Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees ( 2015 )

Authority of the Chairman of the Defense Nuclear
Facilities Safety Board to Disclose Performance
Appraisals of Senior Executive Service Employees
In the circumstances presented here, the organic statute of the Defense Nuclear Facilities Safety Board
requires the Chairman to grant a requesting Board member access to written performance appraisals
of Senior Executive Service employees.
In these circumstances, the Privacy Act does not bar the disclosure of those appraisals to the requesting
Board member.
May 21, 2015
MEMORANDUM OPINION FOR THE ACTING CHAIRMAN OF THE DEFENSE
NUCLEAR FACILITIES SAFETY BOARD*
The Defense Nuclear Facilities Safety Board (“Board”) was established in 1988
as an independent establishment in the Executive Branch charged with advising
the Secretary of Energy about public health and safety protections at defense
nuclear facilities. See National Defense Authorization Act, Fiscal Year 1989, Pub.
L. No. 100-456, sec. 1441(a)(1), §§ 311–12, 102 Stat. 1918, 2076–78 (1988),
codified as amended at 42 U.S.C. §§ 2286(a), 2286a(a) (2012). The Board is
composed of five members, one of whom is designated by the President as its
Chairman. 42 U.S.C. § 2286(b)(1), (c)(1). The Chairman acts as the Board’s “chief
executive officer,” and, “subject to such policies as the Board may establish, . . .
exercise[s] the functions of the Board with respect to . . . the appointment and
supervision of employees of the Board” and other specified matters. Id.§ 2286(c)(2). Each of the Board’s members is entitled to “equal responsibility and
authority in establishing decisions and determining actions of the Board”; “full
access to all information relating to the performance of the Board’s functions,
powers, and mission”; and one vote. Id. § 2286(c)(5).
In light of this division of authority between the Board and the Chairman, and
in light of the restrictions imposed by the Privacy Act of 1974, 5 U.S.C. § 552a,
your office asked us to clarify the scope of the Chairman’s authority to disclose
written performance appraisals of Senior Executive Service (“SES”) employees to
a Board member who has asked to see them. See Letter for Karl R. Thompson,
Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Peter
S. Winokur, Chairman, Defense Nuclear Facilities Safety Board at 1 (Aug. 4,
2014). This question was prompted by a disagreement between the requesting
Board member, who asserts that the Board’s organic statute grants him a right to
*
Editor’s Note: Some names and titles have been redacted from this opinion to protect the privacy
of individuals.
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Opinions of the Office of Legal Counsel in Volume 39
view the appraisals, and the Office of General Counsel (“OGC”), which contends
both that the organic statute does not grant the member a right to view the
appraisals and that the Privacy Act prohibits their disclosure. See id. at 1–2.1 We
conclude that in the circumstances presented here, the Board’s organic statute
requires the Chairman to grant the requesting Board member access to SES
performance appraisals, and that the Privacy Act does not bar their disclosure.
I.
We begin with the Board’s organic statute, 42 U.S.C. §§ 2286–2286l, leaving
aside for the moment any restrictions on disclosure the Privacy Act may impose.
Section 2286(c) of this statute sets forth the respective authorities of the Board’s
Chairman and its members. Paragraph (2), which concerns the Chairman, provides
that, “[i]n accordance with paragraph (5), the Chairman shall be the chief execu-
tive officer of the Board and, subject to such policies as the Board may establish,
shall exercise the functions of the Board with respect to” three administrative
matters: “(A) the appointment and supervision of employees of the Board; (B) the
organization of any administrative units established by the Board; and (C) the use
and expenditure of funds.” Id. § 2286(c)(2). The referenced “paragraph (5),” in
turn, describes the authorities of the Board’s members. It states that “[e]ach
member of the Board . . . shall (A) have equal responsibility and authority in
establishing decisions and determining actions of the Board; (B) have full access
to all information relating to the performance of the Board’s functions, powers,
and mission; and (C) have one vote.” Id. § 2286(c)(5).
