scientists,  pollsters,  and others. Thus, disclosure of one's home address and name could simultaneously divulge to an astute or interested observer significant and highly personal details about one's life as well as render the person and his/her family more eas- ily exposed to commercial, political, social and ominous safety invasion.

Added to the weight of the interest in keeping private one's home address is the concern in preventing the gen- eral  public  from  knowing  where  one  works,  especially when  one's  occupation  involves  sensitive  or  controver- sial issues. Here, disclosure of the employees' names and home addresses also would reveal that they work for the Department of Navy, a fact which some employees may not want to be generally known for security or other rea- sons.  The  employee  is  often  the  best  judge  of  risks  to his/her privacy and family safety. The employees'   **84  unwillingness to consent to the requested address disclo- sure sends an important message in weighing any meta- physical public interest in the disclosure.

Those employed by a federal agency such as the Navy also may find themselves the unwilling target of the opin- ions  and  perhaps  the  ire  of  others  opposed  to  the  gov- ernment's general policies or specific conduct. It is one thing to encounter protestors in public forums or even at the workplace; it is quite another to have them confront an  employee and  possibly  his/her  family  at their  home in  the  darkness  of  the  night  or  in  the  anonymity  of  an unsigned letter or package. This scenario would be a real- istic possibility if federal employees' names and addresses could be made generally available under the FOIA. See Dep't of State v. Ray, 116 L. Ed. 2d 526, 112 S.Ct. 541 at n.12 (finding disclosure of interviewees' names "a sig- nificant invasion of their privacy because it would subject them to possible embarrassment and retaliatory action"). Of course, one could expect even more threatening conse- quences to federal employees working in highly security- sensitive positions. The release of employees' names and addresses may be of great significance **85   to federal employees who want to retain control over the dissemi- nation of their names

966 F.2d 747, *773; 1992 U.S. App. LEXIS 11687, **85;

140 L.R.R.M. 2361

Page 29

*773   and home addresses to others for reasons supple- mental to the ordinary privacy concerns about the location of one's home.

Our interpretation of the FOIA also supports a deci- sion to use a generalized definition of the privacy interest at stake here. One court has observed that the defining and balancing of interests under the FOIA's Exemption 6 must be conducted at a general level, without particular reference to the requestor's specific uses for the informa- tion.   United States Dep't of Air Force, Scott A.F. Base v.  FLRA,  838  F.2d  229,  233  (7th  Cir.)   cert.  dismissed

488 U.S 880 (1988). This follows from the FOIA's use of general language that "any person" may obtain informa- tion.   5 U.S.C. § 552(a)(3). The United States Supreme Court likewise noted, "The Freedom of Information Act  clearly intended to give any member of the public as much right to disclosure as one with a special interest therein." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). Thus, when ascertaining the interest in privacy and the public interest in disclosure, we **86   must consider "the several uses to which many people would put the information." Scott A.F. Base, 833

F.2d at 233. n3

n3 Curiously, the court in Scott A.F. Base ap- plied its generalized interest analysis only to one side  of  the  balance,  the  public  interest  in  disclo- sure. Although it considered the many legitimate and unobtrusive uses which favored disclosure, the court,  when  weighing  the  employees'  privacy  in- terest,  did  not  likewise  generalize  its  analysis  to consider the possible invasive uses of the address lists. Courts may be free to choose the relevant level of generality when conducting judicial balancing of interests; the failure to generalize equally on both sides  of  the  balance,  however,  can  skew  the  re- sults. See Fried, Two Concepts of Interests:  Some Reflections on the Supreme Court's Balancing Test,

76 Harv.L.Rev. 755, 763 (1963).

The majority asserts that my conclusion leaves fed- eral  sector  unions  at  a  severe  disadvantage  when  com- pared to private sector unions,   **87   which ordinarily

have  access  to  such  lists,  and  that  such  a  variance  in treatment is unfounded. On the other hand, there is a dis- tinction between these two categories of workers which reasonably could justify the different treatment accorded the disclosure of address lists. As noted above, persons who work for the federal government have an interest in preserving control over dissemination of their employer identification and home addresses which is different and perhaps more substantial than private sector employees. Federal employees may often discover that they are re- garded as the personification of Government policies and thus the unwilling targets of persons or groups who op- pose  those  policies.  One  can  reasonably  conclude  that Congress thought of this distinction when it specifically prohibited in the Labor Statute the disclosure of informa- tion protected by other laws, most notably the Privacy Act. There is no such general prohibition under the National Labor Relations Act governing the private sector.

