Federal Labor Relations Authority v. U.S. Department Of The Treasury (1989)

See, e.g., Local 1760, 786 F.2d at 556 n. 2; but see Treasury, 884 F.2d at 1456 (a post-Reporters Committee decision refusing to require disclosure as a “routine use” without a showing that alternate means of communication were insufficient).

See, e.g., Local 1760, 786 F.2d at 556 n. 2; but see Treasury, 884 F.2d at 1456 (a post-Reporters Committee decision refusing to require disclosure as a "routine use" without a showing that alternate means of communication were insufficient).

But see FLRA v. Department of the Treasury, 884 F.2d 1446 (D.C.Cir.1989), cert. denied, 493 U.S. 1055 , 110 S.Ct. 863 , 107 L.Ed.2d 947 , 948 (1990).

Nowhere do we find a qualification that the policies of collective bargaining should be integrated into FOIA"); Department of Treasury, 884 F. 2d, at 1453 ("Privacy Act exception b(2) speaks only of FOIA.

The Authority, as well as we, were obliged to accept the agency interpretation that concluded that the names and addresses of federal employees were not “necessary” for “collective bargaining.” Treasury, 884 F.2d at 1456. 4 The government’s reliance on Treasury is, however, unavailing because here we have no agency interpretation of the routine use language to which deference is due.

In one post-Reporters Committee case upon which the Navy relies, FLRA v. U.S. Dep’t of Treasury, 884 F.2d 1446 (D.C.Cir. 1989) (“Treasury”), cert. denied, 493 U.S. 1055 , 110 S.Ct. 863 , 864, 107 L.Ed.2d 948 (1990), the Court of Appeals for the D.C.

Distinguishing pre-Reporters Committee cases because they weighed the "special public interest in advancing collective bargaining as an aspect of the disclosure value, ... the clinching value," Treasury, 884 F.2d at 1451, that court relied upon Reporters Committee to characterize the public interest as confined to the FOIA's purpose of revealing governmental activities and expressly rejected an evaluation of the public interest "adjusted in light of" the Labor Statute's poli…

Treasury, 884 F.2d at 1453 (“Privacy Act exception b(2) speaks only of FOIA.

Treasury, 884 F.2d at 1453 ("Privacy Act exception b(2) speaks only of FOIA.

Circuit Treasury, 884 F.2d at 1449. 6 The final inquiry for determining whether the FLRA is entitled to disclosure of federal employee home addresses is an examination of whether the request is "prohibited by law." The Privacy Act generally prohibits disclosure of personnel information of federal employees without their consent, and lists exceptions to this general prohibition. 5 U.S.C. § 552a(b). 3 The FLRA does not dispute that the home addresses of federal employees are p…

Circuit Treasury, 884 F.2d at 1449.

It is well recognized that the FLRS is modeled on private labor law, see Bureau of Alcohol, Tobacco & Firearms, 464 U.S. at 92-93 , 104 S.Ct. at 441-42, and that "[p]rivate sector labor-relations case law, although not strictly binding as precedent, generally provides strong guidance in parallel public sector matters." Dep't of Treasury, Financial Management Service, 884 F.2d at 1458 (Ginsburg, J., concurring).

Therefore, questions of law arising from those statutes are reviewed de novo."); Treasury, 884 F.2d at 1451 ("As the FLRA is not charged with a special duty to interpret either the Privacy Act or the FOIA, we do not defer to its interpretations of those statutes but review them de novo"); Naval Communications, 941 F.2d at 55 ("[T]he FLRA is not entitled to deference in its interpretation of the Privacy Act and the FOIA, which are not within the FLRA's zone of expertise."); c…

Therefore, questions of law arising from those statutes are reviewed de novo.”); Treasury, 884 F.2d at 1451 (“As the FLRA is not charged with a special duty to interpret either the Privacy Act or the FOIA, we do not defer to its interpretations of those statutes but review them de novo”); Naval Communications, 941 F.2d at 55 (“[T]he FLRA is not entitled to deference in its interpretation of the Privacy Act and the FOIA, which are not within the FLRA’s zone of expertise.”); c…

See also Treasury, 884 F.2d at 1453 ("the argument here is not that the identity of the requester should alter the disclosure interest, but rather that a congressional (non-FOIA) disclosure mandate might do so").