1
The Board member and OGC set forth their views in a series of memoranda submitted to the
Chairman. See Memorandum for Peter S. Winokur, Chairman, Defense Nuclear Facilities Safety
Board, from the Office of General Counsel, Defense Nuclear Facilities Safety Board, Re: Disclosure of
Senior Executive Service Performance Appraisals (May 22, 2014) (“OGC Memorandum”); Memoran-
dum for Peter S. Winokur, Chairman, Defense Nuclear Facilities Safety Board, from a Member,
Defense Nuclear Facilities Safety Board, Re: Analysis of Enabling Statute in Light of a Member’s
Request for Access to Performance Appraisals (May 29, 2014) (“Member Memorandum”); Memoran-
dum for Peter S. Winokur, Chairman, Defense Nuclear Facilities Safety Board, from the Office of
General Counsel, Defense Nuclear Facilities Safety Board,, Re: Disclosure of Senior Executive Service
Performance Appraisals—Reply to Board Member Analysis (June 3, 2014) (“OGC Reply”);
Memorandum for Peter S. Winokur, Chairman, Defense Nuclear Facilities Safety Board, from a
Member, Defense Nuclear Facilities Safety Board, Re: Reply to [OGC] Memo of June 3, 2014 (June 4,
2014) (“Member Reply”). We also requested and received the views of the Office of Management and
Budget (“OMB”) and the Office of Personnel Management (“OPM”) about the issues addressed in this
opinion. See Memorandum for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, from Steven D. Aitken, Deputy General Counsel, OMB (Oct. 17, 2014); Memorandum for
Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Kamala
Vasagam, General Counsel, OPM (Mar. 11, 2015). The Board has agreed to be bound by our decision.
See Affirmation of Board Voting Record, Doc. No. 2014-136 (Sept. 11, 2014).
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Authority of Chairman of DNFSB to Disclose Performance Appraisals of SES Employees
As both the requesting Board member and OGC agree, section 2286(c)(5)(B)
grants each Board member a right of access to records that “relat[e]” to the
Board’s “functions, powers [or] mission,” and implicitly imposes on the Chairman
the duty to grant a member’s request for access to such records. See Member
Memorandum at 1; OGC Memorandum at 5. The Board member and OGC
disagree, however, over whether the requested performance appraisals are subject
to this statutory right of access. The Board member argues that one of the
“functions of the Board” is “the appointment and supervision of employees,” and
that the appraisals relate to this function because they would assist the Board in
“effectively establish[ing] appropriate policies” concerning employee supervision.
Member Memorandum at 1 & n.3; see Member Reply at 1. OGC, in contrast,
argues that the Board’s “functions” are limited to certain “substantive policy
decisions” relating to defense nuclear facilities, while “the Chairman alone is
responsible for . . . administrative areas” such as employee supervision. OGC
Memorandum at 4–5; see OGC Reply at 5. Moreover, OGC questions whether
viewing performance appraisals would assist in or otherwise “relate” to the
formulation of policy concerning employee supervision. See OGC Reply at 2–3.
We conclude that, in the circumstances presented here, the Board’s organic
statute is best read to grant the requesting Board member a right of access to SES
performance appraisals. To start, we think that the text of section 2286(c)(2)
makes plain that one of the Board’s “functions” is to formulate policies concerning
the supervision of employees. By its terms, this provision deems employee
supervision one of the “functions of the Board,” albeit one to be exercised by the
Chairman. And it expressly authorizes the Board to “establish” “policies” to which
the Chairman is “subject” when supervising employees. Further reinforcing the
Board’s authority in this area, section 2286(c)(2) states that the Chairman must
conduct his supervision “in accordance with paragraph (5)”—that is, the paragraph
detailing each Board member’s authority to participate in Board decisions and
obtain full access to pertinent information. Read naturally, these provisions thus
make clear that one of the Board’s functions is to “establish” “policies” regarding
employee supervision. As a result, under section 2286(c)(5)(B), Board members
are entitled to access information that “relates to” that function. See BedRoc Ltd.,
LLC v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the
statutory text, and ends there as well if the text is unambiguous.”).