In addition,  there are numerous other important re- spects in which public employment is treated differently than  private  employment  under  federal  law.  See  Dep't of  Navy  v.  FLRA,  815  F.2d  797,  799  (1st  Cir.  1987).

**88     For  example,  unlike  most  private  employees, federal employees are not entitled to strike,  5 U.S.C. §

7116(b)(7), and most cannot bargain over wages, which are set by Congress.   5 U.S.C. §§ 7102(2), 7103(a)(14). Federal employees, however, enjoy additional protections in the workplace not granted to private sector employees, namely, those provided by the Bill of Rights in the Federal Constitution. Relevant to this case, the personal informa- tion contained in the employment files of federal employ- ees is protected by the Privacy Act; in the private sector, employees are not so protected. It therefore does not fol- low,  as  the  majority  contends,  that  parity  is  mandated between federal sector and private sector employees.

On the personal side of the balance, therefore, we have the Navy employees' meaningful interest in maintaining privacy in their names,  home addresses and identity as Navy employees. On the public interest side of the bal- ance, we have no FOIA-related interest. Accordingly, I would hold that the disclosure of Navy employees' home addresses without their consent to

966 F.2d 747, *774; 1992 U.S. App. LEXIS 11687, **88;

140 L.R.R.M. 2361

Page 30

*774    the union collective bargaining agent is not re- quired by the FOIA because, under Exemption 6, release would  constitute   **89    an  invasion  of  privacy  which is not clearly warranted by any FOIA-recognized public interest in disclosure.

III. DISCLOSURE PERMITTED AS A ROUTINE USE

The routine use exception to the Privacy Act permits the release of records when release is for a purpose which is compatible with the purpose for which the record was collected.   5  U.S.C.  §§  552a(b)(3),  (a)(7).  For  disclo- sure to be allowed as a routine use exception, the agency charged with maintaining the system of records must first publish notice of the routine use in the Federal Register.

5 U.S.C. § 552a(e)(4)(D). The FLRA contends that re- lease to unions of employees' names and home addresses constitutes a "routine use" of those records. However, the OPM, the agency charged with maintaining these person- nel records, has taken the contrary position that the "rou- tine use" exception authorizes release of such records to unions only when there is no other adequate alternative means of contacting the employees.

Congress  established  the  OPM,  formerly  the  Civil Service  Commission  (CSC),  to  "provide  leadership  in personnel  matters  throughout  the  Federal  service,"  12

Fed. Reg. 1259. The agency maintains office personnel files that contain **90    federal employees' names and home addresses. Concentration in one agency of the re- sponsibility  for  the  record-keeping  practices  of  all  the federal agencies encourages the universal observance of federal record retention and disclosure laws such as the Privacy Act and imposes salutary and uniform standards of efficient record handling across all government agen- cies.  Farmers Home II, 23 F.L.R.A. (No. 101) at 794. The Privacy Act provides that routine uses are to be identi- fied and published by the agency which "maintains" the records.  5 U.S.C. § 552a(e).

Pursuant to section 552a(e)(4)(D) of the Privacy Act, n4 the OPM has since 1984 consistently identified as a routine use in the Federal Register the disclosure of in- formation to officials of federal sector labor organizations

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 (Sept.

20,  1984).  The  United  States  Supreme  Court  has  dis- cussed the amount of deference due to the promulgating

**91    agency's interpretation of its rules. In Martin v. Occupational Safety and Health Review Commission, the Court stated,

n4  This  section  provides  that  every  "agency that maintains a system of records shall . . . (4) . .

. publish in the Federal Register at least annually a notice of the existence and character of the system of records, which notice shall include . . . (D) 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. § 522(e)(4)(D).

