REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Provision of Information

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Where union’s RFI requested health and safety information regarding its members’ worksite, a national research lab operated by the University, PERB crafted its remedy with due regard to the Privacy Act of 1974 (Privacy Act; 5 U.S.C. § 552a). Because it is a federal statute, Supreme Court precedent such as U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487 (DOD v. FLRA) controls PERB’s Privacy Act interpretation. The main consequence is as follows: whereas FOIA exemptions do not independently bar disclosure under HEERA, the Privacy Act can constrain disclosure of certain records, and in evaluating such cases PERB applies the FOIA Exemption 6 standards explained in DOD v. FLRA, supra, 510 U.S. 487. Thus, when a federal agency claims the Privacy Act bars disclosure and a requesting union interposes the FOIA exception, the agency has the initial burden to show: “(1) that the information requested is contained in a ‘system of records’ under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests.” (U.S. Dep’t of Transp. Fed. Aviation Admin, New York TRACON Westbury (1995) 50 FLRA 338, 345.) If the agency meets this burden, then the union must: “(1) identify a public interest that is cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest.” (Ibid.) At that point, it is necessary to “balance the privacy interest against the public interest.” (Ibid.) If the public interest in disclosure outweighs the privacy interest, then a record may be disclosed in unredacted form. (See, e.g., National Ass’n of Atomic Veterans, Inc. v. Director, Defense Nuclear Agency (D.D.C. 1984) 583 F. Supp. 1483, 1485-1488 [granting FOIA request by veterans’ group based on public interest in helping veterans exposed to radiation]; Dep't of Veterans Affairs, Veterans Affairs Med. Ctr. Decatur, Georgia (2019) 71 FLRA 428, 445-449 [rejecting argument of Veterans Administration that Privacy Act required documents to be produced only in redacted form].) In contrast, if the public interest in disclosure does not outweigh that privacy interest, FOIA requires the federal agency or contractor to segregate identifying information (typically via redaction) and disclose the remainder of the record. (5 U.S.C. § 552(a)(8)(A)(ii) & (b), final par.; Department of Air Force v. Rose (1976) 425 U.S. 352, 374 & 381-382 [although redaction of identifying information provides individuals with imperfect privacy protection, redaction is a time tested and practical means of implementing FOIA’s clear segregation requirement].) (pp. 27-28.)