OGC disputes this conclusion on two principal grounds. First, OGC observes
that section 2286(c)(2) designates the Chairman as “chief executive officer of the
Board,” and directs him to “exercise the functions of the Board” with respect to
administrative matters, including employee supervision. In OGC’s view, this
language indicates that “the Chairman alone is responsible” for all matters relating
to the supervision of employees. OGC Memorandum at 5; see id. at 1. But as just
noted—and as OGC elsewhere concedes—Congress expressly qualified the
Chairman’s administrative authority by requiring him to exercise that authority
“subject to such policies as the Board may establish,” and “in accordance with
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paragraph (5).” See OGC Reply at 3 (acknowledging that “[b]y stating that the
Chairman exercises his administrative duties subject to the Board’s policies,
Congress maintained some level of Board control over the Chairman,” including
with respect to the “supervision of personnel”). Furthermore, in a prior opinion,
this Office rejected the argument that a statute designating a board’s chairperson
“‘Chief Executive Officer,’” and directing him to “‘exercise the . . . functions of
the Board,’” granted the chairperson “complete authority over all aspects of the
[Board]” except those expressly vested in the Board as a whole. Division of
Powers and Responsibilities Between the Chairperson of the Chemical Safety and
Hazard Investigation Board and the Board as a Whole, 24 Op. O.L.C. 102, 104,
107 (2000) (“Chemical Safety Board”) (quoting 42 U.S.C. § 7412(r)(6)(B)).
Despite such language, we explained, “the very nature of the chairperson’s office
as the executor and administrator of the Board’s decisions and policies” rendered
him “subject in the exercise of his functions and duties as chairperson to oversight
by the Board as a whole.” Id. at 104. We indicated that this conclusion also
followed from a “basic premise governing deliberative bodies”—namely, “that the
majority rules”—and from the “general understanding of the meaning of what it
means to be a CEO”; in particular, that such an officer is “‘subordinate in legal
authority’” to the board “as a matter of corporate common law.” Id. at 105, 107
(citation omitted). Here too, we think that the Chairman is, as the statute says,
“subject to” the Board’s policymaking authority when he supervises employees.2
Second, OGC contends that, whatever the scope of the Board’s authority, the
Board’s statutory “functions” are limited to those listed in a separate provision of
its organic statute, 42 U.S.C. § 2286a(b), which states that “[t]he Board shall
perform the following functions,” and lists several substantive responsibilities
relating to inspection and review of defense nuclear facilities. See OGC Memo-
randum at 3 & n.3; OGC Reply at 5. The language of this provision, however, is
not on its face definitional or exclusive. Moreover, reading section 2286a(b) as an
exhaustive list of the Board’s functions would generate a conflict with other
provisions of the organic statute. As we have noted, section 2286(c)(2) expressly
deems “the appointment and supervision of employees” and several additional
matters to be “functions of the Board”; likewise, section 2286b authorizes the
Board to “hire such staff as it considers necessary to perform the functions of the
Board,” 42 U.S.C. § 2286b(b)(1)(A), an authorization that presumably permits the
2
To be sure, the Chairman possesses “a degree of managerial autonomy on which the Board, in the
proper exercise of its powers, cannot trench.” Chemical Safety Board, 24 Op. O.L.C. at 105. This
autonomy extends, for instance, to “minute administrative problems” and “some day-to-day aspects of
Board affairs” that are “unrelated to the Board’s effective execution of its statutory responsibilities.” Id.
at 104–05. Because it is clear that the Board has the authority to “establish” “policies” concerning
employee supervision, however, we need not consider the scope of the Chairman’s managerial
autonomy, or whether a Board member has a right to obtain records that relate only to matters within
the scope of that autonomy.
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Authority of Chairman of DNFSB to Disclose Performance Appraisals of SES Employees
Board to hire employees to perform administrative tasks. We therefore think that
section 2286a(b) is better read as an enumeration of certain substantive Board
functions for which the Board alone is responsible, while section 2286(c)(2) lists
additional administrative functions for which the Board shares responsibility with
the Chairman.