Thus, we may defer to an agency’s litigating position if, for instance, it merely “articulate[s] an explanation of longstanding agency practice,” Akzo Nobel Salt, 212 F.3d at 1304 (citing Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C.Cir.1998)), or if the Secretary explicitly adopts the position expressed in the brief, see FLRA 884 F.2d at 1455, but not where the record “strongly suggests to us that the Secretary has in fact never grappled wi…

See also Treasury, 884 F.2d at 1453 (“the argument here is not that the identity of the requester should alter the disclosure interest, but rather that a congressional (non-FOIA) disclosure mandate might do so”).

It is well recognized that the FLRS is modeled on private labor law, see Bureau of Alcohol, Tobacco & Firearms, 464 U.S. at 92-93 , 104 S.Ct. at 441-42, and that “[pjrivate sector labor-relations case law, although not strictly binding as precedent, generally provides strong guidance in parallel public sector matters.” Dep’t of Treasury, Financial Management Service, 884 F.2d at 1458 (Ginsburg, J., concurring).

In FLRA, where a union sought lists of federal employees in certain bargaining units, we concluded that “federal employees[] have privacy interests in their names and home addresses that must be protected.” 884 F.2d at 1453.

Dep’t of Defense v. FLRA, 510 U.S. at 502 , 114 S.Ct. 1006 (finding that there was a "negligible FOIA-related public interest in disclosure” of agency employees' home addresses); Ray, 502 U.S. at 179 , 112 S.Ct. 541 (finding that disclosure of the requested material would not provide, or lead to, "any relevant information that is not set forth in the documents that have already been produced,” and that "[m]ere speculation about hypothetical public benefits cannot outweigh a …

FLRA, 884 F.2d at 1455; see also Church of Scientology v. IRS, 792 F.2d 153, 165 (D.C.Cir.1986) (en banc) (Silberman, J. concurring).

FLRA, 884 F.2d at 1455; see also Church of Scientology v. IRS, 792 F.2d 153, 165 (D.C.Cir.1986) (en banc) (Silberman, J. concurring).

OPM's interpretation of routine use "j" is entitled to "great deference" by this court, see Department of Treasury, 884 F.2d at 1451, and that interpretation makes it clear that the Union is entitled to disclosure of the disputed letter in this case.

See FLRA v. United States Dep’t of the Navy, 963 F.2d 124 (6th Cir.1992); FLRA v. United States Dep’t of Veterans Affairs, 958 F.2d 503 (2d Cir.1992); United States Dep’t of Navy v. FLRA, 975 F.2d 348 (7th Cir.1992); First Circuit Dep’t of Navy, 941 F.2d at 57-58; Dep’t of Treasury, 884 F.2d at 1453.

See FLRA v. United States Dep't of the Navy, 963 F.2d 124 (6th Cir.1992); FLRA v. United States Dep't of Veterans Affairs, 958 F.2d 503 (2d Cir.1992); United States Dep't of Navy v. FLRA, 975 F.2d 348 (7th Cir.1992); First Circuit Dep't of Navy, 941 F.2d at 57-58 ; Dep't of Treasury, 884 F.2d at 1453. 16 In a final bid to strike a balance favoring disclosure, the FLRA points out that private sector employers are required by law to release the addresses of bargaining unit emp…

The Department of Treasury court addressed precisely this issue, and explained that the "collective bargaining values" contained in the FSLMRS have no place in the exemption 6 balance. 884 F.2d at 1453.

The Department of Treasury court addressed precisely this issue, and explained that the “collective bargaining values” contained in the FSLMRS have no place in the exemption 6 balance. 884 F.2d at 1453.

Serv., 884 F.2d 1446, 1451 (D.C.

In Local 589, we stated that “Congress has gradually extended some of the protections in chapter 71 of title 5 to VA medical personnel, for example ... by granting all VA medical personnel limited collective bargaining rights in 1991.” 73 F.3d at 395 (emphases added). *35 Similarly, in United States Department of Veterans Affairs, Washington, D.C. v. FLRA, we differentiated the “right to negotiate collective bargaining agreements, or to administer such agreements through gri…

Serv., 884 F.2d 1446, 1451 (D.C.Cir.1989) (no deference to FLRA’s interpretation of Privacy Act).

Management Serv., 884 F.2d 1446, 1456 (D.C.

For example, in Financial Management, supra, we recognized that disclosure of the names and addresses of public employees “could provide leads for an investigative reporter seeking to ferret out what ‘government is up to,’ ” but dis *30 counted the value of that disclosure, albeit only slightly, because an investigative reporter would have “an alternative means of access” to federal employees in the form of “face-to-face conversation attained simply by following other leads …

Federal Labor Relations Auth. v. United States Dep't of the Navy, 941 F.2d at 59-60; Federal Labor Relations Auth. v. United States Dep't of the Treasury, 884 F.2d at 1456.