It is well established "that an agency's construction of its own regulations is entitled to substantial deference." In situations in which "the meaning of regulatory  language is not free from doubt," the reviewing court should give effect to the agency's interpretation so long as it is "rea- sonable," that is, so long as the interpretation "sensibly conforms to the purpose and wording of the regulations." Because applying an agency's regulation to complex or changing circumstances calls upon the **92    agency's unique expertise and policymaking prerogatives, we pre- sume that the power authoritatively to interpret its own regulations is a component of the agency's delegated law- making powers.

Martin, 113 L. Ed. 2d 117, 111 S.Ct. 1171 59 U.S.L.W.

4197, 4199 (citations omitted).

The FLRA and the OPM differ in their definition of

"necessary" for purposes of the routine use exception. The FLRA takes the position that "necessary" here means the same as "necessary" under section 7114(b)(4) of the Labor Statute, and that release of names and home addresses, because of the perceived unique advantages

966 F.2d 747, *775; 1992 U.S. App. LEXIS 11687, **92;

140 L.R.R.M. 2361

Page 31

*775   it provides unions, is per se necessary.  Farmers Home II 23 F.L.R.A. (No. 101) at 794. The FLRA thus refuses to consider the adequacy of alternative means of communication with employees, even in the situation we have here where only the addresses of non-union employ- ees are denied to a union already recognized for collective bargaining purposes. The OPM takes a more restrictive view  of  "necessary"  than  the  definition  adopted  by  the FLRA.  As  noted  by  the  majority,  a  1986  amicus  brief filed  by  OPM  and  a  subsequent  letter  from  the  OPM's Director  published   **93    its  opinion  that  names  and home addresses are "necessary" to the unions only if no other adequate means of communication existed.

The majority correctly rejects the FLRA's argument that  its  construction  of  OPM's  routine  use  regulation should  be  accorded  greater  deference  than  OPM's  in- terpretation  of  its  own  regulation.  Maj.  Op.  at  39-40. Nonetheless, the majority rejects OPM's interpretation of its routine use regulations, not on the basis of their sub- stance or any lack of authority, but solely on the ground that OPM's method of dissemination of its interpretation is wholly inadequate to notify the public of the interpre- tation. The majority holds:

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 dissemi- nation  is  wholly  inadequate  to  notify  the  public  of  the agency's interpretation.

Id. at 41.

This  reason  for  not  deferring  to  an  agency's  inter- pretation  of  its  own  published  regulation  has  no  sound basis. This reason was never raised by the Union or the FLRA in these or, as far as I can discern, in any of the prior litigation with the Department of the **94   Navy. The FLRA has never complained of any prejudice or lack of notice of the OPM's interpretation in the voluminous litigation in which it has been engaged over the privacy is- sue of federal employees in their names and addresses. In

fact, the FLRA itself originally held that federal agencies were not required to release employee home addresses to unions in Farmers Home Administration Finance Office,

19 F.L.R.A. (No. 21) 195 (1985). Here, neither the Union nor the FLRA complains that they have been prejudiced in any manner because OPM's interpretation of its regula- tion has not had wider dissemination. Like Minerva, the goddess of wisdom, who is said to have leaped forth from the brain of Jupiter, the question of notice has suddenly burst forth in the majority's written opinion.

Failure of an agency to publish its policy is no de- fense to one who knew of the policy.  Perri v. Dep't of the Treasury, 637 F.2d 1332 (9th Cir. 1981). Even a failure to publish at all is not sufficient to justify a refusal to defer to an agency's interpretation of its rule when the complain- ing party "has failed to make an initial showing that he was adversely affected **95  by the lack of publication." Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984). The FLRA not only does not, and cannot, complain of a lack of interpretive notice, but it does not contend that it was adversely affected by inadequate publication.

The FLRA refuses to defer to OPM's interpretation of the routine use provision because it lacks the "normal in- dicia of being an official pronouncement and was plainly litigation-inspired." The United States Supreme Court has indicated that agencies' litigation-inspired positions need not be shown deference "when they are merely appellate counsel's 'post hoc rationalizations' for agency action, ad- vanced for the first time in the reviewing court." Martin,

113  L.  Ed.  2d  117,  111  S.Ct.  1171,  59  U.S.L.W.  4197,

4201 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S.