Having concluded that one of the Board’s functions is to formulate policies
concerning employee supervision, we further conclude that the requested SES
performance appraisals “relat[e] to” that function. Id. § 2286(c)(5)(B). The phrase
“relate to” has a “broad common-sense meaning,” Metro. Life Ins. Co. v. Massa-
chusetts, 471 U.S. 724, 739 (1985), and denotes some “connection or relation”
between two items, Webster’s New World College Dictionary 1225 (5th ed.
2014). The requesting Board member has asserted that viewing SES appraisals
would assist the Board in evaluating alleged complaints about “the execution of
the performance appraisal system,” and in “establish[ing] appropriate policies” to
address those complaints. Member Memorandum at 1 & n.3; see Member Reply
at 1. OGC questions this assertion, noting both that the Board already has access to
the “performance appraisal system”—a system containing the names, positions
and “Executive Performance Agreements” of each SES employee, but not their
performance appraisals—and that an employee committee charged with evaluating
employee dissatisfaction completed its work without viewing performance
appraisals. OGC Reply at 2–3. But we think it reasonable to conclude that the
Board’s oversight of employee supervision, and its formulation of policies on the
subject, would be assisted by observing how employee supervision is carried out
in practice. Indeed, by stating that the Chairman must carry out the Board’s
administrative functions “[i]n accordance with paragraph (5)”—the provision
containing the Board members’ right of access—Congress suggested that Board
members were entitled to obtain information about the manner in which the
Chairman carries out those functions. Consequently, we conclude that the SES
performance appraisals “relate” to the Board’s function of making policy about
employee supervision, and thus that the statute’s full-access provision, considered
on its own, requires the Chairman to grant the Board member’s request for access
to those appraisals.3
3
OGC suggests that if Board members have full access to information about the Chairman’s
management of the SES appraisal system under section 2286(c)(5)(B), they must also have “equal
responsibility and authority” for making appraisal decisions, and “one vote” on such decisions, under
section 2286(c)(5)(A) and (C). OGC Reply at 3. But we conclude only that the Board’s functions
include “establish[ing]” “policy” concerning employee supervision, and that the Board may obtain
information about appraisals insofar as it relates to that policymaking function. We do not consider
whether the Board may lawfully participate in employee supervision on an individual basis, or whether
it may obtain information that relates exclusively to such individual supervision. See supra note 2.
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Opinions of the Office of Legal Counsel in Volume 39
II.
We now consider whether the Privacy Act imposes any restriction on the dis-
closure of SES performance appraisals to the requesting Board member. The
Privacy Act prohibits an agency or its officers from disclosing “any record which
is contained in a system of records by any means of communication to any
person,” unless “the individual to whom the record pertains consents,” or one of
twelve exceptions applies. 5 U.S.C. § 552a(b), (i). The Act defines a “record” as
“any item, collection, or grouping of information about an individual that is
maintained by an agency, including, but not limited to, his . . . employment
history” that “contains his name . . . or other identifying particular.” Id.
§ 552a(a)(4). And it defines a “system of records” as “a group of any records
under the control of any agency from which information is retrieved by the name
of the individual or by . . . other identifying particular.” Id. § 552a(a)(5). The
Board is an agency subject to the Act, Energy Research Found. v. Def. Nuclear
Facilities Safety Bd., 917 F.2d 581, 585 (D.C. Cir. 1990), and each SES perfor-
mance appraisal contains “information about an individual[’s] . . . employment
history” and may be retrieved by the individual’s name. See OGC Memorandum
at 8. Accordingly, the Privacy Act prohibits the appraisals’ disclosure unless the
subject of each appraisal consents or one of the Act’s enumerated exceptions
applies.
The Privacy Act’s first exception—commonly referred to as the “need to
know” exception—authorizes an agency to disclose an otherwise protected record
“to those officers and employees of the agency which maintains the record who
have a need for the record in the performance of their duties.” 5 U.S.C.