In Horner, the court concluded that the information sought was not of any public interest, 879 F.2d at 879 , and in FLRA the court found the public interest to be only slightly higher than in Horner. 884 F.2d at 1452-53.

In Horner , the court concluded that the information sought was not of any public interest, 879 F.2d at 879 , and in FLRA the court found the public interest to be only slightly higher than in Horner. 884 F.2d at 1452-53.

Management Serv., 884 F.2d 1446, 1451 (D.C.Cir.1989).

Cir. 1989), cert. denied, 493 U.S. 1055 (1990) (reasoning that a party making a FOIA-based information request must demonstrate that the public interest in disclosure outweighs the individual’s interest in the information sought); FLRA v. Department of Veteran Affairs, 958 F.2d 503 , 508-11 (2d Cir. 1992) (comparing the competing interests of public disclosure with the individual’s privacy right to determine whether disclosure is proper under FOIA); FLRA v. Department of the…

Federal Labor Relations Auth. v. Treasury, 884 F.2d at 1451.

Serv., 884 F.2d 1446, 1453 (D.C.

Serv., 884 F.2d 1446, 1451 (D.C.

Serv., 884 F.2d 1446 , 1453 (D.C.

Serv., 884 F.2d 1446, 1454 (D.C.Cir.1989), cert. denied, 493 U.S. 1055 , 110 S.Ct. 863 , 107 L.Ed.2d 947 (1990), such deference is not owed where there is "no agency interpretation of the routine use language” and where the agency offers not a "general construction of the routine use wording” but merely its own conclusion that specific information may or may not be disclosed under a routine use notice.

Christensen v. Harris County, 529 U.S. 576, 587 , 120 S.Ct. 1655 , 146 L.Ed.2d 621 (2000)(legal opinions by lawyers that lack the force of law are not entitled to deference); FLRA v. United States Dep’t of Treasury, 884 F.2d 1446 , 1455 (D.C.Cir. 1989)(“[A] position established only in litigation may have been developed hastily, or under special pressure, or without an adequate opportunity for presentation of conflicting views.”).

See FLRA v. Dep’t of Treasury, 884 F.2d 1446 , 1455-56 (D.C.Cir.1989).

See FLRA v. Dep't of Treasury, 884 F.2d 1446 , 1455-56 (D.C.Cir.1989). 32 First, there is no significant concern that judicial reliance on the interpretation of counsel (the United States Attorney) will have a significant lock-in effect on the relevant agencies, sticking them with an interpretation that they had not themselves espoused.

See Federal Labor Relations Auth. v. United States Dep't of Treasury, 884 F.2d 1446 , 1455 (D.C.

See Federal Labor Relations Auth. v. United States Dep’t of Trea *199 sury, 884 F.2d 1446 , 1455 (D.C.Cir.1989)(identifying these basic justifications for courts’ reluctance to defer to agency counsel’s litigation position); see also Skandalis v. Rowe, 14 F.3d 173, 179 (2d Cir.1994)(suggesting that a position taken during litigation that is consistent with an agency’s earlier position is a “factor in determining whether deference is appropriate”).

See Federal Labor Relations Auth. v. United States Dep’t of Treasury, 884 F.2d 1446 , 1456 (D.C.Cir.1989) (concerning federal agencies’ duty to disclose federal employees’ names and addresses to labor unions); American Iron and Steel, 560 F.2d at 597-99 (concerning application of water pollution regulations); Moch v. East Baton Rouge Parish School, 548 F.2d 594 (5th Cir.1977) (concerning apportionment of parish school board); Christian v. Jemison, 303 F.2d 52, 54-55 (1962) (…

See Federal Labor Relations Auth. v. United States Dep't of Treasury, 884 F.2d 1446 , 1456 (D.C.Cir.1989) (concerning federal agencies' duty to disclose federal employees' names and addresses to labor unions); American Iron and Steel, 560 F.2d at 597-99 (concerning application of water pollution regulations); Moch v. East Baton Rouge Parish School, 548 F.2d 594 (5th Cir.1977) (concerning apportionment of parish school board); Christian v. Jemison, 303 F.2d 52, 54-55 (1962) (…

See FLRA v. Department o f Treasury, 884 F.2d 1446 , 1451 (D.C.