204,  212,  102  L.  Ed.  2d  493,  109  S.  Ct.  468  (1988). Assuming arguendo that the 1986 amicus interpretation was litigation-inspired, the OPM Director's adoption of that interpretation for future application clearly is not a post hoc rationalization. See FLRA v. Dep't of Navy, 941

F.2d at 59. Moreover, the Martin Court noted **96   that agencies frequently interpret regulations by less formal means that rulemaking:

966 F.2d 747, *776; 1992 U.S. App. LEXIS 11687, **96;

140 L.R.R.M. 2361

Page 32

*776

Although  not  entitled  to  the  same  deference  as  norms that derive from the exercise of the Secretary's delegated lawmaking powers, these informal interpretations are still entitled to some weight on judicial review. A reviewing court may certainly consult them to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reason- ableness of the Secretary's position.

Martin, 111 S.Ct. 1171, 59 U.S.L.W. at 4201 (citations omitted).

In this case,  the OPM consistently has stood by its interpretation of the "routine use" exception for the past six years. OPM set forth its interpretation of the routine use provision on home addresses in its amicus brief to the FLRA dated July 14, 1986. On June 25, 1987, the Director of OPM endorsed the OPM's interpretation in a letter to the Civil Division of the Department of Justice. Although this interpretation has not been formally promulgated as a guideline, the Director of OPM stated in 1987 that the official interpretation of the routine use as set forth in the

**97   1986 amicus brief "will remain in effect pending formal revision and issuance of a new guideline." Other Courts of Appeals have held that the OPM's interpreta- tion is deserving of judicial deference. See FLRA v. United States Dep't of Veterans Affairs, 958 F.2d 503 (OPM's in- terpretation "is reliable as an indication of OPM's standing view as to what constitutes a 'routine use.'"); FLRA v. U.S. Dep't of Navy, 941 F.2d at 58-60 (showing deference to OPM's interpretation under Martin,  113 L. Ed. 2d 117,

111 S.Ct. 1171, and adopting it as "reasonable" and "con- sistent with current law in the private sector");  Dep't of Treasury, 884 F.2d at 1454-56 (treating amicus interpre- tation as authoritative because position reflects view of agency head and litigation-inspired concerns of hastiness and inadequate opportunity for presentation of conflicting views are not present because OPM Director's adoption of brief as official OPM statement is functionally indistin- guishable from OPM's usual procedures for interpreting its routine use notice).

Finally,  this court has stated that publication of ad- ministrative  guidelines   **98              "is  not  required  when the agency's  rules are interpretive and not substantive." Kahn  v.  United  States,  753  F.2d  1208,  1222  n.8  (3d Cir.  1985).  Under  the  majority's  reasoning,  every  fed- eral agency would be required to disseminate adequately every interpretive statement so as to give the public, not necessarily parties to the litigation, notice of their con- tent. n5 Especially with an agency such as the OPM with millions of personnel records, this would be impractical and even foolhardy.

n5  " A   requirement  of  publication  for  all adjudicatory  opinions  which  formulate  interpre- tations  of  general  applicability  'would  be  so  im- practical  that  Congress  could  not  have  intended it.'  1  K.  Davis,  Administrative  Law  Treatise,  §

5:11 at 346 (2d ed. 1978). See Nason v. Kennebec

County  CETA,  646  F.2d  10,  19  (1st  Cir.  1981)

("Enormous difficulties would be created if every interpretive or policy statement of an agency had to be published.")." Cheshire Hosp. v. N.H.-Vt. Hosp. Service, 689 F.2d 1112, 1123 (1st Cir. 1982).

**99

IV. CONCLUSION

In sum, the Privacy Act bars the disclosure of the Navy employees' names and home addresses because such dis- closure  is  not  authorized  by  either  the  Act's  FOIA  ex- ception  or  its  exception  for  routine  uses.  The  majority has  been  unable  specifically  to  point  to  any  significant public interest that outweighs the "meaningful interest" in one's home address. Moreover, I can find no legal or other reasonable basis to reject OPM's interpretation of its regulation pertaining to "routine use."

Accordingly,  I  would  grant  the  Navy's  petition  for review and deny the FLRA's application for enforcement. Judges Hutchinson and Nygaard join in this dissent.

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