§ 552a(b)(1). The requesting Board member is plainly an officer of the Board, the
agency that “maintains” the SES appraisals. See id. § 552a(a)(3) (defining
“maintain,” for purposes of the Privacy Act, to mean “maintain, collect, use, or
disseminate”); id. § 4312(a) (requiring each agency to “develop one or more
performance appraisal systems” and use that system to evaluate SES employees);
5 C.F.R. §§ 293.401, 293.402(b) (2014) (requiring each agency to “provide for
maintenance of performance-related records for [its] employees,” including
employees in “Senior Executive Service positions”). The first exception thus
applies if the Board member has a “need to know” the contents of the appraisals.
Consistent with the views summarized above, OGC contends that because
employee supervision is not among the Board’s functions, Board members do not
have a “need to know” that would justify their examining the performance
appraisals. See OGC Memorandum at 9. The Board member disagrees. See
Member Memorandum at 1. As we have explained above, we believe that the
Board’s official functions include, at a minimum, developing and setting policies
regarding employee supervision. And for many of the same reasons that SES
performance appraisals “relate” to the Board’s performance of this policymaking
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Authority of Chairman of DNFSB to Disclose Performance Appraisals of SES Employees
function, we conclude that the requesting Board member has a “need” for those
records in carrying out his official duties.
This conclusion rests largely on an analysis of the statutory term “need.” Alt-
hough this term often refers to something that is indispensable or required, it can
also refer to something that is merely useful or desirable. See Webster’s New
World College Dictionary 977 (defining “need” as “something useful, required or
desired that is lacking”). Legal texts frequently use the word in this broader sense.
See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 415 (1819)
(construing the word “necessary” in the Necessary and Proper Clause to mean
“convenient,” “useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v.
FCC, 330 F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation of
“necessary” in telecommunications statute as referring to “a strong connection”
between means and ends). Congress, moreover, indicated that it intended this term
to be read broadly in the “need to know” exception. The Privacy Act’s Senate
committee report states that the exception was intended to disallow disclosure “for
personal, political, or commercial motives unrelated to the agency’s administra-
tive mission.” S. Rep. No. 93-1183, at 52 (1974) (emphasis added). It was not, the
report’s authors stressed, designed to be so demanding as to “imped[e] the day-to-
day internal operation of the agency and its offices throughout the country.” Id. at
70; see H.R. Rep. No. 93-1416, at 12 (1974) (“It is not the Committee’s intent to
impede the orderly conduct of government . . . .”).
Courts have generally applied the “need to know” exception in a manner con-
sistent with this broader understanding of the term “need.” The Tenth Circuit, for
instance, held in Pippinger v. Rubin that agency investigators “need[ed]” to know
information that “put the investigation in context, and might potentially have
enabled them to connect the information . . . with other data already known to
them.” 129 F.3d 519, 530 (10th Cir. 1997); see id. (“To hold otherwise would slice
the bread of the ‘need to know’ exception far thinner than we believe Congress
intended.”). Similarly, the D.C. Circuit held in Bigelow v. Department of Defense
that once “doubts . . . had been raised in [a military commander’s] mind” about his
subordinate’s loyalty, the commander had a need to know information that would
enable him to “make sure [the subordinate] was worthy of trust.” 217 F.3d 875,
877 (D.C. Cir. 2000). Other courts have likewise concluded that agency officials
had a “need” for information whose exact value was uncertain or only incremen-
tal. See, e.g., Britt v. Naval Investigative Servs., 886 F.2d 544, 549 n.2 (3d Cir.
1989) (supervisor had a need to know information on the basis of which he “might
need to reevaluate” his subordinate’s responsibilities); Shayesteh v. Raty, No.
