EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy

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An agency or contractor may disclose Privacy Act records to the extent they are disclosable under FOIA. (5 U.S.C. § 552a(b)(2).) FOIA, in turn, requires that public records be disclosed unless such records fall under one of nine specific exemptions. (5 U.S.C. § 552(b); Milner v. Department of Navy (2011) 562 U.S. 562, 564 (Milner).) The FOIA exception is the broadest Privacy Act exception, because FOIA’s nine exemptions are construed narrowly and agencies must produce all records not covered by an exemption. (Milner, supra, at p. 571 [noting FOIA’s “goal of broad disclosure” and instructing that exemptions be given a “narrow compass”]; Department of Air Force v. Rose (1976) 425 U.S. 352, 360-361 [FOIA’s “dominant objective” is to promote “disclosure, not secrecy”].) Thus, “[t]he net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.” (News-Press v. U.S. Dept. of Homeland Sec. (11th Cir. 2007) 489 F.3d 1173, 1189.) Where an employer invokes the Privacy Act in response to a union’s RFI and the union relies on the FOIA exception, the resolution often turns on FOIA’s “Exemption 6,” which protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. § 552(b)(6).) Thus, through a “somewhat convoluted path of statutory cross-references,” the Privacy Act only bars disclosure of personnel, medical, and similar files to the extent such disclosure “would constitute a clearly unwarranted invasion of personal privacy.” (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 495.) (pp. 25-26.)