2:05-CV-85 TC, 2007 WL 2317435, at *4 (D. Utah 2007) (prosecutors had a need
to know information that was “relevant to determining whether [the defendant’s]
funds might be subject to forfeiture”); Viotti v. U.S. Air Force, 902 F. Supp. 1331,
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Opinions of the Office of Legal Counsel in Volume 39
1337 (D. Col. 1995) (staff members had a need to know the reason their supervisor
had been removed). In each case, the court permitted disclosure of records that
held significant and articulable, but not indispensable, value to an agency official.4
We think that the requesting Board member has a comparable need for the SES
performance appraisals. As we have discussed, the member seeks the appraisals in
order to enable him to assess alleged complaints about the performance appraisal
system and to develop policies that would address those complaints. Like the
requesters in Pippinger and Bigelow, the member has articulated a specific
determination that he believes the records would enable him to make. That
determination is one for which the member bears responsibility, in his capacity as
one of five coequal leaders of the agency charged with setting policies concerning
the supervision of employees. See Bigelow, 217 F.3d at 877 (considering whether
“the official examined the record in connection with the performance of duties
assigned to him”). He has reasonably asserted that it would be difficult to make
the determination in the absence of the requested records. See Pippinger, 129 F.3d
at 530 (noting “inherent difficulty” of conducting investigation without the
information at issue). That determination is “generally related to the purpose for
which the record[s] [are] maintained,” Privacy Act Guidelines, 40 Fed. Reg.
28949, 28954 (July 1, 1975), as it concerns whether the appraisals are serving their
designated purposes fairly and effectively. And there is no indication that the
member’s stated motives in seeking the record are pretextual. Cf. Boyd v. Snow,
335 F. Supp. 2d 28, 38–39 (D.D.C. 2004) (denying summary judgment to an
agency where it was “far from clear” that the agency had disclosed a record “for
the reason [it] offered” during litigation). In these circumstances, it would place an
unwarranted burden on the member’s exercise of his policymaking role if he could
not have access to the information he seeks. We therefore conclude that the “need
to know” exception permits the records’ disclosure.5
4
Although it is true, as OGC contends, that in the employment context courts have frequently
found the requisite “need to know” based on an employer’s interest in taking action affecting a
particular employee, see OGC Memorandum at 8–9, they have also deemed sufficient other needs
relating to the supervision of agency employees or contractors. See, e.g., Reuber v. United States, 829
F.2d 133, 138, 139–40 (1987) (agency officials had a need to know whether a contractor took proper
disciplinary actions in order to confirm the contractor’s “awareness of the delicate circumstances and
its commitment to better in-house discipline”); Schmidt v. U.S. Dep’t of Veterans Affairs, 218 F.R.D.
619, 631–32 (E.D. Wis. 2003) (agency employees had a need to know employees’ Social Security
numbers in order to implement an emergency-record system); Ciralsky v. CIA, 689 F. Supp. 2d 141,
155 (D.D.C. 2010) (investigative panel had a need to view a Jewish employee’s personnel file to aid its
investigation into anti-Semitism at agency); Viotti, 902 F. Supp. at 1337. There is thus no requirement
that information disclosed under the “need to know” exception be intended to inform a personnel action
concerning the employee whose information was disclosed.
5
Because we find the Privacy Act’s first exception applicable, we need not consider whether any of
its other exceptions applies, or what the outcome would be if the Privacy Act barred disclosure of
records to which the Board’s organic statute gave the requesting Board member a statutory right of
access.
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Authority of Chairman of DNFSB to Disclose Performance Appraisals of SES Employees
III.
For the foregoing reasons, we conclude that the Board’s organic statute re-
quires, and the Privacy Act allows, the Chairman to grant the requesting Board
member access to SES performance appraisals. The Chairman therefore must
grant the member’s request for access. See Relationship Between Section 203(d) of
the Patriot Act and the Mandatory Disclosure Provision of Section 905(a) of the
Patriot Act, 26 Op. O.L.C. 107, 112–13 (2002) (concluding that where one statute
“mandates disclosure” of certain information, and another statute “sets forth a
permissive grant of authority” to disclose that information, the result is that
information subject to both statutes “must be disclosed” (emphases in original)).
We note that, upon obtaining these records, the Board member will be required to
adhere to any applicable requirements concerning the records’ subsequent use or
disclosure, including restrictions found in the Privacy Act and any other applicable
laws or regulations.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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